KARACHI, Dec 16: The Sindh High Court has set aside the judgement and decree passed in a banking suit against Noor Bano, mother of Abdul Qadir Tawakal, for payment of Rs9,91,99,246.60 to ABL and for the sale of her property.
The order was passed in a banking suit against her and nine others by Justice Shabbir Ahmed of the Sindh High Court.
In August 1990 the ABL succeeded in obtaining a decree for the recovery of the amount against Tawakal Garments Industries, Abdul Qadir Tawakal and nine others, including Noor Bano, and for sale of her property.
It was claimed by the ABL that Noor Bano was director of Tawakal Garment Industries, the borrower company and that she had guaranteed repayment of the finance facilities granted by the ABL to the company. It was also claimed that she had also mortgaged her bungalow constructed on 1,500 sq yards plot as a security for the repayment of ABL dues up to the extent of Rs180 million.
Noor Bano in her application contended that the bank had obtained the judgment and decree by fraud and misrepresentation.
She claimed that neither she was a director of the company nor had she ever guaranteed any repayment on behalf of the company or mortgaged her property in favour of the ABL.
She further said that she had absolutely no knowledge of the affairs and transactions of the company and the suit field by the ABL and or any judgment or order or decree passed therein.
She said that she came to know about the suit only by means of a letter (June 9, 2001) from the official assignee who sought possession of her bungalow.
It was further submitted that the ABL being conscious of the frivolity and infirmity of their claim in the suit had deliberately and with mala fide intent to keep her away from the court suppressed her correct address and mentioned in the plaint a wrong address and thus prevented her from contesting the bank’s claim in the suit.
Maqbool Baqar, counsel for Noor Bano, further contended that the documents relied upon by the bank in support of their claim against his client were forged, manipulated and engineered. The lady had at no point in time executed any document in favour of ABL for repayment of the ABL’s dues and or creating any mortgage or charge on her property in favour of ABL.
The counsel also contended that at no point had the bank ever claimed that the contents of either of the documents relied upon by the bank against his client were ever explained to her or that any of the said documents was signed or executed in the presence of any officer of the bank.
He submitted that the lady is an 88 years old widow who is lying paralysed in her bed in a precarious state of health since last about eight years and it is inconceivable that she could have executed such documents knowingly and willingly.
He further claimed that even a cursory glance on the purported signatures of the lady on the various documents relied upon by the bank, including the purported letter of guarantee and the purported memorandum of deposit of title deeds, would reveal that such signatures are forged and do not in any way match her true signature.
He contended that the bank had in its counter-affidavit to the application for setting aside the decree had admitted that the address at which the lady was purportedly served through publication was in fact the address of the other defendants and was not her address.
Mr. Baqar submitted that the house in which the lady and the other defendants were purportedly served the court notice was in fact sold through a public auction in a court proceedings much before the filing of Allied Bank’s case and even the other defendants were not living or were in possession of the house at which they were said to have been served.
In support of his contention, the learned counsel filed a number of judgments of the Supreme Court as well as the Sindh High Court, including the 1994 SCMR 110,1993 SCMR 618 and PID 1985 Karachi 431.
After hearing the arguments of counsel Baqer and the bank’s counsel Asim Mansoor, Justice Sahibuddin Ahmad by his order dated May 14, was pleased to set aside the decree against Noor Bano, subject to her furnishing a bank guarantee in the decretal amount.
Aggrieved by the condition imposed by a learned Single Judge for furnishing bank guarantee, she filed an appeal before a Division Bench of the SHC. By order dated July 18, the Division Bench of the SHC, comprising Justice Sabihuddin Ahmad and Justice Ali Aslam jafri, allowed the appellant to approach the learned Single Judge for treating the mortgage property as security. When Mrs. Bano filed an application in pursuance of the order of the Division Bench, Justice Shabbir Ahmed, by order dated Nov 14, accepted her bungalow as security in the above matter and thus the decree obtained by ABL against Noor Bano for payment of the amount and for sale of her bungalow was set-aside.
