2019 PLP 741 (CLD)

This regular first appeal is filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) challenging order dated 29.09.2015 passed by the banking court.

2. Brief facts of the case are that the respondent bank after obtaining the decree set in motion the execution process for sale of the mortgage property belonging to the appellant. The auction was held on 12.03.2015 whereafter an objection application was filed by the appellant which was dismissed by the banking court through the order challenged in this appeal.

3. Today, Syed Sajid Ali Bukhari Advocate has entered appearance and sought time to file his power of attorney on behalf of the appellant. We are not inclined to grant this request as the learned counsel has no document in his possession to demonstrate that he has been engaged by the appellant. The original counsel namely Ms. Sadia Malik Advocate has not entered appearance in this case for quite some time and is also not present today. Be that as it may, we propose to decide this case after going through the record.

4. In the grounds of appeal, it was alleged that the sale of the property was carried out without following the process provided for in Order XXI, Rule 66 of the Code of Civil Procedure, 1908 (C.P.C.). It was furthermore stated that in the grounds of appeal that the sale was not widely published and that the auction was not conducted at the site.

5. It is apparent from the record that appellant being the judgment debtor was served notice under Order XXI, Rule 66, C.P.C. by the banking court and in pursuance thereof counsel representing the appellant filed his power of attorney. The appellant thereafter also filed an objection application on the evaluation report in regard to the reserve price mentioned therein. The banking court on 24.02.2014 by consent of the parties directed Messrs Material and Design, evaluators to carry out the evaluation and furthermore directed the appellant to deposit the fee of the evaluator. The appellant in defiance of the order of the banking court did not deposit the fee of the evaluator despite taking ten (10) adjournments. The banking court, therefore, through order dated 19.09.2014 fixed the reserve price of the property and appointed a court auctioneer to conduct the auction. This order by the banking court was never challenged by the appellant and, therefore, attained finality. Pursuant to the said order, the court auctioneer appointed by the banking court conducted the auction in which respondent No.2 was declared the highest bidder who deposited an amount of Rs.8,515,000/- which was more than the reserve price. In the circumstances, the appellant cannot be allowed to agitate the non-fulfilment of the requirements ordained by Order XXI, Rule 66, C.P.C.

6. The court auctioneer filed the auction report on 25.03.2015 before the banking court whereafter the appellant filed the objection application on 08.04.2015 which was not accompanied by the statutory deposit as contemplated by Order XXI, Rule 90, C.P.C.

7. In regard to the default of the judgment debtor in making the statutory deposit, the Hon'ble Supreme Court in the case of Messrs Nice 'N' Easy (Pvt.) Limited and others v. Allied Bank of Pakistan 2014 SCMR 1662, held as under: The appellants have filed objection petition apparently on the ground that auction proceedings were irregular and the Banking Court has failed to follow the procedure provided under Order XXI, C.P.C. The appellants themselves moved the banking Court under section 19(7) of the Ordinance and have not made an application under Order XXI, Rule 89 or 90, C.P.C. Even if the objection petition of the appellants is treated as an application under Order XXI, Rule 89 or 90, C.P.C., then the said Rules mandate that the objector should deposit the amounts mentioned therein along with the application. In absence of the deposit, as mandated by the Rules, the application and or objections cannot be entertained by a Banking Court. In the case in hand, the appellants have not deposited any of the amounts required under the aforesaid Rules, therefore, the objections were right rejected by the Banking Court.

8. The law relating to objection applications on the court auctions has recently been exhaustively reviewed by the Hon'ble Supreme Court in a judgment reported as Zakaria Ghani and others v. Muhammad Ikhlaq Memon and others PLD 2016 SC 229 wherein it was clearly held that the application filed by a judgment debtor under Order XXI, Rule 90, C.P.C. shall not be entertained until and unless an amount equal to 20% of the sum realized at the sale is furnished.

9. In view of the ratio of the aforementioned judgments and the fact that the appellant did not make the mandatory deposit of 20% of the sum realized at the sale, we are not inclined to interfere in the order (impugned herein) passed by the banking court. This appeal being devoid of any merit is accordingly dismissed. ZC/S-10/L Appeal dismissed.