2011 PLP 157 (CLD)

IQBAL HAMEED-UR-RAHMAN, J.

Judgment-debtors Nos. 1 to 5 have filed the instant application under Order XX1 Rule 22, C.P.C. and section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, against the consent decree dated 21-6-2002 amended vide order dated 7-12-2004 and 19-6-2006.

2. It is contended on behalf of the applicants that the instant execution petition of the decree-holder/bank is badly barred by time as under section 48 of C.P.C. the execution petition was required under the law to have been filed within six years from passing of the final decree whereas the instant execution petition has been filed on 14-10-2008; as such, the instant execution petition, is barred by limitation and the same merits to be dismissed.

3. Secondly, learned counsel for the applicants/objectors reverting to para 3 of the joint application under Order XXIII, Rule 3 read with section 151, C.P.C. contends that the consent modified decree dated 19-6-2006 clearly states that the additional facility granted shall not form part of the said application or that of the consent decree dated 21-6-2002; therefore, the same could not be adjusted towards the second modified consent decree dated 19-6-2006. The decree-holder/ bank had unjustly adjusted the same towards the decretal amount.

4. Learned counsel for the applicants thirdly contends that the agreement/compromise had been made with only defendant No.1 which will make the payment in terms and conditions of the settlement; as such, the other defendants/guarantors were not liable to make any payment. In view of the same they are released from their personal guarantees executed by them. Even otherwise, the personal guarantees executed by the other defendants are not placed on the file. Moreover, the previous liabilities of TF-I and TF-II cannot through this compromise/ settlement be adjusted in the consent decree. The said liability already stands discharged and cannot be adjusted in the instant consent decree. The same has been wrongly adjusted in the statement of account filed with the execution petition. In the above perspective the suit amount already stands adjusted and the liabilities of the defendants already stands repaid; as such, the instant execution petition cannot proceed with regard to the liabilities which have been created after the passing of the consent decrees; therefore, by accepting this petition the execution petition be dismissed both on account of limitation as well as on merits.

5. On the other hand, the learned counsel for the decree -holder/bank has vehemently controverted the stances of the applicants/judgment-debtors contending that the first joint application under Order XXIII, Rules 1 and 2 read with section 151, C.P.C. had been submitted by all the parties, defendants/ judgment-debtors signing the same along with their counsel as well as subsequent two applications also contained the signatures of all the judgment-debtors as well as the decree -holder/bank and their counsel. As far as the limitation is concerned, it is settled principle of law that the subsequent consent decree and in the instant case the consent decree dated 19-6-2006 is to be taken into consideration and in view of the same the instant execution petition is within time. The judgment-debtors/objectors have admitted their liabilities throughout, firstly, by the consent decree dated 21-6-2002, thereafter, through the subsequent consent decree vide order dated 7-12-2004 and 19-6-2006 respectively before this Court by submitting applications under Order XIII, Rules 1 and 2, C.P.C. with their signatures admitting their outstanding liabilities. The decree-holder/bank afforded all concessions in spite of their default in the payment of their outstanding liabilities, afforded repeated opportunities to the defendants/ judgment-debtors but they had no intention of making any payment. The matter has been lingering on from 2002, public money is involved and now in the year 2010, the recovery is yet to be effected. The decree-holder/bank has made hectic efforts for the recovery of the amount they even were constrained to file criminal complaints against the judgment-debtors and in order to avoid the same the judgment-debtors sought further concessions, which were duly acceded by the decree-holder/ bank in order to recover the public money from the judgment-debtors but in spite of the repeated concessions on the part of the decree-holder/bank, no payment has been made by the judgment-debtors/objectors; no liability has been adjusted by them; they have not produced any proof of the payment either made before this Court or anywhere else. The execution petition is within time and the limitation is to run from the last consent decree acceded to by both the parties i.e. 1976-2006 which had been signed by all the guarantors/judgment-debtors as well. The guarantee once executed remains a continuing guarantee for the liabilities of the defendants. In spite of obtaining right-off and concessions the judgment-debtors have failed to make payment of their outstanding liabilities. The statement of account attached with the execution petition is the true and accurate liability of the judgment-debtors rather the same was in the year 2008 when the instant execution petition had been filed on 14-10-2008. Subsequently, their up to-date liabilities have also arisen. There is no substance in the instant objection petition, the same merits dismissal.

6. Arguments of the parties heard, consent decrees fully taken into consideration.

7. The contentions raised by the learned counsel for the applicants/objectors do not find support from the same. The applicants firstly entered into a compromise decree dated 21-6-2002 by submitting a joint application; Thereafter, the judgments-debtors/objectors had filed subsequent application accepting the terms and conditions of the same. These applications had also been signed by all the applicants/ judgment-debtors accepting the said terms and conditions of the compromise/settlement on the basis of which the subsequent consent decrees have been passed on 7-12-2004 and 19-6-2006: On the default of the same the decree-holder/ bank has filed the instant execution petition although the learned counsel for the applicants had tried to invoke certain points to show that the instant execution petition has not been filed as per the consent decree dated 19-6-2006, as the previous liabilities with regard to TF-I and TF-II had been adjusted in the execution petition which were not according to the terms and conditions of the compromised consent decree. A perusal of the terms and conditions, (1) clearly states qua Term Finance-I Rs.281.930 Million (Merging of Existing TF-I & II). In view of the same, the said objection has no substance. Further the joint applications were duly submitted by the applicants/judgment debtors. They are party to the consent decrees being/passed by the Court. Moreover, their personal guarantees being continuing guarantees the applicants are liable to pay the outstanding liabilities.

8. As far as the contention of the learned counsel for the applicants with regard to the limitation is concerned, it will suffice to say that on the promulgation of the Financial Institutions (Recovery of Finances) Ordinance, 2001 it is envisaged under section 19 that on the passing of the judgment and decree by a Banking Court the same shall automatically be converted into an execution petition; as such, the limitation would run in the instant case from the passing of the c subsequent final consent decree dated 19-6-2006; therefore, the claim of the applicants/judgments-debtors has no force as the final consent decree had been passed on 19-6-2006 and the execution petition had been filed on 14-10-2008; therefore, the instant execution petition would be deemed to have been filed within limitation. Resultantly, the application filed by the applicants/judgment-debtors has no merits, the same is dismissed.

9. Now to come up for further proceedings on 23-11-2010. A.R.K./N-98/L Application dismissed.