ORDER SH EET
IN THE HIGH COURT OF SINDH, KARACHI
I.A. No. 17 of 2011
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Order with signature of Judge
25.09.2012
Ms Rozina holding brief for Mr. Khaleeq Ahmed, advocate for the appellants
Mr. Ijaz Ahmed Shirazi, advocate for the respondent
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An application under Order 23 Rule 3 read with Section 151 CPC , which has been filed in court duly signed by both the parties as well as their respective counsel wherein it has been prayed that instant appeal may be disposed of in terms of compromise arrived at between the parties, which reads as under:
(1) The Appellants have accepted without any reservation their liability as Rs.30,391,232/- (Rupees Thirty Million, Three Hundred Ninety One Thousands Two Hundred Thirty Two Only) along with cost fund and cost of suit from the date of default till realizations of decretal amount which the Appellants shall pay in the manner provided in paragraph (2) below:
(2) The Appellants shall pay to the Respondent their outstanding liabilities in the following manner:-
(A) Down payment of Rs.10,000,000/- (Rupees Ten Million only). The Respondent has already received Rs.6,000,000/- (Rupees Six Million) from the Appellants and two installments of Rs.2,000,000/- (Rupees Two Million) each payable on December 20, 2012 and January 25, 2013 through Cheque bearing No.0039769267 dated December 20, 2012 and Cheque No.0039769268 dated January 25, 2013 respectively drawn on Faysal Bank Limited North Karachi Industrial Area Branch, Karachi towards partial adjustment of outstanding liability.
(B) An amount of Rs.4,000,000/- (Rupees Four Million) to be paid on or before March 25, 2013 through Cheque No.0039769261 dated March 25, 2013 drawn on Faysal Bank Limited North Karachi.
(C) An amount of Rs.4,000,000/- (Rupees Four Million) to be paid on or before June 25, 2013 through Cheque No.0039769262 dated June 25, 2013 drawn on Faysal Bank Limited North Karachi Industrial Area Branch, Karachi.
(D) An amount of Rs.4,000,000/- (Rupees Four Million) to be paid on or before September 25, 2013 through Cheque No.0039769263 dated September 25, 2013 drawn on Faysal Bank Limited North Karachi Industrial Area Branch, Karachi.
(E) An amount of Rs.4,000,000/- (Rupees Four Million) to be paid on or before December 25, 2013 through Cheque No.0039769264 dated December 25, 2013 drawn on Faysal Bank Limited North Karachi Industrial Area Branch, Karachi.
(F) An amount of Rs.4,000,000/- (Rupees Four Million) to be paid on or before March 25, 2014 through Cheque No.0039769265 dated March 25, 2014 drawn on Faysal Bank Limited North Karachi Industrial Area Branch, Karachi.
Copies of the Cheques are Annexed herewith and marked as Annexure “A-1 to “A-7”.
3. The Appellants shall pay cost of suit and cost of funds as specified by State Bank of Pakistan on the amount referred to in paragraph (1) above from the date of default till final payment. The cost of funds shall be paid along with the final payment as referred in paragraph (2) (F) above. However, if the Appellants pay a sum of Rs.30,000,000/- (Rupees Thirty Million only) in a timely manner on the dates specified in paragraph (2) (A) to (2) (F) above, the Respondent will accept the said amount of Rs.30,000,000/- (Rupees Thirty Million only) as full and final payment towards the decretal amount and the remaining decretal amount as well as amount of cost of funds and cost of the suit shall be waived by the Respondent.
4. In case of default or a delay in any payment and/or breach of any terms and conditions mentioned herein the Appellants shall become liable to pay forthwith to the Appellant entire liability as stated in paragraph (1) above. Consequently, payments made under this arrangement shall be adjusted against the Appellants’ liability and the Respondent shall be at liberty to take appropriate actions in accordance with law with or without intervention of the Court for recovery of entire outstanding liabilities from the Appellants and initiate proceedings for any remedies that may be available to the Respondent and in law.
(5) The securities created in favour of the Respondent shall remain in full force and effect till full and final settlement in accordance with the terms hereof.
(6) The Appellants shall be liable to pay all taxes, duties, levies, charges or penalties that may be levied or imposed by the federal or provincial governments (including any of their respective departments), local government or authority or any other authority including the State Bank of Pakistan upon the Appellants or in connection with the finance facilities granted to the Appellants or the outstanding liabilities of the Appellants. In case the Respondent is forced or required to pay any such amount, the Respondent shall be entitled to recover such amount from the Appellants with mark-up at the rate of 3 month KIBOR + 4% per annum from the date of such payment by the Appellants until the actual receipt of the same by the Respondent from the Appellants.
(7) The Appellants shall be liable to pay all costs of the Respondent that may be incurred in enforcing the security and recovering the outstanding amounts from the Appellants.
(8) Subject to the terms contained herein, all other terms and conditions contained in the relevant agreement(s), documents and/or arrangement(s) shall remain unchanged, effective and operative.
(9) That after passing of orders upon this Application the Respondent shall withdraw the Execution Application bearing No.33 of 2011 pending before the Hon’ble Banking Court No.4 at Karachi and Criminal Complaint No.41 of 2012 pending before the Hon’ble Banking Court No.IV at Karachi. The Respondent shall be entitled to file fresh execution application if the Appellants failed to fulfill their obligations in accordance with the terms stated hereinabove.
(10) That no party shall be entitled to claim damages in respect of any nature or any proceeding against each other.
There appears no impediment in accepting the compromise reached between the parties in the above terms.
Office is directed to allot the CMA number to the listed application, which is allowed. We, therefore, modify the judgment and decree impugned in this appeal and decree the suit filed by the respondent against the appellants in terms and conditions of compromise as recorded hereinabove.
Appeal stands disposed of in the above terms with no order as to cost.
Office is directed to prepare the decree in terms of the compromise as recorded hereinabove.
JUDGE
JUDGE