2021 PLP 1224 (CLD)

QAISER RASHID KHAN, J.

Through the present appeal, the appellant has called in question the judgment and decree dated 10.1.2011 of the learned Judge Banking Court-II, Peshawar whereby the plaint of the appellant/plaintiff was rejected.

2. As per facts averred in the present appeal, the appellant/ plaintiff filed a recovery suit against the respondent-bank to the effect that he had purchased a workshop namely, "Techno Liner Automobile" situated at Charsadda Road, Peshawar from defendant No.8 with the consent of the respondent-bank for a sale consideration of Rs.2500000/- because the said workshop was already mortgaged with the respondent-bank. Thereafter, the appellant/plaintiff got the possession of the said workshop and also started payment in installments to the respondent-bank as per settlement/agreement. But then the respondent-bank on the one hand refused the delivery of the documents of the mortgaged property to the appellant/ plaintiff and simultaneously filed a recovery suit only against the defendant No.8 and his guarantors for the recovery of Rs.1976866.01 before the learned Banking Judge, Peshawar without impleading the name of the appellant/ plaintiff. During the course of proceedings before the learned Judge Banking Court-II Peshawar, the parties reached to a settlement according to which the mortgaged workshop was purchased by the appellant/ plaintiff for a sale consideration of Rs.1750000/- and on 26.9.2003 paid an amount of Rs.950000/- through voucher No.557002 BOK to the respondent-bank with the stipulation that the remaining amount would be paid by the appellant/ plaintiff through installments. Thereafter a dispute arose between the plaintiff and the Road Management Authority Peshawar as the Authority claimed some portion of the workshop to be the government property; that the respondent-bank did not solve the said dispute but rather reopened the case on the basis of mala fide without any notice to the appellant/ plaintiff and purchased the said workshop against a sale consideration of Rs.850000/- through illegal and fake auction but due to valuable interests of the plaintiff involved in the workshop, he again purchased it for Rs.1026864/-; that the appellant/ plaintiff time and again requested the respondent-bank for the repayment of Rs.950000/- but the respondent-bank refused, hence the suit.

3. On being put to notice, the respondent/ defendant bank filed an application for leave to defend as well as an application under Order VII, Rule 11, C.P.C. for rejection of the plaint which was accepted and the plaint was rejected vide judgment and order dated 10.1.2011, hence his appeal.

4. Learned counsel for the appellant/ plaintiff contended that the learned Banking Court rejected his plaint in a summary manner without attending to the controversy between the parties keeping in view the averments in the plaint which could only be resolved after recording pro and contra evidence. He further contended that the appellant has wrongly been deprived of a huge amount of Rs.950000/- by the respondent-Bank in the garb of recovery from the principal barrower but the learned Banking Court did not pay any heed to such plea of the appellant/ plaintiff and held the suit as not maintainable in disregard to the facts and record.

5. Learned counsel for the respondent-Bank on his turn defended the impugned findings of the learned Banking Court on almost the same grounds as detailed therein. Arguments heard and available record perused.

