Appellants/judgment debtors, through the filing of the present appeal under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 (hereinafter referred to as Act), have called in question order dated 14-11-2000, whereby the learned Judge Banking Court dismissed appellant's objection petition for non-deposit of 20% of the auction money.
2. Precisely stated the facts of the case are that pursuant to passing a decree for recovery of Rs.14,45,676 with costs and future mark-up, against the appellants, by the learned Judge Banking Court, Faisalabad, vide judgment and decree dated 15-9-1999, which attained finality, the decree- holder initiated execution proceedings. During the execution process, the questioned property was put to sale/auction and respondent No.2, being the highest bidder, was declared successful.
Thereupon, the appellants filed the objection petition, under Order XXI, rule 90, C.P.C., and on the pointation of the learned counsel for the appellants, the learned Executing Court directed the appellants to deposit a sum of Rs.2,60,000, being 20% of the auction money, on or before 13-11- 2000. The appellants failed to deposit the requisite amount as per the terms of the said order and, thus, the learned Executing Court dismissed their objection petition; sale/auction favouring the highest bidder was confirmed and sale certificate was ordered to be issued in his faovour, vide composite impugned order dated 14-11-2000, hence the present appeal.
3. Learned counsel for the appellants has contended that despite the request of the learned counsel for extension of time for deposit of a sum of Rs.2,60,000, the same was illegally declined by the learned Executing Court. He has further submitted that the sale was collusive between the auction purchaser and the Bank and that was the reason why no objection petition was filed by the decree-holder bank. He has added that no notice of auction was served upon the appellants, inasmuch as the Court Auctioneer did not attend the auction proceedings and all the proceedings culminating to the confirmation of sale, are nullity in the eyes of law. He has relied upon judgment, passed by this Court, Messrs Dawood Flour Mills and others v. National Bank 1999 M LD 3205 and Messrs Noor Hayat Industries (Pvt.) Ltd. through Chief Executive v. Judge Banking Court No.1, Multan and 5 others 2004 CLD 1281. Conversely, the learned counsel for the respondents has submitted that the objection petition was dismissed only for non- deposit of 20% of the auction amount, therefore, the pleas raised by the learned counsel, at this stage, are irrelevant and cannot be considered by this Court. He has added that the auction proceedings were legal, valid and sale certificate had been granted to the auction purchaser, who is in possession of the property since long. He has further submitted that no sufficient cause was shown by the appellants for non- deposit of the requisite amount, as directed by the Court, therefore, there was no legal justification for extension of time.
4. Undoubtedly, appellant's objection petition was dismissed on the ground that they failed to comply with the terms of order dated 24-10-2000, whereby the learned Executing Court directed the appellants to deposit 20% of the auction money. Learned counsel for Bank has rightly submitted that other pleas raised by the learned counsel cannot be entertained, as they are out of context. Although it has been urged by the learned counsel that the appellant's counsel requested for extension in time, yet no such material has been placed on record to demonstrate that in fact any such like request was made to the learned Executing Court and on what grounds. Second Proviso to Order XXI, rule 90, C.P.C. envisages that no application under Order XXI, rule 90 shall be entertained, unless the applicant deposits such amount not exceeding twenty percent of the sum realized at the sale or furnishes such security, as the Court may direct. In view of the said provision of law and on the asking of the learned counsel for the appellants, the learned Executing Court, on 24-10-2000, directed the appellants to deposit 20% of the auction price, which order was not complied with by the appellants. Article 166 of the Limitation Act provides that an application under Order XXI, rule 90, C.P.C. has to be filed within thirty days from the date of the sale. It is settled law that the Court has no power to extend the time for doing an act which has been determined and fixed by law. If any case is needed, judgment reported as Messrs Maqi Chemicals Industries (Pvt.)
Limited through Chief Executive and 3 others v. Habib Bank Ltd. through Manager and 2 others 2003 CLD 571 can be referred. The learned Executing Court, on 24-10-2000, directed the appellants to deposit 20% of auction price, despite that the appellants could not take advantage of the extended period and failed to deposit the requisite amount. More importantly, no valid and legal ground was put forth before the learned Executing Court for extension of time, as even according to the stance of the appellants they could not arrange for the amount of Rs.2,60,000. This can hardly be considered as valid and legal ground for extension of time.
5. As regards the contentions raised by the learned counsel for the appellants, suffice it to say that those are of no help to the appellants, at this stage, as their objection petition was not entertained and they were knocked out on the ground of non-deposit of 20% of the auction amount. Had the appellants deposited 20% of the auction price, as directed by the Executing Court, the learned Banking Court would have adjudicated upon and dealt with all the objections raised in their objection petition. The deposit of amount of 20%, of auction amount was sine qua non for entertaining the objection petition. The appellants are precluded from raising the pleas, which they took in their objection petition, as it was not entertained by the learned Banking Court on account of their own acts and omissions and they can blame nobody except themselves.
6. Now coming to the judgments relied upon by the learned counsel for the appellants. As regards judgment of Messrs Dawood Flour Mills and others (ibid), the same is not applicable in the case in hand, as in the said case objection petition was filed along with deposit of 20% of the bid amount, as required under second Proviso to Order XXI, rule 90, C.P.C. and the entire decretal amount was paid by the judgment-debtors. The case of Messrs Noor Hayat Industries (Pvt.) Ltd. through Chief Executive (ibid), was decided with reference to the Financial Institutions (Recovery of Finances)
Ordinance, 2001 while the present case is governed by the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, inasmuch as the appellants have themselves filed the appeal, under the provision of latter enactment. Reliance of the learned counsel on the said judgments is misdirected and those are of no avail to the appellants.
Additionally, order dated 24-10-2000 manifests that the appellants themselves filed a miscellaneous application, thereby seeking permission to deposit a sum of Rs.2,60,000, being 20% of the auction price, and on their pointation, the Court directed them to deposit a sum of Rs.2,60,000. Under the circumstances, the appellants are precluded from blowing hot and cold in the same breath, as on the one hand they filed the application seeking permission to deposit 20% of the auction price and on the other hand by relying upon the case of Messrs Noor Hayat Industries (Pvt.) Ltd. through Chief Executive, are arguing that the provision of C.P.C. are not applicable.
7. In the above perspective, we have examined the impugned order and find that the same does not suffer from any legal defect/error and we are not persuaded to reverse the said order, which is hereby maintained.
8. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed leaving the parties to bear their own costs.