2013 PLP 841 (CLD)

FAROOQ ALI CHANNA, J.

This first appeal calls in question an order dated 16-6-2012 passed by the learned Presiding Officer Banking Court No.IV, Karachi in Execution No.1 of 2011 for satisfaction of decree passed in Suit No.526 of 2009 (United Bank Limited v. Mukhtiar Ahmed), whereby the trial Court has accepted and confirmed the bid within the meaning of Order XXI, Rule 92, C.P.C. in the sum of Rs.21,200,000 (Rupees twenty one million two hundred only) offered by the respondent No.2 through her representative for purchase of mortgaged property of appellant bearing Plot No.86, Block Nos.7 and 8, measuring 500 sq. yds., situated at Karachi Co-operative Housing Society Limited Karachi, in open auction held by the trial Court on 14-3-2012.

2. The relevant facts of the case are that the respondent No.1 filed a Suit No.526 of 2009 against the appellant for recovery of Rs.18,850,209.14 under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The appellant after service appeared and filed the application for leave to defend which was dismissed as not pressed. Consequently, the suit of the respondent No.1 was decreed against the appellant in the sum of Rs.11,472,443 with cost of funds from the date of filing the suit till realization of decree, and along with cost of the suit. The prayer of respondent No.1 for sale of mortgaged property was also allowed, vide Judgment and Decree dated 9-10-2010 and 26-10-2010 respectively.

3. The Decree, in terms of section 19(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, was converted into execution proceedings bearing No.1 of 2011 and the trial Court after observing all the codal formalities, put the mortgaged property to open auction and the property was purchased by the respondent No.2 as stated hereinabove.

4. It will be advantageous to reproduce the relevant Para No.5 of the impugned order, wherein, the detail of the steps taken by the learned trial Court to safeguard the interest of the appellant in the mortgaged property has been given, which reads as under:-- "The property in question was accordingly put to auction for the 4th time on 14-3-2012, when one person namely Sher Mohammad, in his capacity as the representative of Mrs. Samina Abdul Sattar, came and offered bid of Rs.20,000,000 for the property in question and deposited 25% of the bid amount. Subsequently, the bidder also deposited the remaining balance bid amount in terms of proclamation of sale, with the Nazir of this Court. The learned counsel for the judgment debtor filed objections to the bid in question on the ground that the bid was on lower side as such was not acceptable. Keeping in view, the objections so raised by the judgment debtor, regarding the market value etc. of the property in question, the property was ordered to be revaluated through the evaluators Messrs Joseph & Lobo Pvt. Limited, vide an order dated 18-4-2012. Messrs Joseph & Lobo Pvt. Limited, submitted its Evaluation report on 9-5-2012, with regard to the property in question and assessed its market value ranging between Rs.26,000,000 to Rs.28,000,000, whereas its force value ranging between Rs.20,500,000 to Rs.22,000,

000. The judgment debtor, however, again filed same sort of objections to the said valuation report. Later on with the consent of both the parties the property was again ordered to be reevaluated by Messrs Harvester Services Pvt. Limited, by this Court, vide an order dated 9-5-2012. Above valuator submitted its valuation reported received in the Court on 18-5-2012, giving the market value as Rs.27,200,000, whereas its forced sale value Rs.20,400,

000. But surprisingly the judgment debtor again objected to the said report by way of filing objections thereto on 24-5-2012 also filed a statement on the same date, requesting to appoint Messrs Akbani & Javed Associates, to re-evaluate the property in question at the cost of the judgment debtor. By the consent of the parties, the property in question as again ordered to be re-evaluated by the said evaluator, who submitted its valuation reported dated 5-6-2012, giving market value of the property in question as Rs.26,500,000, whereas its forced sale value as Rs.21,200,

000. However, the court vide an order dated 8-6-2012, directed the judgment debtor to deposit the decretal amount within a week, yet the judgment debtor failed to deposit the decretal amount in compliance of Court's orders, what to say of depositing the decretal amount, the judgment debtor never cared to deposit any amount in the Court and had been gaining time since 14-3-2012 on one pretext or the other, while the bidder on the other hand deposited 25% of the enhanced bid amount of Rs.1200,000 through a Pay Order No.POH5402533 dated 15-6-2012, drawn on Bank Al-Habib Limited, North Napier Road Branch, Karachi."

5. It would also not be out of context to mention that on 16-8-2012, the appellant and his counsel gave undertaking before this Court that they are willing to deposit the decretal amount along with 5% of the purchase money in terms of Order XXI, Rule 89, C.P.C. with the executing Court within 15 days. As another opportunity and to safeguard the rights and interests of the appellant in the subject property, further time was granted to appellant, subject to all just exceptions and objections if any, and notice of the undertaking was directed to be issued to both the respondents, but again the appellant failed to honour his undertaking/commitment.

6. Learned counsel for the appellant has pressed this appeal mainly on the ground that after the re-evaluation of the mortgaged property, fresh proclamation had to be issued and re-advertised. However, it appears from the record that no such plea was raised by the appellant before the trial Court, though admittedly, the appellant remained present on each date before trial Court and fully participated in execution proceedings. We are of the view, that under the facts and circumstances of this case, no fresh notice under Order XXI, Rule 66 was required to be served upon the appellant particularly when the last evaluation of the mortgaged property had taken place at the request of the appellant and the bid amount offered by the respondent No.2 was in his knowledge. The appellant did not offer or could arrange for any higher bid during the auction proceedings.

7. The other plea taken by the learned counsel for the appellant that the mortgaged property has been sold on throw away price, seems to be incorrect, as according to last assessment of value of mortgaged property made through Messrs Akbani & Javed Associates, appointed by Court at the request of the appellant who also paid the evaluator's fee, the market value was assessed at Rs.26,500,000 and its forced sale value was determined as Rs.21,200,

000. The sale of mortgaged property was accepted and confirmed in the sum of Rs.21,200,000 which was the matching price of forced sale value.

8. It is a matter of record, as admitted by the appellant in the memo of appeal, that after the deposit of full and final sale price of auctioned property in trial Court the bid offered by the respondent No.2 was accepted and confirmed, and in terms of Order XXI, Rule 92, C.P.C. became absolute. Consequently, the learned trial Court handed over the possession of the property in question to respondent No.2, through Nazir of the Court. We are of the view that the respondent No.2, being auction purchaser, has acquired valuable rights in the property which cannot be disturbed or recalled at this stage at the behest of the appellant, whose conduct throughout also reflects the non-seriousness in matter, whereas it is evident from his conduct that he merely wants to thwart the execution proceedings without any lawful justification.

9. Accordingly, we do not find any merits in the instant appeal, which was dismissed vide our short order dated 19-9-2012 and these are the reasons for such short order. KMZ/M-123/K Appeal dismissed.