Monetary Foreign Decree Must be Satisfied in the Same Currency in which It has been Passed: IHC
Justice Arbab Muhammad Tahir of the Islamabad High Court has recently issued a judgment clarifying that foreign monetary judgment should be satisfied in the foreign currency in whish it is issued rather than Rupees. The judgment debtors are required to pay off the decree in foreign currency in which the decrees were originally awarded. It is not enough to pay only Rupees equivalent of the decreetal amount calculated at the time when the decree was passed. This issue came before the single bench of Justice Arbab Muhammad Tahir in a case reported as Namoos Zaheer Vs. Azfar Hasnai. Namoos Zaheer is a Pakistani citizen who is employed with the World Bank. He has the distinction of being the only citizen who has three judgments to his name all of which pertain to non performance of herย obligation to pay off a foreign decree. The facts are that back in 2015, the county court in the central London awarded a decree in favor of Azfar Hasnain and Mst. Nasreen Hasnain, an aging couple, who owned a flat in London. They rented it out to Namoos Zaheer who resided in that flat for almost three years. However, at the time she vacated the flat she failed to clear all her dues to her landlords. As a result of which the landlords were compelled to make recourse to the court in London which deals with such landlord-tenant disputes. Initially Namoos Zaheer also appeared before the court and submitted her defense. However, when the trial was scheduled she submitted an adjournment request which was not backed by sufficient evidence which was turned down. The county court in November 2014 conducted a two-day trial having considered the documentary evidence of both the parties it awarded a total sum of 31,415 pounds in favor of the aging couple. Because her case was found to be false and frivolous, the county court imposed a penalty of 25000 pounds by way of cost. It may be recalled that it is an essential element of English justice system that the losing party in a civil case is required to pay the litigation cost suffered by the winning party in full. This is how the British justice system avoids unnecessary litigation.
Namoos Zaheer opted not to file an appeal in the UK declared bankruptcy in the UK in order to avoid the decree. In the meantime in 2015 the aging couple sent a legal notice to her giving her a final chance to pay the amount. Instead of replying to this legal notice, Namoos Zaheer engaged lawyers to challenge the legal notice itself and engaged in pre-emptive litigation trying to restrain the aging couple from filing civil suit in Pakistan. Her anti-litigation suit was dismissed by the court in Islamabad to which she appealed against to the District Judge who also dismissed her appeal. She then filed revision in the Islamabad High Court where justice Mian Gul Hasan authored a detailed judgment dismissing Namoos Zaheer’s revision. This is the first judgment authored by Justice Mian Gul Hasan which represents the finest survey of the jurisprudence on the subject. The court noted that Namoos Zaheer was engaging in frivolous litigation, therefore dismissed her revision application. Namoos did not stop here. She even approached the Supreme Court but her lawyer withdrew her case at the very first date of hearing. In the meantime the aging couple filed a civil suit under section 13 of the Civil Procedure Code seeking a direction against Namoos for enforcing the foreign judgment.
The civil court finally allowed the suit filed by the aging couple decreeing 31,415 pounds in their favor. Namoos Zaheer then appealed to the Islamabad High Court. The division bench of the High Court headed by justice Mian Gul Hasan Aurangzaib again authored a detailed judgment which held that Namees Zaheer,s appeal was meritless and the High Court reiterated the civil court’s direction to Namoos Zaheer asking her to pay this amount. Adamant Namoos Zaheer still refused to pay and filed a civil petition for leave to appeal before the Supreme Court which has not been granted to this day. Since the decree of the Islamabad civil court is still valid, the aging couple filed execution petition. During the pendency of the execution petition for almost five years, Namoos Zaheer’s counsel argued that instead of directing his client to pay 31,415 pounds, she should only be required to pay 3 million rupees which is what 31,415 pounds were worth back in 2015 when the decree was issued against her.
Lawyer of the aging couple at the other hand argued that since it is Namoos who has delayed the payment of the due, she should not be given benefit of this interpretation. Instead, she should be directed to pay the 31,415 pounds at the exchange rate which is applicable on the day on which she finally pays it.
Considering the interpretation of both sides, the execution court finally held that since the decree was in foreign currency, Namoos will have to pay the amount in foreign currency or in Rupees equivalent at the time she pays off i.e if she pays off in December 2024, she will have to pay at the rate prevalent in December 2024, and not at the rate which was applicable back in 2015 when the London court passed decree.
Still unwilling to comply with the order, she filed first appeal against order in the Islamabad High Court which was also dismissed in limine by the High Court. After this order, Namoos Zaheer probably became the first person in the reported history of the Islamabad High Court who have come thrice before the court in civil litigation and who have lost each and every time she came before the court. Namoos Zaheer have reportedly filed CPLA against this order of the Islamabad High Court, which remains pending.
