Format of Suit for Declaration Against Auction in Banking Court

suit for declaration

Format of Suit For Declaration

This sample draft of declaration suit can be used in banking court to restrains and cancel the order of auction notice issued by bank.

IN THE COURT OF JUDGE BANKING COURT, RAWALPINDI.

Mrs. KB w/o MIA resident of ________________ District Rawalpindi presently residing in House No. ____, Sector ____, Islamabad.

…Plaintiff.

Versus

  1. House Building Finance Corporation Zonal Office Islamabad through General Manager House Finance Corporation 3rd Floor, 26-D Kashmir Plaza Blue Area, Islamabad.
  2. S Khan son of A Khan resident of House No. __, Sector ___3, Islamabad.
  3. Miss SN D/o HN resident of House No. ___, Street No. _, Sector ___, Islamabad.,
  4. Raja MI son of Raja KH R/o _______ District Islamabad.
  5. C.D.A through Chairman C.D.A Islamabad.

…Defendants

SUIT FOR DECLARATION, PERMANENT & MANDATORY INJUNCTION.

Respectfully Sheweth,

  1. That the plaintiff is owner in possession of house No.___ Sector ____, Islamabad. The plaintiff purchased the said house for consideration of Rupees 11 Lac from defendant No. 4 through transfer letter No. CDA_____ dated ____ free from all encumbrances. Before purchasing the said house, the plaintiff adopted all precautionary measures regarding valid title of defendant No. 4, and after going through the record of defendant No. 5 pertaining to the above-mentioned house and satisfying herself about valid title of the transferor to sell the house.
  2. That the defendant No. 4 purchased the said house from defendant No. 3 through transfer letter No. CDA __ dated ____, whereas the defendant No. 3 purchased the said house from defendant No. 2 through transfer letter No. CDA ____ dated ____. Before purchasing the said house, the plaintiff obtained copies of all the transfer letters from defendant No. 4, which are annexed with the plaint. In none of transfer letters there was any embargo for transfer of house nor there was any entry showing the house subject to any encumbrance. The plaintiff is a bonafide transferee for value and purchase the house free from any charge or encumbrance.
  3. That the defendant No. 1 got published a notice fore auction of House No. ___, Sector____ Islamabad in the Daily Jang on dated ____ scheduled to be auctioned on ____, which is in the ownership and possession of the plaintiff. The plaintiff or her representative never obtained any loan from defendant No. 1, as such the plaintiff does not fall within definition of borrower as define in the Financial Institution (Recovery of Finance) Ordinance 2001. The house of the plaintiff can not be sold in auction unless it is established by convincing evidence that the plaintiff falls within definition of borrower of defendant No. 1.
  4. That on coming to know about publication of auction notice in the Newspaper , the plaintiff sent a legal notice through counsel on ______ to the defendant No. 1 and brought all facts in knowledge of defendant No. 1 about bonafide purchase of house by the plaintiff and asked for withdrawal of auction notice dated ______.
  5. That instead of withdrawing a notice dated _____, the defendant No. 1 sent a reply and stated that defendant No. 2 obtained loan of Rupees 1,0,8000/- in the year 1991 and executed deed of assignment in favor of the defendant No. 1 on ______. The defendant No. 1 demanded outstanding amount of defendant No. 2 from the plaintiff to save the house from auction.
  6. That if the defendant No. 2 obtained loan from the defendant No. 1 and executed assignment deed in favor of defendant No. 1, then it was the obligation of defendant No. 1 and its officials to intimate defendant No. 5 about embargo and transfer of the disputed house or at least the transfer of the house subject to encumbrance with the defendant No. 1. But there is not a single document available on CDA record indicating any embargo on transfer of the disputed house or showing the house subject to any encumbrance. The plaintiff cannot be made responsible to pay the debt obtain by the defendant No. 2. The defendant No. 1 and its officials cannot get benefits of intentional or unintentional omissions or misdeeds. If the defendant No. 5 was informed about execution of assignment deed by the defendant No. 2 in favor of defendant No. 1 then the house would not have been transfer to any person or if transferred it would have been transferred subject to encumbrance. The safe course for defendant No. 1 is to recover the outstanding dues from defendant No. 2 or from his guarantor and to seek personal remedy against them.
  7. That the demand of defendant No. 1 for payment of outstanding amount of defendant No. 2 from the plaintiff is not only illegal, malafide, immoral, based on malafide intention but also against the principle of Sharia and is ineffective on rights of the plaintiff.
  8. That it is in the knowledge of the defendant No. 1 that the person who obtained loan, sold out the disputed house many years ago and is not in possession of the house. The disputed house is in possession of the plaintiff, who is third bonafide transferee of the house for value. The defendant No. 1 should have approached this Honorable Court for redress of the grievance. The course adopted by the defendant No. 1 for recovery is unwarranted and amounts to extortion.
  9. That the defendant No. 1 has been asked to desist from auctioning the plaintiff’s house and to withdraw the auction notice but it failed, hence this suit for declaration.
  10. That the cause of action accrued to the plaintiff on ______, on publication of auction notice and is continuing.
  11. That the disputed house is situated within the jurisdiction of this Honorable Court, as such this Honorable Court has jurisdiction to adjudicate the matter.
  12. That the value of suit for declaration for the purposes of court fee and jurisdiction is fixed Rupees 1000/-, which is exempt of affixation of court fees.