6. As the record (that of recovery suit No.1/1 of 2002, titled "The Bank of Khyber v. Capt. (Retd.) Mehboob Ahmad Khan and others" before the learned Banking Court-I Peshawar) unfolds, the respondent-Bank filed a recovery suit for a sum of Rs.19768664.01 against the respondent No.8 and two others before the learned Banking Court-I, Peshawar on 2.1.2002 which was entrusted to the learned Judge Banking Court-II, Peshawar for disposal. On being served, the respondent No.8/ defendant No.1 namely, Capt. (Retd.) Mehboob Ahmad, filed his leave to defend application and besides other averments stated therein to have sold the project to Haji Abdur Rashid (the present appellant) and then on 7.6.2002 referred to some settlement with the respondent-Bank. It was on 6.9.2002 when the appellant came up with his application for impleadment in the main suit before the learned Banking Court. The proceedings before the learned Banking Court-II continued and then on 5.5.2003 the counsel for the main defendants and the present appellant requested for adjournment to settle the dispute. It was again on 27.9.2003 when the present appellant as a third party accompanied by the representatives of the respondent-Bank furnished a settlement deed before the learned Banking Court according to which he had paid an amount of Rs. 950000/- to the Bank on 26.9.2003 and also promised to pay Rs.50000/- on 30.9.2003 and the remaining amount of Rs.0.750 million by 20th December, 2003 in three installments and thus the suit was adjourned sine die to be restored by the respondent-bank at any time if the amount was not deposited within time. It was on 8.6.2004 when the suit was restored and then on 15.7.2004 a decree for a sum of Rs.1360720/- with costs was granted in favour of the respondent/ plaintiff-Bank against the defendants and in the said detailed order, it was held that since the appellant as a third party had failed to comply with the terms and conditions of the settlement deed by not depositing the agreed amount, therefore, the mortgaged property was also simultaneously directed to be put to auction. The order sheet dated 11.9.2004 shows that the auction report was received in the negative and that is how the mortgaged property was again directed to be put to open auction. On 28.10.2004, the auction report was received according to which the respondent/ decree holder Bank had purchased the mortgaged property against the auction amount of Rs.850000/- and the same was accepted by the auctioneer on the spot. The appellant being present before the learned Banking Court volunteered to purchase the mortgaged property against the balance decretal amount of Rs.1026864/-. The statement of the appellant to pay such amount was recorded and placed on file. He accordingly deposited a sum of Rs.200000/- on issuance of receipt and was directed to pay the remaining amount of Rs.826864/- plus auction fee of Rs.15000/- within thirty days and it was further held by the learned Judge Banking Court that in case of failure of the appellant to make the payment of the said amount within the stipulated period, then an amount of Rs.200000/- would be forfeited. Thereafter on 4.12.2004, the appellant requested for extension of time for depositing the amount and lastly on 1.3.2005, the appellant deposited the balance amount of Rs.841864/- in the court through a cheque and the learned Judge Banking Court-II directed that Sanad- e-Sultani in the name of the appellant be issued which was accordingly issued in his name on 14.3.2005.

7. With such background of the case, the appellant through his very belated suit against the respondent-Bank came up with only the half truth and conveniently ignored or suppressed the other half. Admittedly, it was Capt. (Retd.) Mehboob Ahmad who had secured financial facility from the respondent-Bank and besides the execution of the other documents through mortgage of the property in the form of workshop in favour of the respondent-Bank. On his failure to pay off his liability, the respondent-Bank filed a recovery suit against him and the rest is history as narrated in the preceding paras. If the appellant had purchased the mortgaged property from the respondent No.8 namely, Capt. (Retd.) Mehboob Ahmad, during the currency of the mortgaged deed, the same was without the consent and knowledge of the Bank as the latter was neither privy nor party to the sale agreement. Moreover, the appellant of his own sweet-will and volition agreed to pay off the liabilities on one occasion through some settlement between the parties and then on 28.10.2004 he expressed his desire to purchase the property from the Bank after the latter had purchased the same through auction.

8. In view of the foregoing discussion, we are of the considered view that through his recovery suit, the appellant only attempted to reopen a case in which he actively participated and which finally culminated in the issuance of sale certificate of the property in his name on 14.3.2005 and moreover, he never challenged any order of the learned Banking Court through an appeal. Thus by every count, the appellant was estopped by his own conduct from instituting the recovery suit against the respondent-Bank and the learned Judge Banking Court has rightly rejected his plaint by accepting the application under Order VII, Rule 11, C.P.C. of the respondent-Bank. As such, the impugned findings thus do not suffer from any illegality or material irregularity so as to call for the interference of this court in the same through the present appeal. Accordingly this appeal stands dismissed with no order as to costs. KMZ/163/P Appeal dismissed.