P L D 1988 Karachi 429 (PLP)

This application under section 151, C.P. C. is filed by the purchaser M/s. Anum (Pot.) Limited with a request that the balance amount of sale consideration amounting to Rs.22,954,500 may be allowed to be raid iii three equal instalments of Rs.7,65I,

500. The first instalment to be paid on 18‑4‑I988, the second `on 18‑6‑1988 and the last instalment on 18‑8‑1988. The applicant has also offered to pay in addition to tress instalments a mark up of 14% on the unpaid balance from 19‑4‑1988 till I8‑8‑1988. It is alleged in the application that an account of the tight cash liquidity position the applicant is not in a position to deposit the entire balance sale consideration in lump sum as directed by the Court. The application is opposed by the learner counsel for the creditors. They jointly urged that the Court has nu jurisdiction to extend the time for payment as the initial time for payment of the balance sale consideration was fixed by the Court with the consent of all the parties. It may be mentioned here that by an advertisement dated 15‑I2‑I987 the Official Liquidator had invited offers for sale of the plant and machinery of the Company iii liquidation. The present applicant had offered a sum of Rs.22 million for the same but when the offer way placed before the Court for confirmation on 6‑3‑1988 another offer of Rs.25.5 million was made for these plant and :machinery by M/s. Mehran Steel Corporation. The Hon'ble Chief Justice who heard the matter on 6‑3‑1988 with the consent of the Official Liquidator as well as the counsel for the creditors then present before him allowed submission of fresh offers by all the parties including the present applicant on the condition that whosoever makes an offer higher that, Rs.25.5 million will be sold the machinery and plant and that no further formal order of the Court will tie required for confirmation of that offer It was however= specifically provided in the aforesaid order that all other terms anti conditions as advertised in the proclamation of sale shall remain the same including the term for payment of the balance amount of 90% within 30 days of the confirmation of Mite offer. It is an admitted 'position that pursuant to the above order of the Han'ble Chief Justice dated 6‑3‑1988 the present applicant made an offer of Rs.25 million 5 lacs and 5 thousand which was the highest and the same was accented by the Official liquidator can 19‑3‑1988. It is also not disputed that in terms of the order dated 6‑3‑1988 the balance of the sale consideration amounting to Rs.22,954,500 is to be paid by the applicant /purchaser on or before 18‑4‑1988. Learned counsel for the applicant contends that in view of the circumstances explained by the applicant the. Court has power to extend the time in the manner prayed for in the application. Learned counsel for the creditors as well as Official Liquidator on the other hand opposed the application jointly and contended that neither the cause shown by the applicant is sufficient for extension of time nor the Court possess the power to extend the time as the order confirming the sale on the terms and conditions of payment of the balance of the purchase amount was a consent order which could only be varied with consent of the parties. In support of his contention that in spite of the order being a consent one the Court possesses the power, learned counsel for the applicant /purchaser relied on the case of Periyakkal v. Dakshyani AIR 1983 S C

428. The relevant observation relied upon by the learned counsel appears at pages 430‑431 is as follows:‑ "

4. In the case before us, the situation is totally different. Unlike the case of Hukumchand v. Bansilal, A I R 1968 S C 86 where there was a statutory compulsion to confirm the sale on the dismissal of the application under O.XXI Rule 90 and therefore, postponement and further postponement of the confirmation of the sale could only be by the consent of the parties, in the case before there was no statutory compulsion to dismiss the application, under Order XXI, Rule 90 in the absence of an agreement between the parties. The Court would have then decided the appeal arising out of the application on the merits. The parties however, entered into a compromise and invited tilt Court to make an order in terms of the compromise, which the Court did. The time for deposit stipulated by tote parties became the time allowed by the Court and this gave the Court the jurisdiction to extend the time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It mould be granted in rare cases to prevent manifest injustice. True, the court would not re‑write a contract between the parties but the court would relieve against a forfeiture clause. And, where the contract of the parties has merged in the order of the Courts the Court's freedom to act to further the ends of justice would surely not stand curtailed." It is accordingly contended by the learned counsel for the applicant that I had the jurisdiction to extend further time fixed by the Court by the consent order dated 6‑3‑1988. Alternatively it is contended by the learned counsel that in so far the official liquidator and the counsel fur the creditors are concerned they have no locus standi to oppose the 'extension of time as in :matter of safe of tire property by the Court the controversy is confined between the purchaser and the Court and the (;port is the sole judge in such circumstances to extend the time if it is satisfied that the case for such extension is made out. Learned counsel for the creditors as well as official liquidator, on the other hand referred to the cases of Ahmed Shat and others 1974 S C M R 191, Sirajuddin Banjuman v. Abdul Latif 1983 SCMR

