2005 PLP 1394 (CLD)

Pursuant to passing of the decree for recovery of Rs.83,866, against the appellants, by the then Banking Court, vide judgment and decree dated 5-1-1997, the decree-holder filed the execution petition for implementation of the decree through the sale of mortgaged property. During the execution process, the appellants filed the application for the rejection of the execution petition on the plea that they have liquidated the entire liability under the incentive scheme floated by the State Bank of Pakistan, under BPRD Circular No.19 dated 5-6-1997. The application was resisted by the respondent-Bank and the learned Banking Court dismissed the said application. The appellants filed the Constitutional petition (Writ Petition No.22088 of 1999), which was dismissed by this Court, being incompetent, vide order dated 9-4-2003. Subsequently, the appellants filed another application before the learned Banking Court, asserting therein, that with the introduction of another incentive scheme, issued vide letter dated 11-9-2003, the respondent was bound to close the account of the appellant, but it is bent upon to auction appellant's property. The said application was resisted by the respondent-Bank and ultimately the learned Banking Court dismissed the said application, vide impugned judgment dated 6-12-2004, hence the present. appeal.

2. Learned counsel for the appellants has submitted that the appellants have paid the entire outstanding amount under the two incentive schemes, therefore, the impugned judgment is not sustainable in law. He has added that the impugned judgment suffers from legal defects, therefore, the same be set aside and it be declared that nothing is outstanding against the appellant. He has relied upon Agricultural Development Bank of Pakistan through Manager v. Mst. Amiran Bibi and 3 others 2004 CLD 958 and United Bank Limited v. Messrs Ilam Din & Company and 13 others 2004 CLD

992. Learned counsel for the respondent has, however, supported the impugned judgment.

3. Admittedly, appellant's previously instituted application on the same subject-matter, whereby the claim of the appellants was that they have liquidated the decretal amount under the incentive scheme of 1997, was opposed by the Bank and dismissed by the learned Banking Court. Appellant's Constitutional petition was dismissed and no appeal against that order was filed, thus, the said order has attained finality. The appellants again filed the application, stating therein, that they have liquidated the amount in view of the incentive scheme of 2001. As regards the second incentive scheme, the plea of the respondent-Bank is that the case of the appellants does not Bill within the incentive scheme. In order to avail second incentive scheme, the appellants were required to pay the determined amount in two equal instalments within certain period, but the appellants failed to adhere to the said stipulations. The appellants have themselves placed on record letter dated 4-1-2003, written by the respondent-Bank, which is the complete answer to the contention raised by the learned counsel for the appellants. It appears appropriate to reproduce the contents of the said letter, which reads as under: "Firstly, you have incorrectly mentioned that you availed the facility of Rs.20,000 while you had taken the overdraft facility up to Rs.40,000, secondly your case does not fall within the incentive scheme, announced by the bank. We had conveyed to you in writing for availing the concession under the incentive scheme. In our letter dated 31-10-1998, we had called upon you to make the payment of Rs.76,623 in two equal instalments, 50% of this amount up to 31-12-1998 and remaining 50% up to 31-3-1999 but despite receipt, you had failed to avail this concession and at this stage you cannot claim this concession, the copy of the publication in daily Jang dated 5-2-2001 appended along with your letter is not applicable in your case as the amount already paid cannot be considered for any subsequent incentive. You are requested to make the payment of the balance amount of Rs.73,758 failing the matter is pending in the Banking Court Lahore and we are requesting for recovery of the decretal amount through sale of your property."

4. In the above perspective, we have examined the impugned judgment and find that the learned Banking Court, while rendering the same, did not commit any legal errors and we have no reasons to unsettle the impugned judgment, therefore, the same is maintained.

5. As regards the judgments, relied upon by the learned counsel for the appellants, the same are not applicable in the case in hand and, therefore, are of no avail to the appellants.

6. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed with no order as to costs. S.A.K./R-124/L?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.