2007 PLP 483 (CLD)

MAULVI ANWARUL FIAQ, J.

The appellants feel aggrieved of the judgment dated 8-11-2006 passed by a learned Judge, Banking Court, Sargodha, whereby plaint in a suit filed by them against the respondents was rejected.

2. Learned counsel for the appellants contends that the learned Judge, Banking Court, has misread the pleadings and the material on record while passing the impugned order. The respondent No.11 states that the appellants admittedly, not being customers of the respondent. No.10 Bank could not have maintained a suit in terms of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

3. We have gone through the trial Court records. According to the contents of the plaint presented by the appellants in the Banking Court on 7-1 1-2006, they entered into an agreement of sale with the persons mentioned in para-1 of the plaint on 23-8-1997, whereby they agreed to sell the land mentioned therein for a consideration of Rs.5,65,

000. They paid Rs.2,65,000 at the time of execution of the agreement and the balance through cheques detailed in Para-1 of the plaint. The said persons refused to perform their part of the contract whereupon they filed a suit for specific performance on 26-2-2000. In the said suit a temporary injunction was issued restraining the defendants from alienating the property. The suit was ultimately decreed on 14-2-2006. When the decree was sought to-be implemented in the revenue records, they came to know that the LRs of Muhammad Farooq, during the pendency of the said suit, transferred 161 Square Feet out of the 200 Square Feet in favour of Mst: Parveen Akhtar defendant No.2 vide registered document dated 23-4-2003. The said lady mortgaged the property so purchased with the respondent No. 10-Bank vide registered document dated 27-11-2004 and obtained loan. The execution petition was accordingly amended and all said persons were made parties. At this stage, the respondent No.10 affixed sale proclamation. According to them, they are bona fide purchasers and the said proceedings under section 15 of the said Ordinance are illegal and void.

4. The learned Judge, Banking Court, has rejected the plaint by making the following observations:-- "After going through the arguments advanced by the learned counsel for the plaintiffs as well as record I am of the view that the plaint does not disclose any cause of action for the reason that the property which is going to be auctioned bears Shop No.108 whereas the decree which has been obtained is in respect of Shops Nos.110 and

111. The area of the shop to be auctioned is also different from the area of shops which have been decreed in favour of the plaintiffs. Needless to say that Khewat number and Khatuni number of the shops are also different."

5. We find that according to the copy of Register Haqdaran Zamin for the year 1994-95 the persons who entered into an agreement to sell with the appellants are recorded owners of Khasras Nos.687/111 and 110 which is the subject matter of the said agreement. On the basis of the said alienation made pendente lite Parveen Akhtar has been recorded the owner of the same Khasra number to the extent of 161 Square Feet in Register Haqdaran Zamin for the year 2002-2003 whereas Shop No.108 is the recorded ownership of one Muhammad Siddique. We have also examined the proclamation and we find that although the shop number is mentioned as 106 but the Khasra numbers mentioned are the same which stand decreed in favour of the appellants. The said proclamation has been issued by the respondent-Bank in terms of section 15 of the said Ordinance. We do agree with the Court auctioneer that the appellants being not customers of the said Banking company (respondent No.10) the present suit would not be maintainable. However, the appellants have all the rights to file objections with the learned Judge, Banking Court, in terms of section 15 read with section 19 of the said Ordinance. This R.F.A. accordingly is disposed of with a direction that the appellants to immediately file objections before the learned Judge, Banking Court, Sargodha, against the said proposed sale and, if such objections are filed, the same shall be decided by the learned Judge Banking Court, Sargodha, after hearing all concerned and in accordance with law. No orders as to costs.

6. A copy of this judgment be immediately remitted to the said learned Judge. S.A.K./M-754/L Order accordingly.