836. In the first noted case of Ahmed Shah with reference to an argument that the Court possesses the power under section 148, P.P. C, to extend the time fixed by the Court with consent of the parties for payment of the pre‑emption money the Court made the following observations: "We are unable to agree with the contention that Order XX, rule 14, read with section 148 of the Code of Civil Procedure permitted the Court to extend the time in a matter. The relevant provisions are as follows:‑‑ Section 148 of the Code of Civil Procedure:‑ "Where any period is fixed or granted by the Court the Court, may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. " The relevant provisions of Rule 14 of Order XX of the Code of Civil Procedure:‑ " ( i)Where the Court decrees a claim to pre‑emption in respect of a particular sale of property and the purchase‑money has not been paid into Court, the decree shall‑ (a) specify a day on or before which the purchase‑money shall be so paid, and (b) direct that on payment into Court of such purchase‑money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase‑money and the cost (if any) are not so paid, the suit shall be dismissed with costs. " It is evident from these provisions that they apply to a case where the Court has fixed the time. In the present case the time was fixed as the result of an agreement between the parties, and all things remaining the same such time could not be altered without the consent of all the parties. The learned Advocate for the petitioners has failed to cite before us any decision to the contrary." The observations in Ahmed Shah and others' case was quoted with approval in Sirajuddin's case with regard to the powers of the Court for extension of time which is fixed with consent of the parties and the following observations were made in that case at page X341 follows: ‑ "As regards the time fixed by the parties being not of the essence of the agreement the decision of this Court in Ahmed Shah and 2 others v. Muhammad Yar and 6 others 1974 SCMR 191 holds the field. It was held in that case that:‑ It is evident from these provisions that they apply in a case where the Court has fixed the time. In‑the present case the time was fixed as the result of an agreement between the parties, and all things remaining the same such could not be altered without the consent of all the parties." No doubt the observations of the Indian Supreme Court in the case referred to above do support the contention of the learned counsel for the applicant but in view of the observations of our own Supremes Court I am of the 'View that no extension of time can be granted by the Court where it is fixed with consent of the parties. However, the contention' of the learned counsel for the applicant further is that the consent of the Official Liquidator and the counsel for the creditors was of ns. avail in the present case as the matter of confirmation of sale was between the purchaser and the Court, I am unable to agree with the learned counsel for the applicant. The sale was conducted under the provisions of the Companies Act by the Official Liquidator who for all practical purposes represented the interest of the Company as well as the creditors. The order dated 6‑3‑1988 passed by the Hon'ble Chief Justice was with the consent of the Official Liquidator as well as counsel for a creditors then present before the Court. In these circumstances in my humble view the Court could not vary the terms and conditions of the sale except with consent bf the parties present at the tints the order dated 6‑3 1988 was passed. Apart from it the grounds mentioned in the application for extension of time are absolutely vague and are not sufficient for exercise of any discretion in favour of the applicant. The only paragraph of the application in which the circumstances for extension of time is made out is paragraph 3 of the application which reads as follows:‑ "

3. That due to very right cash liquidity position on account of unexpected non‑materializatiar, of some other business commitments, the applicant is in a difficult position to deposit the entire balance sale consideration in cash with the official liquidator within the time specified in the letter of acceptance." A reading of the above paragraph will show that the extension of time is sought by the purchaser on absolutely vague and uncertain grounds and as such on merits no case is made out. While I had announced the dismissal of the application in Court Mr. Sharf Fraidi, learned counsel for the applicant stated that another ground mentioned in the application for extension of time is that the terms of the sale have been varied by the Official liquidator unilaterally and as such his client is entitled to have the sale annulled. This contention of the learned counsel cannot be considered at present as no such prayer has been made in this application, However, if the applicant has any such right available to him under the law he is at liberty to exercise the same. The application is dismissed with no order as toy costs. A. A . /S‑183/ K Application dismissed.