2004 PLP 1126 (CLD)

"The petitioner is ready to satisfy the decree alongwith 5% of sale amount." The learned counsel of the petitioner today requests adjournment to secure fresh instructions from the petitioner, which is declined, thereafter he argued the case.

3. Learned counsel of the respondents submits that the petitioner has floated the process of law as the respondent Bank secured the decree against the petitioner on 27‑9‑1994 and the decree‑holder did not secure any money from the petitioner in terms of the decree till date. He further submits that the petitioner has filed application before the Executing Court under Order XXI, rule 89, C.P.C. The petitioner failed to deposit the amount in terms of the Order XXI, rule 89, C.P.C. within a period of 30 days, which is condition precedent in view of Article 166 of the Limitation Act. He further submits that petitioner did not even deposit the 5% of sale amount within 30 days and also did not file any application for extension of time, therefore, impugned order is valid and the learned counsel of the petitioner failed to point out any infirmity or illegality in the impugned order.

4. Learned counsel of respondent No. 2 also adopted the arguments of the learned counsel of respondents Nos. 1 and 4.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. It is admitted fact that the petitioner has not deposited 5% of the sale amount within 30 days as required under the law, therefore, this fact brings the case in the area that the petitioner has not approached this Court with clean hands. It is settled principle of law that Constitutional jurisdiction is discretionary in character, I am not inclined to exercise my discretion in favour of the petitioner on account of his conduct before this Court as well as before the Banking Court as the law laid down by the Honourable Supreme Court in the following judgments:‑‑ Nawab Syed Raunaq Ali's case PLD 1973 SC

236. Haji Saif Ullah's case PLD 1989 SC

166. Rana Muhammad Arshad's case 1998 SCMR 1462. It is condition precedent to entertain the application of the petitioner subject to payment of 5% of sale amount, which was not deposited by the petitioner; therefore, the Banking Court was justified to dismiss the application of the petitioner. In arriving to this conclusion, I am fortified by the law laid down by the superior Courts in the following judgments:‑‑ National Bank of Pakistan's case 1990 MLD

258. Rao Muhammad Suleman's case 1987 CLC 1338.

7. In view of what has been discussed above, I do not find any infirmity or illegality in the impugned order of the Banking Court. However, in the interest of justice and fairplay, the decree was passed against the petitioner amounting to Rs.15,31,128 the property in‑question was auctioned amounting to Rs.7,01,

000. In this view of the matter, the petitioner is directed to satisfy the decree within one month alongwith 5% of sale amount. In case the petitioner fails to satisfy the decree in letter and spirit within one month from today then the Executing Court shall proceed in the matter in accordance with law and the respondents are at liberty to get the matter be finalized before the Executing Court in accordance with law. It is pertinent to mention here that respondent‑Bank has sanctioned the loan facility in favour of the petitioner after securing mortgage of the property of the petitioner on 13‑6‑1990 amounting to Rs.14,40,

000. The property, which was mortgaged by the Bank, was auctioned in the year, 2003 for consideration of Rs.7,01,

000. This brings the case in the area that the Bank officials‑officers have sanctioned the loan facility to the petitioner. The Bank officials‑officers are also responsible for the destruction of the Financial Institutions, as the officials‑officers of the Bank shall sanction the loan without determining the price and value of the property mortgaged at the time of sanctioning of the loan facility to the petitioner. In this view of the matter, let this order be sent to the President of the Rank, who is directed to constitute a high powered committee to probe into the matter, who has sanctioned the loan in such a manner that the mortgaged property was more than Rs.12,00,000 in the year 1990 and sold in the year 2003 for Rs.7,01,

000. In case the committee finds any official‑officer of the Bank responsible for any misdeed or mischief then the competent authority is directed to proceed against him under Efficiency and Discipline Rules. He is directed to complete this process within four months. Office is directed to send a copy of this order to the President of the Bank as well as Finance Secretary for information, who is also directed to look into the matter that what is happening in the financial institutions that financial institutions have been ruined on account of the Bank officials‑officers. He is directed to formulate a policy in future so that the Bank Officers‑officials shall sanction the loan in accordance with law keeping in view the ground realities. They are further directed to submit report to the Deputy Registrar Judicial of this Court within the stipulated period. Office is also directed to provide a copy of this order to Mr. Muhammad Hanif Khatana, Addl. Advocate -General, and Dr. Danishwar Malik, Deputy Attorney‑General for Pakistan, who are directed to send the same to the President of the Bank as well as to the Finance Secretary, Government of Pakistan, for necessary action and compliance. With these observations the writ petition is disposed of. M.A.W./S‑80/L Order accordingly.