Loss of courier receipts

Borrower assailed sale of mortgage property on the plea that notices under S.15(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, were not issued

Validity

Bank should have been more vigilant in retaining receipt of such courier company through which second disputed notice was sent, more particularly when assumption of powers under S.15(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001 depended on fulfilment of S.15(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001

Loss of such receipt could only yield to establish a presumption which was contrary to the presumption drawn by Single Judge of High Court

Bank did not present postal receipt or courier receipt to enable the court to apply Art. 129 of Qanun-e-Shahadat, 1984 to presume that such letter was posted

Presumption drawn on assumption and hypothesis and that too in respect of special law i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001, the provisions of which were mandatory and any departure from such mode would render all subsequent event nullity

Prima facie question of second and third notices were not established at least at interlocutory stage, therefore, powers under S.15(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, were not passed on to bank and hence not available to the bank to proceed in terms thereof

Division Bench of High Court in Special High Court Appeal set aside order passed by the Single Judge and auction of property under consideration was uncalled for

Appeal was allowed.