2000 PLP 1417 (CLC)

Total Rs. 51,61,361 By deducting Rs. 39,60,000 Outstanding liability Rs.12,01,361.53 The total outstanding liability according to him is Rs.12,01,361.53 and calculated the aforesaid charges approximately Rs.2,00,000, thus, the total liability after counting all the amounts/charges payable by him comes to Rs.14,01,

361. The bank was not agreeing to his request; therefore, he sent many complaints to the State Bank whereby the State Bank directed the respondents to mitigate the grievance of the petitioner and arrange to settle the matter under the incentive scheme for loan defaulters if admissible vide letter, dated 1‑9‑1997. Bank vide letter, dated 30‑7‑1997 addressed to the petitioner agreed to settle the amount under the aforesaid scheme but demanded exorbitant amount and ultimately vide letter, dated 13‑8‑1997 bank totally declined to hear any request of the petitioner for settlement of his dues under this scheme whereafter the petitioner filed the instant petition wherein it is prayed that the bank be directed to Act strictly in accordance with the incentive scheme issued by the State Bank of Pakistan and receive Rs.14,01,361 (wrongly mentioned as 621) for final clearance with a further prayer that bank be directed to place Rs.39;60,000 alongwith mark‑up in the account of the petitioner‑company till settlement of the whole of the liability (Rs.39,60,000 + Rs.14,01,361.53) and till final decision bank be directed not to finalize the liability of the petitioner. The writ petition came up for hearing before the Court on 2‑9‑1997 and on application of the petitioner order for maintaining the status quo was passed.

3. The respondents were called upon to submit report and parawise comments. In reply to para.5 it is admitted that company disposed of 35 Kanals of land for Rs.39,60,000 which were deposited with the bank under the direction of the Court. The said sale proceed was applied towards the liquidation of the liabilities and as a consequence thereof both the small loans were fully adjusted and the balance amount of Rs.15,427.70 was credited to the third account namely cash credit account bringing down the liability. It is further submitted in reply to para.6 of the comments that the preliminary decree for Rs.85,82,918.40 was awarded on 15‑6‑1991 and the sale proceed of the mortgaged land was received by the respondent‑bank on 14‑9‑1991 therefore, on this basis it is pleaded that out of aforesaid three accounts after the preliminary decree, two liabilities of I.D.A. loan and small loan were completely adjusted and remaining amount was used for partial satisfaction of third account i.e. cash. credit facility which still remained unadjusted despite the credit of Rs.15,427.70 from said amount. The case of the bank is that after adjustment of Rs.39,60,000 the petitioner is still liable to pay the amount as claimed in their letter, dated 30‑6‑1997 whereas the petitioner claims that this amount was to be adjusted under the order of the Court and bank itself was not authorized to adjust it. No specific order for adjustment of this amount was passed either at the time of passing of preliminary decree or subsequently, therefore, it is still lying at the disposal of the Court for its adjustment. Petitioner is ergitled to seek its adjustment to avail the incentive scheme.

4. Learned counsel for the petitioner contends that the aforesaid amount was deposited under the order of the Court, dated 30‑6‑1990 when the suit for recovery was pending. Learned Banking Judge decreed the entire claim of the respondent on 15‑6‑1991 without adjusting Rs.39,60,000 deposited by the petitioner on 4‑5‑1991 in addition to Rs.7,78,000 which A stands incorporated in the bank record. Petitioner is entitled to adjustment of the aforesaid amounts to avail the incentive scheme. The adjustment of aforesaid amount by the bank itself is unwarranted.

5. Khawaja Muhammad Farooq learned counsel for the respondents, on the other hand, submits that the aforesaid amount was received by the bank on 14‑9‑1991 whereas the decree was passed on 15‑6‑1991, therefore, the bank has adjusted it against two small accounts and partially the third cash credited account. He further, submits that the correct figures were communicated within time but petitioner failed to avail the scheme, therefore, is not entitled to the relief at this stage.

