2020 PLP 1344 (CLC)

MUHAMMAD FAISAL KAMAL ALAM, J.

(1-2) Arguments heard on C.M.A. No.59 of 2018 (under section 151 of C.P.C.), preferred by learned counsel for Judgment Debtor No.1 and C.M.A. No.314 of 2018 (under Section 151 of C.P.C), filed by learned counsel for Auction Purchaser. 3). Official Assignee's Reference No.10 of 2018 is taken on record subject to any objections. i). Through the listed C.M.A. No.59 of 2018 the learned counsel for Judgment Debtor No. 1 has raised objection that the sale in respect of the property-C-6, situated at Fish Harbour. West Wharf Road, Karachi admeasuring about 1629.7 Square Yards. with plant machinery and other movables with a double storey construction thereon has been made by the learned Official Assignee in violation of the earlier Court order as Rule 66 of Order XXI of C.P.C. It is further submitted that since the exercise to dispose of the property took place in the year 2017, therefore, even the reserved price as mentioned in the proclamation was far less than the market value. It is further stated that the Judgment Debtor No.1 can bring a better offer than the one given by the present Auction Purchaser (Al-Noor International). The other objection agitated by the learned counsel for the Judgment Debtor No.1 is that the Auction Purchaser has committed illegality when the bid of the above named Auction Purchaser was accepted, which was even less than the reserved price, that is, Rs.6,17,00,000/- (Rupees Six Crores Seventeen Lac only). ii). The above contention has been refuted by the learned counsel for the Auction Purchaser. He has referred to the order dated 15.03.2018 in which under the directions of the Court, the above mentioned bid amount was enhanced to Rs.8,06,10,380/- (Rupees Eight Crores Six Lac Ten Thousand Three Hundred Eighty Only), which admittedly was the reserved price. The learned counsel has further made a reference to the above order, to show that not only the bid was enhanced but the Auction Purchaser has agreed to take the entire property on 'as is where is basis' which includes payment of amount of Rs.62,76,912/- (Rupees Sixty Two Lac Seventy Six Thousand Nine Hundred Twelve Only) being the outstanding dues of Karachi Fisheries Harbour Authorities. He then referred to Official Assignee's Reference No.09 of 2018 in which it has been confirmed that the Auction Purchaser has made the balance payment as directed by this Court in its above order by paying an amount of Rs.46,200,000/- (Rupees Four Crores Sixty Two Lac Only) through a pay order as well as differential amount between the offer/bid price and the reserved price to the tune of Rs.18,910,380/- (Rupees One Crore Eighty Nine Lac Ten Thousand Three Hundred Eighty Only). It is further contended that the application of Judgment Debtor No.1 under consideration is not maintainable as the same was filed beyond thirty (30) days of the prescribed limitation period as mentioned in Article 166 of the Limitation Act, 1908. iii) Submissions heard and record perused. iv) On a query, the learned Official Assignee has referred to an order dated 21.09.2017 to answer that the terms and conditions as mentioned in the proclamation of sale dated 13.04.2016, which is appended with the Reference No.06 of 2016 were considered in the earlier orders and approved without any objection. The learned Official Assignee has further made a reference to the consent Decree and the subsequent order dated 08.07.2014 in which the execution was allowed without notice. v) In order to appreciate the rival contentions, I have first examined the advertisement / proclamation of sale as published in Dailies Jang and Dawn Karachi and Islamabad; respectively, in its issue of 20.10.2017. The Public Notice has clearly mentioned the reserved price as Rs.8,06,10,380/- (Rupees Eight Crores Six Lac Ten Thousand Three hundred Eighty Only) for the above property with number and title of the present Execution Application along with the necessary information, which is reproduced herein below for reference_ "(i) Separate offers be accompanied with 25% of the offered amount in shape of pay order in favour of "Official Assignee of Karachi" and copy of CNIC to reach the undersigned on 21.11.2017 at 1:30 P.M. which will he opened immediately upon receipt in presence of the parties who wish to be