2004 PLP 215 (CLD)

(d) Interpretation of statutes‑‑‑ ‑‑‑‑Construction which tends to advance; promote and serve cause of justice would be preferred. Rashdeen Nawaz for Petitioner. Khalid Mehmood Ansari for Respondent No.

1. Tariq Masood and Azmat Saeed (on Court's call). Date of hearing: 7th November, 2003. A suit for recovery of Rs.15,040,725.11 instituted by the petitioner‑Bank against Hakim Textile Mills Limited and others was decreed on 12‑12‑1999. Property No.274, Block‑Z, Phase No.3 measuring 2 Kanals was statedly mortgaged with the petitioner‑Bank which in pursuance of the above mentioned decree was sold by the Bank through auction in view of the highest bid of respondent No.2 in his favour. Such a sale according to the petitioner was permissible under section 19(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 without the intervention of the Court. The Defence Housing Authority who is respondent No. 1 to this petition was then approached for No Demand Certificate by the Bank and respondent No.2 requested for transfer in his name. Two letters were issued by respondent No. 1 in this regard to the petitioner, first dated 14‑7‑2003 asking the petitioner to "provide original certified copy of Court order and sale certificate issued by the Court in favour of auction‑purchaser' and second dated 2‑9‑2003 demanding from the petitioner:‑‑ "(a) Sale‑deed executed by Bank in favour of the purchaser as per subsection 7 of section 15 which has been made applicable to section 19 proceedings. (b) Express order by the Court to transfer the property in favour of purchaser. (c) Also submit affidavits (by Bank and purchaser) to the effect that:‑‑ (1) No appeal against the judgment and decree is pending before any Court and no stay of any kind has been granted by appellate Court. (2) And that no appeal/objection petition challenging the sale proceedings has been filed and there is no stay order granted with respect to subject plot." This petition has been filed by the decree‑holder Bank "to declare the act of respondent No. 1 in not issuing NDC and effecting transfer in the name of respondent No.2 on payment of sale consideration to be illegal, unlawful, bad in the eye of law and of no legal effect."

2. The learned counsel for the parties have been heard whereas Mr. Azmat Saeed Advocate was called upon to assist the Court in view of intricacies of the controversy in the case.

3. The learned counsel for the petitioner has with reference to section 19(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, contended that since it was a sale made by the petitioner‑Bank without intervention of Court, no certification from the bank or other formality was required to be completed and the stance of respondent No. 1 in demanding Court certificate/other documents was unwarranted. Somewhat similar stance has been taken by the learned counsel for respondent No.2, (the auction purchaser), whose thrust of the argument is that there was no requirement of execution/registration of sale‑deed under the rules, by‑laws and regulation of the Authority. Reference has been made by him to Raja Riaz Ahmad Khan v. United Bank Limited and 7 others 2003 CLD 552; Messrs Chawla International v. Habib Bank Limited and others 2003 CLD 956; Messrs Ali Paper and Board Industries Ltd. and another v. Bankers Equity Ltd. and 12 others 2003 CLD 1178 and Board of Trustees through Chairman/Additional Secretary, Government of Pakistan, Islamabad and another v. Jamila Akhtar and another 2003 SCMR 1174; whereas the learned counsel for the Defence Housing Authority respondent No. 1 contends that the Authority can only proceed to allow transfers when the legal formalities are fulfilled. In essence the position taken by Mr. Azmat Saeed, Advocate, is that despite power having been conferred upon the Financial Institutions under section 19(3) of the Ordinance, to sell the property without intervention of the Court provisions of subsections (5), (6), (7), (8), (9), (10), (11) and (12) of section 15 of the Ordinance were made applicable to such sales by virtue of subsection (5) of section 19 of the Ordinance. According, to him there had to be some check, constraint and supervision on the exercise of such a vast power in order to ward off any misuse of the same. His stance is that the Court which passed the decree continues to have seizin over the matter. The learned counsel has referred to Messrs Nizamuddin and Company and 4 others v. The Bank of Khyber 2003 CLD 914.

4. The respective contentions of the learned counsel have been considered. The perusal of the precedents cited by them would show that none of those judgments has direct application to the controversy that has arisen in the present case. The perusal of provisions of subsection (1) of section 19 of the Ordinance, makes it clear that upon pronouncement of judgment and decree by the Banking Court, the suit itself stands converted into execution proceedings and on expiry of period of 30 days, the Court is expected to proceed with the execution of decree. This period of 30 days obviously has been made available to the judgment‑debtor to avail the remedy of appeal under section 22 of the Ordinance. Subsection (2) of section 19 of the Ordinance, lays down the procedure to be followed by the Banking Court to execute the decree i.e. "in accordance with the provisions of Code of Civil Procedure or any other law for the time being in force or any such manner as the Banking Court may at the request of the decree‑holder consider appropriate, including recovery as arrears of land revenue." The key provision, however, in the context is subsection (3) of section 19 which reads as follows:‑‑ Section 19(3). "In cases of mortgaged, pledged or hypothecated property, the financial institution may sell or cause the same to be sold with or without the intervention of the Banking Court either by public auction or by inviting sealed tenders and appropriate the proceeds towards total or partial satisfaction of the decree. The decree passed by a Banking Court shall constitute and confer sufficient power and authority for the financial institution to sell or cause the sale of the mortgaged, pledged or hyothecated property together with transfer of marketable title and no further order of the Banking Court shall be required for this purpose."

