KARACHI, Oct 19: The Sindh High Court has overruled the objections of Mehran Motors and others, and held that the decree holder and Daewoo Motor Corporation are entitled to the release of the sale proceeds of 800 cars lying with the official assignee.
This was held by Justice Sabihuddin Ahmed while disposing of two applications (CMA 2510 of 2001 and CMA 2611 of 2001).
While disposing of the application (CMA 2510/2001) by the decree holder under section 151 of CPC, Justice Ahmed directed the official assignee to release the amount of sale proceeds of 800 cars through official channel to the plaintiff/decree holder and Daewoo Corporation Ltd, after deducting counsel’s fee granted by this court in the sum of 40,000 Us dollars.
It is the case of the plaintiff that in pursuance of the order dated April 8, 2001 of this court, the official assignee, after getting clearance from the Government of Pakistan to sell in the open market, disposed of 800 cars on behalf of the plaintiff/decree holder and Daewoo Corporation.
The sale proceeds thereof have been deposited with the official assignee by way of convenience belonging to the plaintiff/decree holder and Daewoo Corporation jointly in terms of consent decree. The sale proceeds have to be remitted out of Pakistan to the plaintiff and Daewoo Corporation, and the sale proceeds after conversion into US dollars is with the official assignee in the dollar account as per previous practice.
The consent decree had not imposed any condition whatsoever for withdrawal of sale proceeds of 800 cars in 2,348,000 Us dollars and Rs58,200, and the remittance thereof would be through regular channel in accordance with the remittance sent earlier.
The facts connected with the application were that the plaintiff/decree holder and the judgment debtor were litigating under various suits before this court against each other, which were disposed of by an order dated 3. 3. 1998 in pursuance of a compromise reflected in CMA 422/98 in Suit No 513/94.
The application was resisted by the judgment debtors, through counter- affidavit filed on behalf of the judgment debtors No 1 and 2 and objections (CMA 2611/2001) on behalf of JDs 3 and 4 who had also filed applications, under section 12 (2) of CPC, in the aforesaid suit. The grounds taken in the application, under Section 12 (2) of CPC, are that the decree dated March 3, 1998 was obtained through coercion.
In the counter-affidavit of Younus, attorney of the JD No 2, namely, Sikandar Karim, it was maintained that the application filed by the decree holder was mala fide, by concealing facts of filing of the JMs referred to above, which were ripe for recording evidence. It was contended that by the order dated July 30, 1999, this court had directed for fixation of the JMs with the execution application, and that the sale proceeds would not be disbursed without obtaining orders of the court. A compromise was reached between the decree holder and the judgment debtors in HCA 319/2000 whereby the parties agreed that the amount of sale proceeds of the car involved in that cases should not be taken away by the decree holder before final disposal of the aforesaid applications.
The counsel for the decree holders’ submission was that the decree had been implemented, and both the parties had derived benefits and as such the JDs could not challenge the legality and propriety of the decree which had been fully implemented. In fact, 800 cars belonged to the decree holder, which were sold through the assistance of the O/A and the sale proceeds were lying with him. He further contended that pendency of the applications for setting aside the decree, in the absence of any stay, the amount, which belonged to the decree holder, could not be withheld, when the JDs had already availed of the benefit under the decree.
In this regard the counsel referred to the view taken by Justice Ahmed in J.M. Nos 29/2000 and 30 of 2000 (Dadabhoy Cement Factory Vs NDFC) that the parties availing benefit under the decree could not assail the same under the provisions of Section 12 (2) of CPC.
He further contended that the view was not only approved by a division bench of this court by the order dated September 19, 2001 in HCA No 159/2001, but also by the Supreme Court by dismissing the petition for special leave.
After examining all aspects of the case, Justice Ahmed overruled objections, and held that the decree holder were entitled for the release of the sale proceeds of 800 cars lying with the O/A.
“Therefore, the official assignee is directed to release the sale proceeds to the plaintiff/decree holder less the amount paid by the order dated 7/ 9/ 2001 in CMA 2511/2001. The remaining sale proceeds be repatriated to the plaintiff/decree holder on their address of Hong Kong through Muslim Commercial Bank through the official channel viz State Bank of Pakistan after compliance with the provisions of Foreign Exchange Regulations, 1947 and Rules made therein,” he held.
Abdul Hafeez Pirzada represented the decree holder, and Maqbool Baqar and H. A. Rahmani the judgment debtors.