2014 PLP 1220 (CLD)

MALIK MANZOOR HUSSAIN, J.

This single order is meant to decide (1) C.M. No.5-P of 2013 filed in suit B.O.S. No.2-P of 2012 for consolidation of Suit No.1-P of 2013 and Suit No.2-P of 2013, (2) C.M. No.9-P of 2013 filed in Suit No.1-P of 2013, (3) C.M. No.8-P of 2013 in Suit No.1-P of 2013, (4) C.M. No.10-P of 2013. As all the C.Ms. are filed in respect of Common issues involved in both the suit between the same parties pending disposal before this Court.

2. The suit bearing No. B.O.S. No.1-P of 2013 titled Bank of Khyber v. Messrs United Rubber (Pvt.) Limited and others has been filed on 1-1-2013 by the Bank for recovery of Rs.17,23,57,266 of amount as persistent default. While the suit B.O.S. No.2-P of 2012 titled Messrs United Rubber (Pvt.) Limited and 4 others v. The Bank of Khyber has been filed on 10-11-2012 by the borrower for recovery excess paid amount of Rs.140,581,162 declaration, permanent injunction, rendition and settlement of account.

3. Perusal of record reveals that subject matter of above caption suits is the same as the dispute, issues, mortgage property, parties and the impugned finances of both the suits are the same. Thus prayer for consolidation of both the suits seems genuine and would be in the interest of justice as well as in the interest of both the parties, because joint trial of both the suits would certainly obviate possibility of the conflict of Judgments. Thus in order to avoid multiplicity of proceedings, the application bearing numbers C.M. No.5-P of 2013 in Suit No. B.O.S. No.1-P of 2013 for consolidation of suits is accepted.

4. As observed above that the moot issue between the parties is with regard to availed financial facilities and disbursement of same which can be adjudged through invoking the provision of section 5(8) of Financial Institutions (Recovery of Finances) Ordinance, 2001. Since the borrower has already applied for appointment of the Commissioner and had offered the payment of charges of the Commissioner, therefore it would be in the interest of both the parties that a well reputed, experienced Commissioner be appointed to properly audit the accounts submitted by the parties, in order to resolve the controversy amicably.

5. Today on behalf of Borrower Company Mr. Iqbal-ur-Rehman is present in Court, while on behalf of Bank learned Counsel Mr. Nazirullah Qazi, Advocate is present. Both the parties were required by this Court to provide list of reputed Charted Accountants or any other professional official to be appointed, as Commissioner. The list provided by the Borrower Messrs United Rubber (Pvt.) Ltd. comprises the names of:-- (1) Ashfaq Ahmad, AVP (R), Habib Bank Limited, MBA (Finance), LLM; PGDPA, DAIBP (S-1), C/O Ashfaq and Associates, TF-40, Deans Trade Centre, Saddar Road, Peshawar Cantt. (2) Shahid Sami & Co. Chartered Accountants, Lamsy Arcade, 1st Floor, Fakhr-e-Alam Road, Peshawar Cantt. (3) Shahid Ahmad & Co., Chartered Accountants, 19 A, Jamrud Lane, University Town; Peshawar. The list provided by the Bank Comprises the names of:-- (1) FTC Rayga Finance & Tax Consultants a Multi-Dimensional Consultancy Firm TF-340, Third Floor, Deans Trade Centre Saddar Road, Peshawar Cantt. N.-W.F.P., Pakistan. (2) Tariq Ayoub Anwar & Co. Chartered Accountant Flat No.9, Sial Flats, Abadara Chowk, University Road, Peshawar. (3) Zeeshan Ali & Co. Chartered Accountants 8th Floor, State Life Building The Mall, Peshawar Cantt. Both the lists provided are part of record of file.

6. The names proposed by the Borrower Company were provided to the learned counsel for the Bank and with the mutual consent of both the parties, Mr. Ashfaq Ahmad, AVP (R), Habib Bank Limited. MBA (Finance), LLM, PGDPA, DAIBP(S-1), C/O Shfaq and Associates, TF-40, beans Trade Centre, Saddar Road, Peshawar Cantt. is appointed as Commissioner to audit the account maintained by the Bank, with that of the Borrower for the purpose of audit with finding to the liabilities of the parties. The fee would be settled and borne out by the Borrower. The learned Commissioner will submit his report to Court within a period of two months from receipt of order of this Court. Both the parties are directed to associate with the learned Commissioner and make available the concerned record as and when required. Adjourned to 21-4-2014. KMZ/161/P Order accordingly.