Monday, 30 April 2012

Contract of Guarantee is Enforceable under the law

Citation Name : 2006 CLD 178 LAHORE-HIGH-COURT-LAHORE
Side Appellant : AMIR JAVED
Side Opponent : AL-BARAKA ISLAMIC INVESTMENT BANK
—Ss.7, 17 & 3—Contract Act (IX of 1872), Ss.132 & 135—Suit for recovery of loan—Contract of guarantee—Responsibility of guarantor—Scope–-Contract of guarantee, in the present case, showed that defendants had signed and guaranteed the loan agreement not being the guarantors only but as a principal debtor—Liability to pay said defendants shall not stand discharged merely by resorting to S.133, Contract Act, 1872—Liability of defendants, besides being guarantor, was also in their capacity as principal debtor—Subsequent agreements would not absolve the defendants of their liability because defendants had bound themselves by virtue of the contract of guarantee that their liability shall remain unaffacted even in the event of modification, variation of the terms of facility, compositions or other arrangements’ with the customer of the Bank—Contract of guarantee was itself an independent agreement, the terms whereof had bound the parties in isolation with main agreement—Provisions of Ss.133 & 135 Contract Act, 1872, visualized consent -or assent of the guarantors at the time of variance only and the same could not be waived by the guarantors in advance.

Cost of funds is according to State Bank Fixed Cost

Citation Name : 2007 CLD 1639 KARACHI-HIGH-COURT-SINDH
Side Appellant : KASB BANK LIMITED
Side Opponent : ABDIJL QADIR JANGDA
—Ss.3(3) & 9—Recovery of Bank loan—Cost of funds—Proof—Interim decree was passed against defendant on the basis of his admission made in application for leave to defend—Bank sought final decree and claimed inclusion of cost of funds in the decree passed against defendant—Plea raised by defendant was that without. determination of date of default, cost of funds could not be included in the decree—Validity—When date of default was not disputed formal determination was not necessary and admitted date of default could be taken as date of default—Interim decree though was passed but it was not complied with thus the same could be taken as admitted date of default—State Bank of Pakistan had fixed cost of funds at 6.44%—High Court decreed the suit against defendant including the cost of funds at the rate of 6.44% from the date of interim decree—Suit was decreed accordingly.

Bank has entitlement to costs in a suit for recovery of money

Citation Name : 2009 CLD 312 KARACHI-HIGH-COURT-SINDH
Side Appellant : HABIB BANK LIMITED
Side Opponent : TAUQEER AHMED SIDDIQUI
Ss.3, 9 & 17—Civil Procedure Code (V of 1908), Ss.151, 152 & 153—Decree for recovery of loan amount—Cost of funds, non-awarding of-–Application by Bank for amendment of decree to include therein such cost sought in suit—Dismissal of such application by Banking Court-–Validity--Awarding of cost in terms of S.17 read with S.3 of Financial Institutions (Recovery of Finances) Ordinance, 2001 was mandatory—Banking Court in its judgment had not observed that Bank was not entitled to such cost from date of default till realization of decretal amount—Bank was entitled to such cost—High Court accepted appeal in Circumstances.

Zarai tariqiati bank limited went into appeal

Citation Name : 2009 CLD 36 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZARAI TARIQIATI BANK LIMITED through Branch Manager
Side Opponent : HASSAN AFTAB FATIANA
Ss. 3 & 27, proviso—Civil Procedure Code (V of 1908), S.47–-Non-specification in the judgment and decree, the date of default by the Banking Court–-Remedy-–Executing Court shall be well within its jurisdiction to adjudicate as to from which date the costs of funds should be allowed to the decree holder—Principles.

