2015 PLP 437 (CLD)

AQEEL AHMED ABBASI, J.

Through instant appeal, the appellant has impugned the order dated 9-12-2013 passed by the Banking Court-I at Karachi in Suit No. 260 of 1999 (Execution Application No.65 of 2008) whereby the application filed by the applicant/bidder for the refund of the amount Rs. 9.825 million in terms of proclamation of sale and an amount of Rs. 658,000 being the differential amount against the loss caused to the Government vide allotment of subject land i.e. Commercial Plot No. 117 Phase-II admeasuring 2 Acres of K-28 Trans Lyari Hawks Bay Road, Karachi was dismissed.

2. It has been contended by the learned counsel for the appellant that the land which was put to auction on 16-1-2010 by the respondents was already subject matter of the proceedings pending before the Hon'ble Supreme Court in Civil Petitions Nos.446-K and 44-K of 2008 wherein, status quo order was passed on 4-12-2008. It has been further contended that the subject land also stood cancelled under Ordinance No.III/2001, hence, the same was not otherwise available for auction, whereas, the respondents did not disclose such facts at the time of auction. Per learned counsel, the differential bid amount was paid by the appellant in view of the understanding given by the respondent that the sale certificate will be issued and the land will be resumed on payment of differential amount, however, needful has not been clone so far inspite of considerable lapse of time, whereas, the dispute is still sub judice and pending before the Hon'ble Supreme Court in the aforesaid Civil Petitions, and the amount deposited by appellant has stuck-up. It has been prayed that the subject amount may be directed to be returned to the appellant, who will not claim any right or entitlement over the subject land at any stage of the proceedings.

3. While confronted with such contention as made by the counsel for the appellant, counsel for the respondent could not controvert the said factual and legal position, however, stated that the amount was deposited voluntarily by the appellant, hence, the same may not be refunded to appellant. 4 We have heard both the learned counsel for the parties, perused the record and the impugned order passed by the Banking Court in the instant case. In the first instance, when the learned Banking Court acquired the knowledge about the resumption of the subject land under Ordinance No. III of 2011 by the Government and the status quo granted by the Hon'ble Supreme Court in aforesaid two Civil Petitions, the learned Banking Court was required to cancel the entire auction proceedings in respect of subject land which was not even available for auction in view of resumption by the Government of Sindh, as well as, in view of pendency of proceedings before the Hon'ble Supreme Court wherein status quo order was operative. The amount deposited by the auction purchaser was required to be returned, which has not been done, on the contrary, through impugned order such request of the appellant has been declined.

5. Accordingly, we set aside the impugned order, and direct the Nazir of Banking Court to return the entire bid amount deposited by the appellant in respect of subject land to the appellant, after proper verification and identification. Appeal stands allowed in the above terms. MH/S-99/Sindh Order accordingly.