FAQIR MUHAMMAD KHOKHAR, J:---This appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973, is directed against judgment dated 7-3-2002, passed by a learned Division Bench of the High Court of Sindh, at Karachi, in Special High Court Appeal No,94 of 2001.
2. Messrs United Bank Ltd. (respondent No,6), extended cash facility to Messrs Hyderabad Electronics Industries (respondent No,7), against guarantees furnished by late Umer Ghani, predecessor-in-interest of the respondents Nos. 1 to 5. He, through deposit of the title deeds with the Bank, mortgaged his three properties plot No,F-1 (2372.66 Square yards), F-2 (1098.76 square yards) and F-2/l (1127.28 square yards) situated in Block No,IV, K.D.A Scheme No,7, Bahadarabad, Karachi with buildings, shops, walls, fittings and fixtures, etc. The respondent No,7, committed default in discharging its liability of repayment of the loan to the Bank (respondent No,6). Therefore, the bank instituted a suit for recovery of loan before the Banking Tribunal constituted under the provisions of the Banking Tribunals Ordinance No,LVIII of 1984. It was decreed by the Tribunal on 31- 3-1994. Thereafter, the Bank filed Execution Application No,5 of 1995 (re-numbered as 47/1997) for recovery of the decretal amount of Rs, 103,789,753.00 against the judgment-debtors. A learned Single Judge of the High Court of Sindh, acting as a Banking Court under the provisions of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act; 1997 (hereinafter referred to as the Act of 1997) passed an order dated 8-10-1998, whereby the afore-mentioned three properties of the respondents Nos.1 to 5, were directed to be sold by the Nazir of the Court by inviting sealed bids through advertisement in daily newspapers.
3. The sale proclamation was published in the daily newspapers Jang, Dawn and Millat, Karachi thrice on 15-5-1999, 24-7-2000 and 24-10-2000 but the Nazir did not receive any offer. The Nazir of the Court submitted a report to the Banking Court on 22-11-2000 whereupon the Court, by order dated 11-12-2000, directed the Nazir to make further efforts for sale of the properties. Therefore, a sale proclamation was published in the said daily newspapers on 26-1-2001 for the fourth time. The Nazir of the Court made a reference dated 14-2-2001 in that the appellant was the only bidder who had made an offer dated 13-2-2001 and was willing to purchase all the properties Nos.1, 2 and 3 for Rs,1,19,78,600, Rs,55,53,900, and Rs,57,47,700 respectively and had attached pay orders of Rs,11,97,860, Rs,2,55,390 and Rs,5,74,770 for the same. The learned Judge in Chambers. By order dated 26-2-2001, accepted the negotiated offer of the appellant for the purchase of all the three properties after he had raised it from 2,32,80,280 to Rs, 2,41,00,000, with following break-up:-- (1)Property No,1Rs, 1,21,00,000 (2)Property No,2Rs, 59,00,000 (3)Property No,3Rs, 61,00,000 Total: Rs, 2,41,00,000 The Court directed him to deposit the purchase price within one month. On 15-3-2001, he submitted an application C.M.A. No,619 of 2001 to the Banking Court for directing the Nazir of the Court to obtain vacant possession of the properties. He also attached therewith photocopies of the pay orders of the balance amount of sale consideration. The Banking Court, by order dated 27-3-2001, directed the appellant to take steps in terms of Order XXI rule 85 C.P.C. Therefore, he deposited the balance amount on 30-3-2001. The Banking Court in its order dated 9-4-2001 noted that the appellant had deposited the balance amount of sale proceeds and directed the Nazir to take steps for confirmation of the sale. The respondents preferred Special HCA No,94 of 2001 against order dated 26-2-2001 passed by a learned Single Judge in Chambers in Execution Application No,47 of 1997. The same was allowed by a .Learned Division Bench of the High Court of Sindh, by the impugned judgment dated 7-3-2002. Hence this appeal by the appellant.
4. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, the learned counsel for the appellant submitted that the sale of the properties in question was made by negotiation after bid had been received through sealed cover. Therefore, the provisions of Order XXI, rules 65 and 84 C.P.0 were not applicable. It was next contended that by virtue of subsection (7) of section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act No, XV of 1997, the learned Single Judge of the High Court acting as a Banking Court was at liberty to recover the amount covered by the decree, on the application of the decree-holder, in accordance with the provisions of Civil Procedure Code, 1908 or any other law for the time being in force or any such other manner as the Banking Court might deem fit. As provided by Subsection (5) (ibid) the property could be sold by inviting sealed tenders through advertisement in the newspapers. Therefore, it was not necessary for the High Court/Banking Court to follows the Civil Procedure Code strictly as it was empowered to execute a decree in some other manner. Reliance was placed on the cases of Nawazish Latif Bhatti v. Allied Bank of Pakistan (2004 CLD 92), Messrs Chawala International v. Habib Bank Ltd. (2003 CLD 956) and Agha Attaullah v. Presiding Officer, Banking Court and others (2002 CLD 1550).