Bank can not claim mark-up in decree

Citation Name : 2010 CLD 1792 KARACHI-HIGH-COURT-SINDH
Side Appellant : BANK OF KHYBER
Side Opponent : NAZAMUDDIN
Ss. 3, 9 & 10—Suit for recovery of loan–court by consent of the parties appointed a Chartered Accountant to examine the account and submit report regarding outstanding amounts-Chartered Accountants submitted the report that principal amount and amount of mark-up were outstanding against the borrower—Borrower had not denied financial facility given to him by the bank, but all that had been said in his application for leave to defend was that request for such facility was not made by the borrower in his personal capacity, but was extended to his business concern–Borrower, in circumstances, had admitted to have availed the financial facility—In view of absence of denial of the borrower to the extent of availing said facility, oral objection with regard to non-availing of such facility at the time of arguments, was of no legal consequence—Objection of borrower, that whenever a financial facility was rolled-over, mark-up over mark-up had been charged, was a substantial objection—Charging of mark-up after roll-over, would amount to converting a mark-up based facility into interest bearing facility, which was not permissible under Law–Counsel for the Bank conceded that against all facilities provided to the borrower, Bank would not press its claim for mark-up; and sought decree only on the principal amount that had been determined by Chartered Accountant in his report—Suit was decreed accordingly.

Qatl-e-Amd punishment in case of partial compromise

Citation Name : 2011 SCMR 128 SUPREME-COURT
Side Appellant : MUHAMMAD SARFRAZ
Side Opponent : State
 -S. 302(b)—Constitution of Pakistan (1973), Art. 185(3)—Qatl-e-amd–-Leave to Appeal was granted to accused by Supreme Court only to consider whether death sentence awarded to him was justified in view of the compromise made by two out of the three legal heirs of the deceased and further to consider whether accused was below the age of 18 years on the date of occurrence, as he had claimed to be 19 years old in his statement recorded under S. 342, Cr.P.C. by Trial Court

An employee can be forcefully terminated

Citation Name : 2009 SCMR 708 SUPREME-COURT
Side Appellant : Brig. (R.) SAKHI MARJAN, CEO, PESCO, PESHAWAR
Side Opponent : MANAGING DIRECTOR PEPCO, LAHORE
Art. 185(3)—Contractual employment—Non-holding of inquiry—Termination of service—Remedy-–Petitioner was employed in corporation on contract and he was terminated on the allegation of insubordination—Plea raised by petitioner was that no regular inquiry was held depriving him of opportunity of being heard—Validity–-Was not necessary that inquiry must be held in each and every case as it depended upon circumstances of each case—Services of an employee could be terminated without holding regular inquiry for the reason that competent authority could dispense withholding of such inquiry especially when allegation levelled against employee was proved on the basis of documentary evidence—Employee of corporation , in absence of violation of law or any Statutory rule, could not press into service the Constitutional or civil jurisdiction for seeking relief of reinstatement in service—Such employee could only claim damages against his wrongful dismissal or termination—High Court had rightly declined to interfere in exercise of Constitutional jurisdiction for enforcement of contractual obligation—Leave to appeal was refused.

Leave to Appeal granted by Supreme Court against PIA

Citation Name : 2010 PLD 676 SUPREME-COURT
Side Appellant : PAKISTAN INTERNATIONAL AIRLINE CORPORATION
Side Opponent : TANWEER-UR-REHMAN
Arts. 199 & 185(3)–-Leave to appeal was granted by Supreme Court to consider; whether period of 90 days prescribed in clause (c) of para 109 of judgment passed by Supreme Court in case titled Muhammad Mubeen-us-Salam and another vs. Federation of Pakistan and others, reported as PLD 2006 SC 602, was applicable to constitutional petitions filed under Art. 199 of the Constitution for which no period of limitation was prescribed under any law subject to question of laches; whether such period of 90 days would be applicable to those cases where a period of time was prescribed by law and that had not expired; and whether constitutional petition against Pakistan International Airlines being a corporation having no Statutory rules would be maintainable in cases of disputes as regards the terms and conditions of its employees, more particularly as Pakistan International Airlines was not performing any functions, in connection with the affairs of the Federation.

