2011 PLP 806 (CLD)

This first appeal against order has been directed under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 against the impugned orders.

2. Brief facts of the case as mentioned in the instant appeal are that the appellant is owner of Bungalow No.L-8, Mandi Town, Joharabad District Khushab and is residing at the address given in his National Identity Card No.61-101-9337997-9, i.e. House No.26,Street No.2, Sector G-10/3, Islamabad. The appellant is an aged ailing person of about 90 years age. According to N.I.C, he was born in year 1919. Due to old age, the appellant normally avoids travelling for longer distances and needs help/association of a care taker. The respondent No. 2 as it appears from the case record, on 12-9-1998 submitted an application to the Manager of respondent No.1 for Running Finance of Rs.01.00 million for one year with a promise to deposit Rs.02.00 million and the facility was stated to be for the purpose of meeting the daily business expenses, upon which vide Sanction Advice dated 23-9-1998, the bank allowed the limit of Running Finance to the tune of Rs.0.900 million against the security by way of hypothecation of stock in trade etc. for one year with an undertaking to create legal registered mortgage of Property No.L-8, owned by appellant, (a retired Commander of Pakistan Navy), which property values more than Rs.1-crore. The respondent No.2 was also general attorney of appellant, which document was executed in the year 1982. The respondent No.2, the beneficiary of the loan without intimating the appellant for his own benefit opted to act on behalf of the appellant without his knowledge and permission and himself executed the documents of collateral mortgage allegedly on 1-10-1998 and signed it himself, which is illegal and not permissible under section 215 of the Contract Act, unless specifically permitted, because for his own benefit, he cannot do so without specific written consent of the principal-appellant. Further the sanction was only for the Running Finance for meeting the daily expenses of business of respondent No.2 for a limited period but additionally over and above and beyond the original contract obtained a cash finance facility without obtaining the consent of appellant and it was later on carried over for the subsequent years without obtaining any letter of continuity from the appellant while the alleged fictitious mortgage deed, which, is disowned by appellant, was only for the Running Finance facility. That allegedly general power of attorney was also fictitiously and falsely prepared on 16-8-2000 on behalf of appellant in favour of bank and was signed by respondent No.2 and also fake signatures of the appellant were indicted on the document. The appellant has never signed such document. It was shown to be registered document, but it does not indicate any registration number although it bears the seal of Sub-Registrar and some alleged signatures of his. The submission is that this alleged document dated 16-8-2000 was neither executed by the appellant nor ever signed by him nor was registered. That the respondent No.1 filed a suit for recovery of Rs.41,61,407.42 against respondent No.2, the borrower and against the appellant on the basis of documents referred to above. The correct address of appellant was not written in the suit. Even publication was made in a local newspaper "Al-Jalal" the circulation of which is limited to District Sargodha, the correct address of the appellant was not given. No summons/notices were ever received from Banking Court, Sargodha and he was proceeded against ex parte and the suit was decreed on 27-7-2005. The appellant remained unaware of the decree. The property of the appellant allegedly mortgaged was auctioned in favour of respondent No.3, the possession of which is now forcibly intended to be taken by the order of the Court.

3. The appellant filed a number of applications and also written arguments but the learned trial court or the learned executing court did not consider those applications and decided against the appellant, which is not warranted under the law.

4. Learned counsel further contends that the appellant was 90 years old who is residing in Islamabad and has abandoned his residence from Joharabad but the suit was filed on the address of Joharabad. The appellant was never served with any summon/notice and learned trial court proceeded with the matter on the basis of a proclamation which was published in a local area and was not having broad circulation. The general power of attorney in favour of bank dated 16-8-2000 is a fake and forged document. The appellant never executed power of attorney in favour of the bank. He never appeared before the Sub-Registrar and never made any statement before him. All these controversies require detailed scrutiny and it was incumbent upon the learned trial Court to frame issues and after recording the evidence of both the parties to decide the matter but the learned trial court passed the impugned judgment and decree in a hasty and fanciful manner which is not sustainable in the eye of law, therefore, F.A.O. be allowed, impugned orders mentioned in the prayer clause of F.A.O. be set aside and case be remanded back and the execution proceedings be stayed and possession of the appellant may kindly be protected till the final disposal of instant appeal.

5. Conversely learned counsel for the respondent-bank has vehemently opposed this F.A.O. and has supported the impugned orders and has contended that the appellant was well aware of the proceedings before the learned Judge Banking Court. He has further pointed out that in identity card of appellant, he has mentioned his permanent address of Joharabad. The appellant was served with notice but he did not receive the notice. Thereafter the service was effected through proclamation. Learned counsel has further pointed out that the judgment and decree was passed on 27-3-2005 against whom, the appellant filed Regular First Appeal which was dismissed on 2-3-2006 and thereafter the appellant never assailed the matter any more before the Hon'ble Supreme Court of Pakistan. Learned counsel also pointed out that the suit property has been auctioned. The auction was confirmed on 3-12-2007. Thereafter sale certificate was issued in favour of respondent-bank and possession was also delivered to him, so, at this belated stage, no interference is warranted under the law, F.A.O is without any merit, it be dismissed.

6. Arguments heard, Record perused.

7. Perusal of record highlights that the original judgment and decree was passed on 27-7-2005 and against the judgment and decree of learned Judge Banking Court, the appellant preferred R.F.A. which was also dismissed on 2-3-2006, The contention of learned counsel for the appellant that it was not the appellant who filed the R.F.A. but some unknown person filed the said R.F.A., is misconceived because learned counsel for the appellant has failed to point out any evidence in support of this contention. It was not a case between two private individuals but the plaintiff/ respondent No.1 is a bank. Thereafter the appellant filed a number of miscellaneous applications. He had also moved an application on 13-2-2007 for setting aside the ex parte proceedings dated 7-6-2005 and ex parte order dated 27-7-2005 along with application for condonation of delay. The third application was moved by judgment debtor No.2 against employees of MCB under section 476, Cr.P.C. Written replies were filed regarding application for setting aside ex parte order and for condonation of delay. The objection petitioner had not deposited 20% of the auctioned money as directed in order dated 23-5-2007. His objection petition was accordingly dismissed due to nom-deposit of the said amount. He however, submitted another application for staying auction proceedings. The application was disposed of with the observations that auction proceedings had already been completed and only sale certificate was to he issued. The application for setting aside the ex parte proceedings was fixed for arguments for 18-7-2007 but the proceedings could not be taken up due to strike of Bar and the proceedings were adjourned to 15-8-2007.

8. The next date of hearing was fixed on 2-4-2008 for further arguments and for production of case law but on that date, nobody appeared, so, the application for setting aside ex parte proceedings and other applications were dismissed in default.

9. Record further highlights that despite the fact that original judgment and decree passed by the learned Judge Banking Court was challenged in R.F.A. which was dismissed on 2-3-2006 but despite notice the appellant has not availed further remedy before the Hon'ble apex Court, so, the appellant cannot derive any benefit from the instant F.A.O particularly when after sale, the auction has not only been confirmed but also sale certificate has been issued in favour of respondent-bank and possession of suit property has also been delivered to the respondent No.1. Learned counsel for respondent No.1 has further informed this Court that respondent-bank further sold the suit land and this way has processed of selling property to satisfy decree had gone a long way, no relief at this belated stage could be granted to the appellant as law laid down in case Messrs Rasu Food Industries and another v. Messrs Pakistan Industrial Leasing Cooperation Limited and others (2005 SCMR 1643).

10. As a result of above discussion, we are of the considered view that the F.A.O. is without any substance which is dismissed. A.R.K./A-42/L Appeal dismissed.