ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Suit No. 133 of  2001

Date                                    Order with signature of Judge

1.         For orders on maintainability of suit.

2.         For hearing of CMA No.11253/08.

3.         For Issues.

 

 

17.5.2010

Mr. Suresh Jethanand, Advocate for the plaintiff.

Mr. Abdul Qayyum Abbasi, Advocate for the defendant.

---------------

            By the orders dated 25.2.2009 during the course of arguments this Court observed that, "The agreement admittedly executed between the plaintiff and the defendant No.2 in respect of suit property depicts that the sale deed in respect thereof shall be executed by defendant No.2 after getting the property redeemed from the bank. Admittedly the property has not yet been redeemed, therefore, it is to be argued by the learned counsel for the plaintiff that how the suit is maintainable for want of cause of action and why the plaint may not be rejected under Order 7 Rule 11 CPC."

            Today Mr. Suresh Jethanand learned counsel for the plaintiff argued the matter on the maintainability of the present suit. According to the learned counsel for the plaintiff under Article 113 of the Limitation Act the limitation period is three years from the date fixed for performance or, if no such date is fixed, when the plaintiff has notice that performance is refused.

            Learned Counsel for the plaintiff contends that the plaintiff on 27th June, 1992 entered into a sale agreement with the defendant No.1 through his Attorney the defendant No.2 to purchase the property bearing No.B-1/A, admeasuring 560 square yards, Block-17, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi for a sale consideration of Rs.46,00,000/-. It was further contended that the defendants undertook to execute the Conveyance Deed

 

 

 

-:  2  :-

 

after getting the mortgage of the suit property redeemed with Muslim Commercial Bank Ltd. Karachi. It is also urged by the learned counsel for the plaintiff that the defendant No.1 has filed the written statement in the present suit and admitted mostly the contents of the plaint. Learned counsel for the plaintiff submits that the plaintiff has filed application being CMA No.11253/2008 under Order 12 Rule 6 CPC for judgment on admission of defendant No.1. Learned counsel for the plaintiff relied upon 2007 SCMR page 433, 2007 SCMR page-1933, 2007 SCMR page-1792 and 2006 PLD Karachi page-621.

            Mr. Abdul Qayoom Abbasi, Advocate appearing for the defendant No.2 referred paragraph No.6 and prayer clause 10-A of the memo of paint, wherein it is stated that the suit property was/is mortgaged with Muslim Commercial Bank Ltd Karachi and the same has not yet been redeemed. Mr. Abdul Qayoom Abbasi, Advocate referred to Section 15(11) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, according to which all disputes relating to the sale of the mortgaged property including disputes amongst mortgages in respect of distribution of the sale proceeds, shall be decided by the Banking Court. Learned counsel for the defendant No.2 submits that there is no pleadings with regard to refusal of performance of the agreement, therefore, the suit is premature and he relied upon the SBLR 2010 Sindh page-525.

            I have gone through the pleadings of the parties and heard the learned counsels for the parties at length. It is an admitted position that the suit property was mortgaged with Muslim Commercial Bank Ltd Karachi before filing of the present suit and the same has not been redeemed as yet. The plaintiff has not made Muslim Commercial Bank Ltd Karachi a party in the

 

 

-:  3  :-

 

present suit where as the plaintiff in paragraphs Nos.6 and 10-A of the memo of plaint and in clause-6 of the sale agreement filed as annexure 'C' with memo of plaint admitted that the suit property is mortgaged with the Muslim Commercial Bank Ltd. According to Section 15(11) of the Financial Institutions (Recovery of Finances) Ordinance 2001 or dispute relating to the sale of mortgaged property including disputes amongst mortgagors in respect of distribution of sale proceeds shall be decided by the Banking Court. The learned counsel for the plaintiff has argued nothing about the fact that before execution of the sale agreement dated 27th June, 1992 the suit property was admittedly mortgaged with Muslim Commercial Bank Ltd, Karachi and has not been redeemed as yet. The learned counsel for the plaintiff failed to explain as to why by the plaintiff did not contact/approach the defendants and the Muslim Commercial Bank Ltd, Karachi since 1992 till this date for redemption of the suit property. No record of mortgage documents of the suit property has been produced/enclosed alongwith the memo of plaint and even no paragraph regarding cause of action for filing the suit is found in the memo of plaint. The plaintiff has filed present suit for specific performance. The Specific Performance is an equitable relief, the plaintiff has not come with clean hands before this Court as he had entered into sale agreement in 1992, filed the present suit in 2001 and nothing has been mentioned in the memo of plaint that the plaintiff approached the defendant or the Muslim Commercial Bank Ltd, Karachi to redeem the mortgage property. The sale agreement dated 27th June, 1992 enclosed as annexure 'C' with the memo of plaint cannot be specifically enforced under Section 21(C) of the Specific Relief Act as the terms of the said agreement this Court cannot find reasonable certainty. The parties to the agreement in clause-6 to the sale agreement themselves admitted that the suit property is not free from encumbrance and is mortgaged with Muslim Commercial Bank Ltd, Karachi. The mortgage has not

-:  4  :-

 

yet been redeemed since 1992 for about 18 years. Since the suit property is admittedly mortgaged before entering into the sale agreement between the parties then the agreement to sell goes out of the field and the same will be treated as clog on the right of redemption of the mortgagor. The plaintiff has failed to disclose any cause of action for filing the present suit for specific performance of the contract when admittedly before filing the present suit, the suit property was mortgaged with Muslim Commercial Bank Ltd, Karachi and had not been redeemed at the time of filing of the suit in 2001 as stated in para 6 of the plaint. The sale agreement annexure 'C' to the memo of plaint cannot be specifically enforced as the terms of that agreement cannot find with reasonable certainty in accordance with Section 21(C) of the Specific Relief Act.

            The case law cited by the learned counsel for the plaintiff are distinguishable and have no relevance with the legal issues regarding maintainability of the present suit.

            The present suit is therefore, not maintainable, barred under the law, discloses no cause of action, and I therefore, reject the plaint in the present suit Under Order VII Rule 11 of the Civil Procedure Code.

 

JUDGE