Whether PTCL is Statutory or not - Landmark Judgement

Citation Name : 2011 PLD 132 SUPREME-COURT
Side Appellant : PAKISTAN TELECOMMUNICATION CO. LTD. through Chairman
Side Opponent : IQBAL NASIR
S. 6—Constitution of Pakistan, Arts. 185(3) & 199(5)— Leave to appeal was granted by Supreme Court to consider whether writ in the matter could not be issued to Pakistan Telecommunication corporation , Limited, as it was not performing functions in connection with affairs of Government and even if it was assumed to be performing such functions, still subject matter of judgment passed by High Court was not connected with affairs of Government; and whether rules framed by Pakistan Telecommunication corporation Limited were Statutory or not.

Dismissed Employee Can Only Claim Damages

Citation Name : 2011 PLC 1007 SUPREME-COURT
Side Appellant : Brig. (R.) SAKHI MARJAN, CEO, PESCO, PESHAWAR
Side Opponent : MANAGING DIRECTOR PEPCO, LAHORE

Art. 185(3)—Contractual employment—Non-holding of inquiry—Termination of service—Remedy—Petitioner was employed in corporation on contract and he was terminated on the allegation of insubordination—Plea raised by petitioner was that no regular inquiry was held depriving him of opportunity of being heard–-Val idity—It was not necessary that inquiry must be held in each and every case as it depended upon circumstances of each case—Services of an employee could be terminated without holding regular inquiry for the reason that competent authority could dispense withholding of such inquiry especially when all negation  leveled against employee was proved on the basis of documentary evidence—Employee of corporation, in absence of violation of law or any statutory rule, coul d not press into service the constitutional or civil jurisdiction for seeking relief of reinstatement in service—Such employee could onl y claim damages against his wrongful dismissal or termination—High Court had rightly decl ined to interfere in exercise of Constitutional jurisdiction for enforcement of contractual obligation—leave to appeal was refused.

Tuesday, 24 April 2012

Jurisdiction of a Ombudsman in Pakistan

Citation Name : 2000 SCMR 1615 SUPREME-COURT
Side Appellant : MUHAMMAD JAVED
Side Opponent : OFFICER INCHARGE; MARKET COMMITTEE, GOVERNMENT OF SINDH, KARACHI

Ss. 7 & 14—Constitution of Pakistan (1973), Arts. 185(3) & 199–Establishment of the of fice of Ombudsman for the Province of Sindh Act (I of 1992), S. 9-Reference to Ombudsman by Supreme Court —Allegation of maladministration of Market Committee constituted under S.7, Agricultural Produce Markets Act, 1939–-Market Committee although a creature of the Provincial Government but occupied the status of the body corporate under S.14 of the same Act—Petition for leave to appeal to Supreme Court –Maintainability—Held, neither Supreme Court nor the High Court , in the ordinary course of things, could supervise or control , an essentially administrative matter—Corrective machinery in that behalf lay elsewhere and one of those levels, and a substantially High one, was that of Ombudsman–Supreme Court after hearing the matter at some length and upon issuance of necessary notices concluded that in addition to the general and Suo motu jurisdiction of the Ombudsman, which would continue to vest with him in respect of whatever Supreme Court would observe, certain related questions were framed by the Supreme Court and were referred to the Ombudsman accordingly– Read more…

Tax on the transfer of property in Pakistan

Citation Name : 2009 SCMR 1070 SUPREME-COURT
Side Appellant : TEHSIL MUNICIPAL ADMINISTRATION
Side Opponent : NOMAN AZAM
R. 3—Punjab Local Governments (Taxation ) Rules, 2001, R.9(2)–Constitution of Pakistan (1973), Art.185(3)—Tax on transfer of immovable property-–Taxes and fees would take effect from the date of publication of notifications in the official gazette—Tax law s could not be applied retrospectively—Although powers had been given to the Local Councils to give a date for enforcement of the tax proposals, yet those could not be exercised so as to give retrospective effect to tax proposals/law s—Where the Local Council tried to give retrospective effect to the notification, R.9(2) of the Punjab Local Governments (Taxation ) Rules, 2000 was not applicable, as the action of the Local Council was violative of the established law –-Principles-–Petition for leave to appeal was dismissed