present, (ii) The undersigned may cancel the offers without assigning any reason or call bidders for negotiation and improvement of offers, (iii) All offers are subject to confirmation of High Court of Sindh, Karachi, (iv) Balance of the purchase price shall be deposited within 15 days from the date of acceptance of offer, failing which deposited money shall stand forfeited. (v) The highest / lowest bidder cannot withdraw his offer before acceptance of bid, (vi) All dues, taxes outstanding on the properties shall be paid by the purchaser. (vii) Inspection of properties on 07.11.2017 from 10:00 A.M. to 2:00 P.M. with written permission of Official Assignee. Further information may be obtained from the undersigned. Telephone No.021-99203129. (Dr. Chaudhry Wasim Iqbal) Official Assignee of Karachi Ist Floor, Old Annexe Buildings, High Court of Sindh, Karachi." vi) A sale can be set aside under Rule 90 of Order XXI of C.P.C., but there are two provisos to this provision, which must be complied with by the Objector, or in the present case, present Judgment Debtor. On a specific question, the learned counsel for judgment Debtor No.1 has stated that no amount as mentioned in the second proviso of Rule 90 has been deposited with the Official Assignee. Secondly, the main objection about non-compliance of Rule 66, in my considered view, is also not sustainable as the above public notice for sale contains the particulars which are to be mentioned in terms of Rule 66 of Order XXI of C.P.C. Thirdly, the order dated 15-3-2018 was never challenged by the present Judgment Debtor/Objector in which certain directions were given, which were admittedly complied with by the Auction Purchaser. vii) Learned counsel for the Judgment Debtor No.1 has relied upon an unreported decision of this Court handed down in the Execution Application No.84 of 2011 (Messrs NIB Bank Ltd. v. Appollo Textile Mills Ltd. and others), wherein, it is held, that if a sale proclamation is not in accordance with Rules 66 and Rules 84 and 85 of Order XXI, C.P.C. are not complied with, then an auction proceedings will be vitiated as the sale is illegal. This decision is distinguishable; because Rule 66 (as discussed above) has already been complied with, whereas regarding the reference to Rules 84 and 85 in the above decision, the Auction Purchaser has adhered to the same as well, because it is an undisputed position that the entire sale price has been deposited with the Official Assignee. viii) On the other hand, the learned counsel for the Auction Purchaser has relied upon a judgment of Hon'ble Supreme Court reported in PLD 2016 Supreme Court page 229 (Zakaria Ghani and 4 others v. Muhammad Ikhlaq Memon and 8 others), wherein, the Hon'ble apex Court, inter alia has interpreted the above provision of Rule 90 as mandatory. ix) Conversely, the last auction proceedings was vitiated on the above principle as the earlier bidder/purchaser could not pay the balance price, as mentioned in the order 21-9-2017. The present auction proceeding is third in a row, which clearly leads to the conclusion that the entire auction proceedings has been undertaken in a transparent and diligent manner by the office of the learned Official Assignee and none of the mandatory requisites are lacking in the entire proceeding. The rule laid down in the above cited case of Zakaria Ghani is fully applicable to the undisputed facts of present case, inter alia, as the Application under consideration of Judgment Debtor No.1 is also not maintainable under Rule 92 of Order XXI of C.P.C., as the Application is not filed by adhering to the mandatory requirement of Rule 90 about depositing of the amount. x) In view of the above, the objections filed by the learned counsel for Judgment Debtor No.1 and agitated through the listed application are meritless and the application (C.M.A. No.59 of 2018) is dismissed. xi) Similarly, in view of the above, the application C.M.A. No.314 of 2018, filed by learned counsel for Auction Purchaser stands disposed of. Similarly, Reference No.9 of 2018 is also disposed of. The sale of the above mentioned immovable property in favour of Auction Purchaser (Al-Noor International) is hereby confirmed. The Official Assignee to proceed further in the matter strictly in accordance with the Rules. MWA/B-9/Sindh Application dismissed.