1994 PLP 546 (MLD)

This order will dispose of Writ Petition 371 of 1976 and Crl. Misc. No.446-Q of 1973. W.P. 371 76.

2. This Constitutional petition is directed against order dated 26-1-1976 by which the residential house belonging to the petitioner has been attached in lieu of alleged loan of Rs.44,701.08 from the Industrial Cooperative Bank Limited, Lahore respondent.

3. The facts of the case as stated in the petition are that in February, 1957 Sundershan Re-Rolling Mills, Amloknagar, Sargodha was leased out to the petitioner by the Industrial Rehabilitation Board for the period not exceeding one year on a monthly rent of Rs.1,000 and this lease was extended upto 30th June; 1959. The present petitioner was contesting for the transfer of the Mills but the same was refused by the Chief Settlement Commissioner and finally he was denied relief by Hon'ble Supreme Court as is evident from Mirza Muhammad Yaqoob v. The Chief Settlement Commissioner PLD 1965 SC 254.

4. It appears that firm Sundershan Re-Rolling Mills imported M.S. Billets through the respondent-Bank and the goods were sold by the respondent in 1961 for non-payment of the loan amount. Consequently, the house of the petitioner was attached whereupon the present writ petition was filed. The petitioner appeared in person throughout and is not represented by any counsel.

5. On 30-2-1976 respondent was directed to produce the record through a responsible officer to show if the loan was obtained by the petitioner from the Bank and that the officer should be competent to given answer to the questions at the time of hearing and thereafter the case was taken up by this Court on 5-3-1976 and the following order was passed in presence of Mr. Safdar Hasan Zaidi, Manager of Industrial Cooperative Bank:-- "Mirza Muhammad Yaqub petitioner in person. Mr. Nisar Ahmad Butt, Advocate for the respondent. Mr. Safdar Hasan Zaidi, Manager of Industrial Cooperative Bank. The latter submits that the M.S. Billets imported by the firm, Sundershan Re-Rolling Mills were pledged with the Bank in 1959. The goods were sold in 1961 for non-payment of the amount for which they were pledged. I have called upon the officer to show any notice issued to the firm or to its proprietor, the present petitioner asking him to deposit the amount in the absence of which the goods shall be sold. He is unable to do so. The sale of goods, therefore, was illegal and the petitioner cannot be burdened with the amount prima facie. This petition is admitted to regular hearing. (2) The stay order granted shall continue."

6. I have heard the petitioner in person and the learned counsel for the respondent alongwith the representative from the respondent-Bank. In the first place I must observe that Writ Petition was admitted for regular hearing on 5-3-1976 and no written statement has been filed by respondent. Even at the time of hearing the representative of the Bank has failed to produce any record regarding fixing responsibility on the petitioner to pay the required loan. The statement of Mr. Safdar Hasan Zaidi, Manager recorded on 5-3-1976 by this Court shows that the goods were pledged by the firm Sundershan Re-Rolling Mills in 1959 and the same were sold in 1961 and that no notice was given before the sale of goods, for the deposit of the amount of loan. In these circumstances the respondent has failed to prove that any amount of loan was due from the petitioner and that the same is now recoverable by attaching his property. It is submitted by the petitioner that at the time of sale of the goods in 1961 he was not the lease-holder of the factory nor the same was allotted to him by the Chief Settlement Commissioner and that the Mills in question was transferred to someone else. In the absence of any documentary evidence, the contention of the petitioner cannot be accepted, however, the fact still remains that the respondent has not been able to produce a single document showing,' the petitioner liable for the payment, of the loan in question. Crl. Misc. No.446-0/73.

7. This criminal miscellaneous arises out of some criminal proceedings filed by the respondent with the criminal Court to proceed against the petitioner for non-payment of loan advanced to him. It appears that a notice dated 24-3-1968 was issued to the petitioner directing that the following amounts should be paid:-- Principal Rs.20,823.38 Interest Rs.4,523.44 Law Charges Rs.2,329.00 Total Rs.27,675.82 It is held in the Writ Petition No.371 of 1976 that the respondent has filed to prove the loan advanced to the petitioner and in any case the goods were sold in 1961 by the respondent without any notice and, therefore, the petitioner is not liable to pay any required amount to the Bank. In the circumstances proceedings before the Criminal Court are liable to be quashed. For foregoing reasons both the writ petition and the Crl. Misc. application are accepted and the order of attachment dated 26-1-1976 by the respondent in respect of the house in question is declared to have been passed without lawful authority and of no legal effect. However, there is no order as to costs. H.B.T./M-919/L Petition accepted.