No descrimination for terminating employees service allowed under the law

Citation Name : 1996 PSC 181 SUPREME-COURT
SideAppellant: CHAIRMAN,PAKISTANINTERNATIONALAIRLINESCORPORATION,KARACHI
Side Opponent : SHERINDOKHTH
–Regln. 25—Constitution of Pakistan (1973), Arts. 25 & 185(3)-–Employees of P:IA. corporation —Retirement at the age of 45 years on sole ground of employee being a female—Validity of retirement challenged before High Court—High Court found that change pertaining to terms and conditions of service of employee to her disadvantage, could not be made in arbitrary manner and that employee’s retirement was a dear case of discrimination on basis of sex and sex alone and was, thus, violative of Arts. 25 & 27 of the Constitution—Validity–Leave to appeal was granted to consider whether employees of corporation were governed by Statutory Rules of Service and if so, whether Regln. 25, Pakistan International Airlines corporation Employees (Service and Discipline) Regulations, 1985, was discriminatory and militated against any of the fundamental rights guaranteed by the Constitution.

High Court can suo moto cancel bail of accused

Citation Name : 2000 SCMR 735 SUPREME-COURT
Side Appellant : WAQAR HUSSAIN
Side Opponent : STATE
S.5(2)—Penal Code (XLV of 1860), S .161/223/219/109/120-B–Criminal Procedure Code (V of 1898), S. 439—Constitution of Pakistan (1973), Art. 185(3)—Suo motu notice issued to accused by High Court for cancellation of bail-–Law had conferred Suo motu powers of revision on High Court to ensure that the Court s subordinate to it had acted strictly within the legal bounds without transgressing their jurisdiction and the findings, sentence or orders recorded or passed by them were just and legal, but nevertheless in order to avoid any impression of arbitrariness in the exercise of such power, the order of initiating Suo motu proceedings by the High Court should have mentioned the ostensible error or irregularity in the orders or proceedings of the subordinate Court s in order to enable the parties to know the reasons for such an action-

Impleading necessary party in a suit..

Citation Name : 2002 PLD 615 SUPREME-COURT
Side Appellant : GHULAM AHMAD CHAUDHRY
Side Opponent : AKBAR HUSSAIN
—-O. I, R.10 & O.XLI & Rr.23, 27—Constitution of Pakistan (1973), Art. 185(3)—Impleading of necessary party–-Additional evidence, recording of —Remand of case to Trial Court for decision afresh—jurisdiction of High Court in exercise of appellate jurisdiction —Plaintiff asserted to be the owner of the suit property and in his absence the property was transferred in the name of the vendor claiming to be the son of the plaintiff-defendant purchased the property from the vendor and the same was transferred in the name of the defendant—Plaintiff denied the vendor as his son and filed suit for cancellation of document and recovery’of possession—Vendor was neither impleaded in the suit nor his statement was recorded as witness–Trial Court dismissed the suit but High Court in exercise of appellate jurisdiction allowed the appeal, impleaded the vendor as a party and remanded the case to the Trial Court and Suo motu directed the Trial .Court to record additional evidence—Contention of the defendant was that the High Court should have decided the appeal on the basis of evidence available on record—Validity-–Judicial discretion exercised by the High Court as Appellate Court , in the present case, was neither unwarranted nor unjustified when valuable proprietary rights of the plaintiff (who was out of country for a long period) were extinguished without his consent and permission, it was a fit case for exercise of Suo motu jurisdiction by the High Court —High Court by remanding the suit did not act arbitrarily or without jurisdiction — Supreme Court repelled the contention of the defendant and declined to set aside judgment and remand of case for decision afresh—Appeal was disposed of accordingly

