2006 PLP 1467 (CLD)

Present appeal, under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against order dated 8-11-2005, whereby the learned Banking Court refused to confirm the sale, qua the auctioned property, favouring the appellant.

2. Facts necessary for the decision of the present appeal are that during the execution proceedings, mortgaged property was auctioned, on 2-11-2005, by the Court Auctioneer under the supervision of the learned executing Court and the appellant, being the highest bidder of Rs.21,00,000, was declared successful. The appellant, reportedly, deposited a sum of Rs.4,00,000 with the Court auctioneer, on 8-11-2004, however, the rest of 3/4th of the sale price was statedly paid within 9 days from the date of auction. Pursuant thereto, the Court auctioneer submitted report to the learned executing Court along with the photocopy of payment order of Rs.4,00,000 and a cheque of Rs.2,00,000, on 8-11-2004. The bank did not file any objections to the auction and the report of the Court auctioneer. The appellant claimed before the learned executing Court that his bid be accepted and since he has deposited the total auction price, therefore, sale in his favour be confirmed. Although, as noted above, no written objections were filed by the respondent-Bank, yet at the time of hearing the application for confirmation of sale, it was stated that the bank was not aware about the date of auction. The learned Judge Banking Court, repelled the objection of the Bank and simultaneously, after finding that 25% of the auction price was not deposited by the successful bidder on the date of auction, declined to confirm the sale in favour of the appellant, vide consolidated impugned order dated 8-11-2005, hence the present appeal.

3. Learned counsel for the appellant states that the appellant was declared highest bidder; he paid 25% of the sale price on the same day, and the balance 3/4th of sale price was paid within 9 days, therefore, the learned Banking court erroneously refused to confirm the sale in favour of the appellant. Conversely, the learned counsel for the respondent states that although the bid of the appellant was highest, yet as he failed to deposit initial 25% of the bid amount on the same day, as required under Order XXI, rule 84, C.P.C., therefore, he was not entitled for confirmation of sale.

4. We have heard, the learned counsel and examined the available record. Admittedly, the auction was held on 2-11-2004, and the appellant did not deposit 1/4th of sale price on the same day. Order XXI, Rule 84, C.P.C. prescribes that the person declared to be the purchaser shall pay immediately a deposit of 25% on the amount of his purchase money to the officer conducting the sale and in default of such deposit, the property shall forthwith be re-sold. It flows therefrom that deposit of 25% had to be made immediately after a person has been declared as highest bidder. The payment made on 8-11-2004 cannot be considered and taken to be immediate payment, as envisaged under the aforenoted provision of law. It may be noted that the said provision of law is mandatory, as the penal consequence of its non-compliance has itself been provided under the provision of law, which states that if the purchaser commits default in immediate payment of 25% of the sale price, the property shall forthwith be resold. It has been held in Messrs S.P.R. L. Rehman Brothers and another v. Judge Banking Court No.II, Lahore and another 2000 MLD 1957 that in case of violation of deposit of auction money, as prescribed under the provision of rules 84 and 85 of Order XXI, C.P.C. by the auction purchaser, the property is liable to be resold.

5. Learned counsel for the appellant has laid much stress that the remaining 3/4th amount was paid within 15 days. The said contention does not in any way advance the case of the appellant, as the initial payment of 25% was not made within the period prescribed under Order XXI, rule 84, C.P.C. Even the learned executing Court has no power to extend the time for doing an act, which has been determined and fixed by law. Reference can be made to Messrs Maqi Chemicals Industries (Pvt.) Ltd. through Chief Executive and 3 others v. Habib Bank Ltd. through Manager and 2 others 2003 CLD 571.

6. In the above perspective, we have examined the impugned order and find that the same is in accordance with law and no interference is called for by this Court. Learned, counsel could not point out any grave legal infirmity in the impugned order so as to warrant the dislodging of the, impugned order, which is hereby maintained.

7. Upshot of the above discussion is that the present appeal is devoid of merits, hence stands dismissed. M.H./A-160/L Appeal dismissed.