5. Subsection (5) of section 19 by reference incorporates the provisions of subsections (a), (6), (7), (8), (9), (10), (11) & (12) of section 15 and make them applicable to sales of mortgaged, pledged or hypothecated properties by a Financial Institution. Reference to provisions of subsection (7) of section 15 makes it abundantly clear that execution arid registration of sale‑deed is envisaged by the law, whereas legal consequences of such execution and registration are mentioned in subsection (8) and consequently all rights in such property vest in the purchaser free from all encumberances. Needless to emphasize that the necessary result of adoption of a certain provision is to read the same into the adopting provision and consider as if the same has been written down or penned in the later provision. Keeping this principle in view, it may be observed that steps and formalities mentioned in section 15 had yet not been completed when the petitioner and respondent No.2 approached respondent No.1 for issuance of certificate and urged for effecting transfer. Thus, as the sale was yet to be perfected and was still inchoate, respondent No.1 was prematurely approached to perform his function. It may be observed that in the series of steps and formalities to be completed under section 15, after the execution and registration of the sale‑deed, the Financial institution concerned was required to file accounts of the sale proceeds in the Banking Court within 30 days of sale of the mortgaged property in terms of subsection (10) of section

15. It was, also visualized by the legislature that disputes relating to sale of mortgaged property may crop up for which purpose the forum specified was the Banking Court as per subsection (11) of section 15, it may be observed that in case of any possible conflict and repugnancy i.e. section 19(3) and section 15 as adopted by section 19(5) the later in sequential order will prevail. It shows that despite conferment of power upon the Financial Institution (under section 19(3) of the Ordinance) the Court which passed the decree had continued seizin over the matter. This was not only necessary to obviate and ward off any misuse or arbitrary exercise of power but also to safeguard the interest of judgment‑debtor/owner of the mortgaged property as possibility of sale of a mortgaged property at whimsical or throw away price could not be ruled out. It is well‑settled that construction which tends to advance, promote and serve the cause of justice is to be preferred. In such a context some pertinent observations made by the Apex Court in Agricultural Development Bank of Pakistan and another v. Abid Akhtar and others 2003 SCMR 1547 are of great significance. It was observed that:‑‑ "

6. There appears to be much substance in the submission of the learned counsel for the respondent that the petitioner‑Bank cannot be equated with a proper judicial forum for determination of the amount due against a borrower notwithstanding the fact that summary power of recovery of amount due has been conferred on it by law with a view to obviate cumbersome procedure of execution of decree as contained in Order XXI of the Code of Civil Procedure and the Banking Laws. The submission is not only supported by the earlier judgment of this Court but also by precedents reported as ARK Ocean Lines Ltd. v. Director of Industries and Mineral Development PLD 1976 Karachi 610); Hussain Ali v. Government of Pakistan (1989 MLD 4721), Grain System (Pvt.) Ltd. v. ADBP 1993 MLD 1031; Abdul Karm v. Province of Sindh 2001 MLD 69 and Raj Kumar v. National Bank of Pakistan 1994 CLC 206.

7. Ratio decidendi of the precedent cases clearly appears to be that in the event of substantial dispute between the parties, the procedure of recovery of amount by way of land revenue arrears would be available only where the amount claimed was found due, ascertained and determined by a competent judicial forum. We are in no manner of doubt that this unbridled power cannot be said to be available with the petitioner‑Bank in the peculiar facts and circumstances of the case, in which the original borrower has died while his successor‑in -interest has seriously disputed the liability giving authenticated facts and figures of having made payment as stated above. In the absence of any proper judicial determination as to the amount due by a proper forum created under the law, we do not find any legal flaw with the view taken by the High Court." Though that case arose in somewhat different context, yet the principle stated therein being based upon fairness, reasonableness and justice, is appropriately attracted. Even the legislature while conferring such vast power as is claimed by virtue of section 19(3) of the Ordinance was not oblivious of such a situation that is why formalities provided by section 15 were made applicable to such a sale. It was with a view to keep check on exercise of such unbridled and arbitrary power, that even after the sale, the Banking Court was empowered to examine the accounts of sale proceeds and to decide any dispute relating to sale (subsection (11) of section 15). Thus, harmonious reading and construction of adopted provisions of sections 15 and 19 of the Ordinance would lead to the conclusion that the role of Banking Court in the matter was not wholly ruled out. The position in the instant case, however, is that neither the execution and registration of the sale‑deed has yet taken place nor the transaction was complete or its accounts were submitted before the Court when the petitioner and respondent No.2 approached respondent No. 1 for necessary certification and transfer. It was in this context and circumstances that the Authority was justified to call upon the petitioner to complete legal formalities. In such a context, it cannot be held that authority acted illegally. In this view of the matter, writ as prayed for, cannot be granted, which is dismissed accordingly. At this juncture, I would like to appreciate the valuable assistance rendered by Mr. Azmat Saeed, Advocate and the learned counsel for the parties. No order as to costs. S.A.K./U‑68/L Petition dismissed.