Implementation of Order of Chief Minister

Citation Name : 2002 PLD 728 SUPREME-COURT
Side Appellant : IMDAD MAGSI
Side Opponent : KARACHI WATER AND SEWERAGE BOARD
—-Rr.4(a) & 6(b)(c) —Karachi Water and Sewerage Board Employees (General Conditions of Services) Rules, 1987, R.78(1)(2)(3)—Karachi Water and Sewerage Board Resolution No.1 of 1991, dated 15-6-1991—Sindh Service Tribunals Act (XV of 1973), S.2-A—Constitution of Pakistan (1973), Arts. 199, 212 & 185(3)–-Retrenchment of the employees of Karachi Water and Sewerage Board before the completion of probation period—Chief Minister of the Province ordered reinstatement of such employees–Validity—Constitutional petition before High Court for implementation of the orders of the Chief Minister—Maintainability—Applicability of S.2-A, Sindh Service Tribunals Act, 1973–-Scope-–Leave to appeal was granted by the Supreme Court to consider the points to the effect as to whether writ of mandamus or writ of certiorari could be issued by the High Court to get the order of Chief Minister implemented who himself was Chief Executive of the Province but his orders were not complied with by the Karachi Water and Sewerage Board; whether employees of Karachi Water and Sewerage Board whose services were terminated could be reinstated by the Chief Minister on his own by taking Suo motu action and by ignoring the prescribed procedure as enumerated in S.143, Sindh Local Government Ordinance, 1979; whether the downsizing/retrenchment policy had been implemented with the prior approval of Government of Sindh which resulted in. an en bloc termination of the employees of the Board; and whether the controversy related to the terms and conditions of service and fell within the jurisdiction al domain of Sindh Service Tribunal in view of S.2-A of the Sindh Service Tribunals Act, 1973.

Suit in a provintially administered tribal area

Citation Name : 2004 SCMR 1798 SUPREME-COURT
Side Appellant : Qazi SHAMSUR REHMAN
Side Opponent : Mst. CHAMAN DASTA
——-Ss. 5 & 7—Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Rules, R.3(8)—Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation (II of 1975), S.3(2-C)–Constitution of Pakistan (1973), Art.185(3)-–Trial of suit under Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation, 1975 even after promulgation of Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994—Judgment of Trial Court dismissing suit was upheld by Appellate Court —High Court in revision remanded case to Trial Court for its disposal under Regulation 11 of 1994—Validity–-Trial Court had jurisdiction to adjudicate upon. subject-matter of the suit—Objection qua procedure had not been raised by any party before Trial Court , Appellate Court or High Court —High Court should not have Suo motu taken up such objection—

Suit for declaration application for removing parties dismissed

Citation Name : 2010 SCMR 1210 SUPREME-COURT
Side Appellant : BASHARAT ALI
Side Opponent : MUHAMMAD ANWAR
S. 42—Civil Procedure Code (V of 1908), S.115, 151, O.I, R, 10 & O.XLI, Rr.4, 20, 33—Constitution of Pakistan (1973), Art. 185(2)(d)(e)—Suit for declaration -–Prayer in plaint for declaring suit mutation made in favour of defendant by deceased predecessor of plaintiffs to be void, without consideration and ineffective on plaintiffs’ right of inheritance—Dismissal of suit by Trial Court —Filing of appeal by seven plaintiffs out of eight plaintiffs—Suit decreed by Appellate Court in terms of such prayer—Filing of revision petition by defendant against seven plaintiffs— Application by plaintiffs before High Court under O.I, R.19, O. XLI, R. 20 read with S.151, C.P.C. for impleading such eighth plaintiff as party in revision—Plea of defendant that such eighth plaintiff was not necessary party in revision as judgment of Trial Court had become final against him—High Court dismissed such application for being time-barred as well as revision petition without discussing merits of the case—Validity–- Read more…

