S.M. NAZIR vs NATIONAL INDUSTRIAL COOPERATIVE FINANCE CORPORATION
This matter concerns a petition for leave to appeal involving a dispute over financial liability and alleged fraud. The petitioner sought leave to appeal on the condition of providing an undertaking regarding the repayment of funds allegedly withdrawn from the respondent's account. The core legal question addressed was whether the petitioner's submitted undertaking satisfied the court's prior conditions for granting leave and whether the previously granted stay order should continue. The Supreme Court held that the petitioner had substantially complied with the conditions, overruling the respondent's objections to the form of the undertaking. Consequently, the court ordered the continuation of the stay order without conditions until the final disposal of the appeal. Furthermore, the court directed that the manager and other parties involved in the alleged fraud be impleaded in the proceedings. The court established the principle that in cases involving multiple parties in a fraud, the parties are at liberty to argue whether recovery should be sought from all involved individuals and whether the failure to pursue others affects the bona fides of the recovery claim.
- Does an undertaking submitted by a petitioner satisfy the conditions for leave to appeal if it substantially complies with the court's requirements?
- Can a stay order granted with conditions be continued without conditions upon the grant of leave to appeal?
- In cases of alleged fraud involving multiple parties, is it necessary to implead all individuals involved to determine liability for recovery?
' MUHAMMAD AFZAL ZULLAH, J.-- Leave to appeal having been (A granted on the condition of the submission of an undertaking by the petitioner, he has submitted the undertaking. It reads as follows:- "1. That the abovenoted petition is pending before this Honourable Court.
2. That the following undertaking is submitted by S.M. Nazir,Proprietor of S.M. Nazir & Sons, near Firdous Market, Lahore.
3. That the petitioner undertakes that an amount of Rs,1,70,075 which is said to have been withdrawn by him in his account with the respondent. He undertakes to make the payment of this amount to the Bank in instalments.
4. That the payment will be made in instalments spreading over a period of two years.
5. That the respondent will also give an undertaking to this Honourable Court that in case they recover this amount from their Manager Rana Muhammad Saleem or from any other source, they will refund the money back to the petitioner.
6. That the payment made to the respondent will be under protest and without any prejudice to the submissions made by the petitioner in the abovenoted appeal.
7. That the petitioner has given this undertaking of his own free will and without any undue influence.
' It is, therefore, respectfully prayed that the abovenoted undertaking may kindly be entertained.
' Submitted by, Sd/-xxxxxxxx (S.M. Nazir) Petitioner/Appellant."
' Mr. MA. Qureshi learned counsel for the respondent, has objected to the form of the undertaking.
After hearing both the sides, at length, we are of the view that the petitioner has substantially complied with the condition laid down in the order. Objection is over ruled.
Regarding the stay order granted on 16-6-1985 carrying the condition of interest, in view of the grant of leave to appeal (which is now, after hearing the objections from the respondents' side, is declared and held as open for all the parties concerned), we consider it just and fair to continue the said order till disposal of the appeal, without condition.
' In the foregoing context it has become necessary to implead the manager and all others concerned with the fraud directly or indirectly. Order accordingly.
' It is clarified that the parties, in view of the open leave to appeal, shall be at liberty to take all the available points including whether, in case several persons are involved in the fraud, the recovery should not be made from all and if it is sought to be made from one only whether it is not necessary to show bona fides for not recovering from others and effect thereof.
' Appeal shall come up for hearing in accordance with the normal practice of the Court. Security shall be Rs,5,000.