5. The learned counsel contended that through the sale proclamation published in leading newspapers thrice, the Banking Court invited bids in sealed covers but did not receive any offer/bid. For the fourth time it was only the appellant who made an offer to purchase the properties. The Nazir of the Court made a reference on 14-2-2001 stating therein that the appellant was the only bidder who was willing to purchase all the three properties for Rs,2,32,80,200. The learned High Court, by order dated 26-2-2001, accepted the offer of the appellant after he had raised it to Rs,2,41,00,000 in the Court. He was directed to deposit the balance of purchase price within one month. The appellant deposited the entire consideration amount on 30-3-2001 pursuant to High Court's order dated 27-3-2001. In these circumstances, it was urged, that the appellant could not be penalized for the act of the Court in carrying out its directions in the matter of deposit of the amount of sale consideration. The learned counsel relied on the cases of Rashid Ehsan and others v. Bashir Ahmad and another (PLD 1989 SC 146) and Messrs Masoom Industries and others v.
Habib Bank Ltd. (2005 SCM R 746). The High Court, in its order dated 9-4-2001, noted that the appellant had deposited the balance of the purchase money and directed the Nazir of the Court to take steps for confirmation of the sale. By then, no higher offer was made by anyone else and one did not know as to when and how the bid of Rs, 28 million was made by one Ismail Haji, Director of the Star Cotton Corporation (Pvt.) Ltd. After the deposit of the sale consideration by the appellant, the substantial interest and legal rights were created in his favour which could not be disregarded as held by this Court in the case of Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. (PLD 1987 SC 512) affirmed by this Court in review as reported in (1991 SCM R 51). The time for depositing the balance of the sale consideration had been validity extended by the Court to which no exception could be taken in view of the law laid down by this Court in Rashid Ehsan (supra) and Messrs Masoom Industries and others (supra).
6. The learned counsel lastly submitted that sale of the properties was made by the learned Single Judge of the High Court/Banking Court in fair and transparent manner which fetched the maximum price. No objection petition was filed by the respondents Nos.1 to 5 who were deemed to have waived their right to agitate the matter. Reference was made to the case of Vellanyan Chettiar and others v. The Government of the Province of Madras and another (AIR 1947 PC 197 = PLD 1947 PC 160) and Muhammad Umar Khan v. Senior Member, Board of Revenue N.-W.F.P and others (PLD 2004 SC 421). The sale of the properties in dispute to the appellant by the learned Banking Court did not suffer from any mala fide or other legal infirmity. Therefore, the same ought not have been set aside by a learned Division Bench of the High Court through the impugned judgment. The learned counsel relied on the case of Messrs United Bank Ltd. v. Mst. Asma Zafarul Hassan (1980 CLC 565) wherein Ajmal Mian, J (as his Lordship then was in the Sindh High Court) had taken the view that the provisions of Order XXI rule 85 C.P.C. Were not attracted in the case of negotiated sale. The learned Single Judge of the High Court while executing the decree acted as a Judge of the Banking Court and not as a High Court as held in the case of Pakistan Industrial Credit and Investment Corporation Ltd., Peshawar Cantt. And others v. Government of Pakistan through Collector of Customs, Customs House Peshawar (2002 SCM R 496).
7. On the other hand, Mr. Muhammad Akram Sh., Senior Advocate Supreme Court, the learned counsel for the respondents Nos. 1 to 5 argued that in the matter of execution of decrees under the Act of 1997, the provisions of C.P.C. Were required to be strictly followed. The appellant-auction purchaser had failed to deposit the balance amount of sale of the properties within a period of 15 days from the sale as required by rule 85 of Order XXI, C.P.C. Therefore, the period fixed by the Statute could not at all be extended by the Banking Court under section 148, C.P.C. The provisions of Order XXI, rules 84 and 85, C.P.C. Were mandatory in nature and non-compliance thereof could not be condoned by the Court. He relied on the cases of Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Syed Mahamad and another (AIR 1954 SC 349), Ajksun International Manufacturers and Exporters through partners and 2 others v. Habib Bank Ltd. (2005 CLD 1), Messrs Chawala International v. Habib Bank Ltd. And others (2003 CLD 571) National Bank of Pakistan v. Messrs Nasir Industries, Karachi and others (1982 CLC 388), Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd., (2003 CLD 1693), and unreported judgments by this Court in the case of M/s Kiran Sugar Mills Ltd v. M/s. Chawala International Karachi (Civil Petitions Nos. 1113-K/2002, 29/2003) decided on 9-9-2004 and Afzal Mansoor Butt v. Banking Court No,II, Lahore and 8 others (Civil Appeals Nos.873 and 874/2002) decided on 21-3-2005 (2005 CLD 967=PLD 2005 SC 470). The learned Division Bench of the High Court was quite justified in taking the view that the appellant had failed to make payment of entire amount of sale consideration within the statutory period of 15 days and that Mr. Mansoor-ul-Arifeen, Advocate, appearing for the appellant before the High Court had also conceded that the provisions of Order XXI, rule 84, C.P.C. Were attracted in the case.
