2008 PLP 338 (CLD)

This Constitutional Petition has been filed by Ms. Rahima Iqbal against the Order dated 9-12-2006 passed by learned Banking Court No.II at Karachi, in Suit No.21 of 2002. (Execution' No.70 of 2004), forfeiting Rs.32,50,000 to Government Account under Order XXI, Rule 86, C.P.C. deposited by the petitioner. Brief facts of the case are that, pursuant to an advertisement published in Daily Jang (Annexure A, page 15 of the Court file), mortgaged property bearing Na-class No.309, Deh Joreji, Bin Qasim Town, Malir, National Highway, Shahbaz Hotel Site, Karachi, admeasuring 4 acres was offered for auction by the Banking Court in order to satisfy the decree of Zarai Taraqiati Bank Limited, Ibrahim Haidery Branch, Karachi in Suit No.21 of 2002 (Execution No.70 of 2004). In this advertisement it was nowhere mentioned that the property which was being offered for auction is in fact a leased land for 30 years given by the government for development of poultry farm and instead it was indicated in the said advertisement that the property is for absolute sale. The petitioner without knowing the fact that this property is neither saleable nor transferable had given the highest bid of Rs.1,30,00,000 and had deposited 25% of the bid value viz. Rs.32,50,000 towards earnest money. The balance amount was payable within fifteen days. In the meantime, according to the petitioner, she had come to know about the status of the land and as such submitted a handwritten request to the Banking Court for refund of 25% earnest money, annexure B to the petition. The petitioner has also submitted a handwritten application in Urdu, wherein she had made similar request to the Banking Court. The learned Banking Court had issued show-cause notice to the petitioner, annexure D-1 to the petition. In this show-cause notice, once again, the Banking Court has committed the similar mistake, which was committed at the time of publication of the advertisement in Daily Jang and did not mention that this land was to be taken as a land for 30 years leased land for poultry farming, and is neither saleable nor transferable. It was mentioned in the show-cause notice that: -- "Whereas the mortgaged property bearing Na-class No.309, 4 Acres, Deh Joreji, Bin Qasim Town, Malir, National Highway, Shahbaz Hotel Site, Karachi was put into auction on 5-10-2006, in which you offered bid in the sum of Rs.1,30,00;000 (Rupees One Crore Thirty Lac Only). The petitioner in response to this show-cause notice had personally appeared before the learned Banking Court and submitted the above mentioned applications. The Banking Court vide impugned order forfeited the entire earnest money of Rs.32,50,000 to Government Account under Order XXI, Rule 86, C. P. C. Today, Mr. Sanaullah Noor Ghori, learned counsel for the respondent No.2-Bank has 'pointed out that the judgment-debtor has already paid the entire decretal amount to the Bank, the Court's decree has been satisfied and as such now the Bank has no concern with the subject-matter of this petition. However, as an officer of the Court, he has, assisted the Court that the Constitutional petition is not maintainable against the impugned order of the Banking Court as under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, appeal lies to the High Court. We have heard the petitioner as well as Mr. Sanaullah Noor Ghouri, appearing for the respondent No.2 and perused the record. Since the petitioner is a woman and has appeared in person, we do not want to give her trouble to first withdraw this petition and then enter into another set litigation for a cause which is very simple and we have already heard the same. We convert this petition into an appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, and direct the office to number it accordingly. We hold that the advertisement published by the Banking Court itself in Daily Jang is defective. In response to the said advertisement the petitioner, under a bona fide impression of purchase/sale of the land, participated in the auction, given bid and deposited huge amount of Rs.32,50,000 as earnest money from her finances. It will, therefore, be unfair to allow forfeiture of the earnest money which was deposited by the petitioner under a wrong impression. She has timely appeared before the Banking Court, replied the show-cause notice and requested for refund of the earnest money, which request was not considered by the Banking Court. We, accordingly, order the Banking Court No.II to refund the amount of P.s.32,50,000 deposited by the petitioner, Ms. Rahima Iqbal, with the Nazir of the Banking Court. This appeal is disposed of in above terms with no orders as to cost. S.A.K./R-1/K Appeal accepted.