Judgement Related with Statutory Corporation


Citation Name : 1998 SCMR 693 SUPREME-COURT
Side Appellant : CIVIL AVIATION AUTHORITY
Side Opponent : MUHAMMAD MUSHARAF KHAN
Constitution of Pakistan 1973 —-Arts. 185(3) & 199—Statutory corporation —Transfer of employee of Statutory corporation from one place to another—High Court in its Constitutional jurisdiction under Art.199 of the Constitution issuing order of status quo till decision of Constitutional petition—Validity—Authority claimed that maintenance of status quo ante in favour of employee relating to his service matters was contrary to principles laid down by Supreme Court—Leave to appeal was granted to consider whether High Court could invoke Constitutional jurisdiction in employee’s favour in relation to his service matters—Order of High Court, meanwhile, would remain suspended pending decision of appeal–Authority was directed not to proceed further with inquiry against employee.

Tuesday, 3 April 2012

Documents required for student visa of UAE

Student Visas

To enrol in primary, secondary or high schools a residence visa is required and educational institution may be permitted to make their UAE visa application based on the sponsorship of their parents. This option is available to full-time students.

Students under parent's sponsorship wanting to enrol into tertiary level university, college or institute have the following regulations:

    Sons, below the age of 18 in full-time education can be sponsored by their parents.
    Unmarried daughters of any age can be sponsored by their father (or their mother if she is employed in a high-level profession).

Students attending a tertiary level university, college or institute: Educator-sponsored Dubai study visa

Full-time students can be sponsored by their educational institution if the institution is eligible. This allows them to obtain a UAE study visa for the duration of their course
    Full-time students can be sponsored by the university, college or institute please check with the university, college or institute because not all offer this service.

    Student Residence Visas are normally only valid for 1 year at a time, renewed each year during the study program.
    Documents needed:
  •         Passport with at least 6 months validity, the passport must have two blank visa pages (one to endorse the visa and one for entry stamps)
  •         Passport copies (about 4)
  •         Photographs (about 12)
  •         Passport copies (about 2 copies)
  •         Upon arrival, passport copies with entry visa to the UAE (about 3 copies)
  •         Evidence of acceptance to a UAE tertiary institute (offer letter)
  •         Possibly bank statements showing evidence of funds in the UAE
  •         Possibly a tenancy agreement (or letter from university if staying in university accommodation)
  •         Copy of tuition fee receipt for the current study year of the program
  •         Copy of visa fees receipt for the current study year of the program
  •         Post-graduate students will need to have their undergraduate degree attested
    Students from some countries will undergo a security check to make sure they are not considered a threat to UAE security.
    A medical test at an authorised UAE medical center (allow AED 350-500) will normally be required. The medical check is a blood test and chest X-ray for HIV (AIDS), Hepatitis B, Hepatitis C, Tuberculosis (TB), Leprosy, and Syphilis. If results come back positive for any of those conditions, the person is deported, except for syphilis which is treated, but this may change, check with UAE immigration department or UAE Ministry of Health (and keep in mind it's possible to get conflicting reports from them).

Requirements for Student Visa of UAE

The UAE educational system comprises of a variety of academic institutions - Schools, Colleges and Universities. Furthermore, there are several Training Institutes that offer professional qualification and training programs in various fields. Each institution has its own objective, structure, and admission requirements.

There are a few governmental universities and colleges in UAE where admission is restricted to nationals only. However, there are several private institutions where enrolment is open to any student who meets the admission requirements.

A student may enrol in any program of his/her choice. Programs may vary from academic, technical, and professional degree programs in various disciplines, preparing students for careers in research and professional practice in every field.
Enrolling in primary, secondary or high schools a residence visa is required. However, student visas are provided by all colleges and universities and also a few training institutes. Prior to issuance of visa all formalities need to be completed as per the university chosen

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Salman Yousaf Khan
Chairperson
International Lawyer
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