PRAYER

It is therefore, respectfully prayed a decree in suit for declaration against auction to the effect declaring notice of auction of House No.____, Sector_____, Islamabad published in the Daily Jang Rawalpindi on ____ may kindly be declared illegal, void, immoral against the principle of natural justice, based on malafide intention against principle of Sharia and is ineffective on rights of the plaintiff.

  1. A decree for mandatory injunction directing the defendant No. 1 to withdraw notice of auction of the plaintiff’s House and to recover the auctioning amount if any from the defendant No. 2 or from his guarantor.
  2. A decree for permanent injunction restraining the defendant No. 1 from demanding any outstanding amount of defendant No. 2 from the plaintiff, to auction by sale the plaintiff house as detailed in body of the plaint forever, may kindly be passed in favor of the plaintiff against the defendants with cost.

Compensatory and Special Cost may also be awarded.

…Plaintiff

Through

Counsel(s)

Advocate High Court, Rawalpindi.

Verification

Verified on oath at Rawalpindi that the contents of the plaint from para No. 1 to 9 are true and correct to the best of my knowledge and belief and rest of the paras are believed to be correct on information received.

Plaintiff

IN THE COURT OF JUDGE BANKING COURT, RAWALPINDI.

Mrs. KB

Versus

House Building Finance Corporation Zonal Office Islamabad through General Manager House Finance Corporation  etc

SUIT FOR DECLARATION, PERMANENT & MANDATORY INJUNCTION.

APPLICATION FOR TEMPORARY INJUNCTION UNDER ORDER 39 RULE 1 & 2 READ WITH SECTION 151 CPC.

Respectfully Sheweth:-

  1. That the plaintiff has filed the above captioned suit for declaration in this Honorable banking Court, contents of which may be read as integral part of the application.
  2. That the plaintiff has good prima-facie arguable case and important law points are involve in the case, which is likely to be decided in her favor.
  3. That the balance of convenience lies in the favor of the plaintiff.
  4. That if the temporary injunction is not granted to the plaintiff immediately, the plaintiff shall suffer an irreparable loss.

Prayer

In view of above, it is humbly prayed that respondent No. 1 may kindly be restrained from auctioning by sale the house No. 446, Sector I-10/1, Islamabad or to adopt and coercive measures for recovery of amount of respondent No. 2 from the application till final decision of the case.

…Applicant

Through:

Counsel(s)

Advocate High Court, Rawalpindi.

IN THE COURT OF JUDGE BANKING COURT, RAWALPINDI.

Mrs. KB

Versus

House Building Finance Corporation Zonal Office Islamabad through General Manager House Finance Corporation  etc

SUIT FOR DECLARATION, PERMANENT & MANDATORY INJUNCTION.

APPLICATION FOR TEMPORARY INJUNCTION UNDER ORDER 39 RULE 1 & 2 READ WITH SECTION 151 CPC.

Affidavit.

That I Mrs. KB w/o MIA resident of ______ District Rawalpindi presently residing in ____ Islamabad, do hereby solemnly declare and affirm as under:-

That the contents of the accompanied suit are true and correct to the best of my knowledge and belief and nothing has been concealed therein.

Deponent.

Verification:-

Verified on Oath at Rawalpindi On this ___ Day of  July, __. That the above deposition is true and correct to the best of my Knowledge and belief.

Deponent.

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