6. Heard. Record perused. The pivotal question involved in the case is whether adjustment of Rs.39,60,000 made by the bank itself without order of Court is in accordance with law, if not, is it available for adjustment towards incentive scheme as claimed by petitioner. This amount was deposited under the order of the Court on 30‑6‑1990 and the bank issued receipt on 4‑5‑1991 which reads as under:‑‑ "National Bank of Pakistan, Main Branch, Civil Lines, Jhelum Dated 4‑5‑1991. Prime Glass Ltd., G.T. Road, Jhelum Subject: Receipt of Rs.39,60,000 by National Bank of Pakistan, Civil Lines Road, Jhelum, at the disposal of High Court, Lahore (Rawalpindi Bench). It is hereby confirmed that Prime Glass Ltd., Jhelum, has deposited in National Bank of Pakistan, Civil Lines Road Branch, Rs.39,60,000 (Rupees thirty‑nine lac sixty thousand) on account of sale of 35 Kanals land sold to WAPDA. This amount will be with the bank at the disposal of High Court, Lahore (Rawalpindi Bench) and will be drawn upon or adjusted only under orders of the High Court." Bank gave the undertaking while receiving the amount that it will be drawn upon or adjusted only under the orders of the High Court but strangely the bank itself in violation of undertaking has utilized the amount against two small accounts and part payment of it in the third account. High Court decreed the suit on 15‑6‑1991 whereas the amount had already been received by the bank on 4‑5‑1991 under the order of the Court, dated 30‑6‑1990 which reads as under:‑‑ "30‑6‑1990. Kh. Muhammad Farooq, Advocate for the Plaintiff. Syed Mumtaz Hussain Shah, Advocate for the Defendant. It is agreed between the parties that without prejudice to the claim of the plaintiff‑bank to the balance, the respondent shall deposit the sale proceed namely Rs.39,60,000 of the land measuring 35 Kanals out of the total mortgaged property with the plaintiff‑bank. " The contention of the learned counsel for the bank that the amount was received on 14‑9‑1991 after passing of the decree, dated 15‑6‑1991, therefore, it stood adjusted to satisfy the decree as claimed in para.6 of the comments is erroneous on the face of it. In fact the amount was already in Bank at disposal of the Court but no direction for its adjustment was given at the time of passing of the decree. Bank itself in its receipt has given undertaking that it will only be adjusted under the orders of the High Court. The High Court has not passed any order for its adjustment and execution of decree is stayed since 10‑5‑1992, therefore, this money is still lying unadjusted with Bank and petitioner is entitled to utilize it to avail incentive scheme. The letter of the bank, dated 30‑7‑1997 showing more liability of petitioner is, therefore, based on erroneous assumption of law and facts. The incentive scheme was operative till December, 1997 but petitioner's claim was declined by the bank in August, 1997 whereafter he was constrained to invoke Constitutional jurisdiction of this Court on 30‑8‑1997.

7. It was a preliminary decree, therefore, unexecutable. Moreover, the execution of the decree was stayed by this Court. The respondents could not themselves adjust the amount in execution of the decree which was deposited under the order of Court, without its intervention, since by virtue of sub‑rule (3) of Rule 2 of Order 21, C.P.C. a payment or adjustment which has not been certified or recorded in accordance with Rule 2 shall not be recognized by any Court executing the decree. Any such payment or adjustment not certified or recorded is no payment or adjustment in law as laid down in P. Narasaiah v. P. Rajoo Reddy 1990 MLD 431 (Andhra Pradesh (India)). The amount deposited by the petitioner is still at the disposal of the Court. Petitioner can validly utilize the said amount for settlement of account under the incentive scheme. The refusal of the respondents to adjust his aforesaid amount against principal amount is, therefore, unlawful.

8. This petition for aforesaid reasons is accepted and the respondents are directed to adjust Rs.39,60,000 towards ‑the principal amounts of all the three accounts of the petitioner plus 5 % interest of the principal amount and calculate his liability accordingly. Petitioner shall clear all the liabilities under incentive scheme after adjustment of aforesaid amount within four months (this period was available to the petitioner under the scheme when he C filed the writ, petition on 30‑8‑1997 and scheme could be availed till December, 1997). The petition is accepted in the terms indicated above with no order as to costs. H.B.T./P‑9/L Petition accepted.