8. It was next contended that the sealed bid of the appellant received by the Nazir of the High Court would not amount to public auction as held in Hudayabia Textile -Mills Ltd., (supra) (1991 SCM R 51) and Gulabsingh v. Chandrapal Singh (AIR 1987 Bombay 90). The negotiated sale would not satisfy requirements of public sale so as to inspire confidence. The learned counsel relied on the case of Capt. PQ Chemical Industries (Pvt) Ltd., v. A.W. Brothers and others (2004 SCM R 1956), in support of his argument that the auction proceedings were required to be conducted in a fair and transparent manner and every possible effort was to be made to fetch the maximum price of the properties. The prime object of inviting public tenders was to provide equal opportunity to all the prospective bidders which could not be frustrated. A mere offer of the bid whether highest or lowest did not create any legal right in favour of the bidder. In the present case, a higher offer of Rs, 28 million along with pay orders had been made by the Star Cotton Corporation (Pvt.) Ltd., but the same did not receive any consideration by the Banking Court. The power of this Court under Article 187 of the Constitution to do complete justice was required to be discharged within the parameters of the Constitution and the law. He referred to the opinion of Saleem Akhter, J (as he then was) in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.-P and another (PLD 1995 SC 66 at page 190).
9. The learned counsel further submitted that in absence of a Court order in terms of rule 92 and Order XXI C.P.C, the sale of the properties in question would not become absolute, Before confirmation of such sale, the Court must satisfy itself that the sale price was adequate. Reference was made to the case of Navalkha and Sons v. Sri Ramanya Das and others (AIR 1970 SC 2037). The order dated 9-4-2001 passed by the learned Single Judge itself showed that sale of the properties in question was yet to be confirmed. Therefore, the appellant could not be said to have acquired rights therein. In these circumstances, a higher offer of Rs,28 million made by Star Cotton Corporation Ltd., Karachi, could not be kept out of consideration as rightly observed by the learned Division Bench of the High Court in the impugned judgment. The learned counsel urged that failure of the respondents Nos.1 to 5 to make any objection petition in terms of rules 89 and 90 of Order XXI, C.P.C. Against sale of the properties would not absolve the Banking Court of its legal obligation to set aside the sale on the ground of material illegalities and irregularities. The price of the properties paid by the appellant was much lower than their real value. Therefore, the learned Division Bench of the High Court was justified in setting aside the order dated 26-2-2001 passed by a learned Single Judge of the High Court/Banking Court of accepting the negotiated offer of the appellant.
10. Mr. Muhammad Afzal Sandhu, Advocate Supreme Court (CMA No,793/2004) argued that the non-performing assets of M/s Hyderabad Electronics Industries Ltd., (respondent No,7) outstanding with the United Bank Ltd. (respondent No,6) had been acquired by the Corporate and Industrial Restructuring Corporation (C.I.R.C) by virtue of the provisions of the Corporate and Industrial Reconstructing Corporation Ordinance, 2000. Therefore, the said Corporation was to be impleaded as a necessary party to the proceedings before this Court.
11. We have heard the learned counsel for the parties at length and have also perused the available record with their assistance. Subsection (2) of section 18 of the Act of 1997, provides the mode and procedure of execution of decree by the Banking Court and to recover the decretal amount by following the provisions of the Code of Civil A Procedure, 1908, or any other law or in such other manner as it may deem fit. Therefore, a Banking Court can, in an appropriate case, make a departure from the provisions of C.P.0 for executing the decree. Subsection (2) permits a Banking Court to sell 'a pledged or mortgaged property with or without intervention of the Court either by public auction or by inviting sealed tenders. Reference may usefully be made to the cases of Ch. Abdul Majeed v. Sadaqat Ali and others (2004 SCM R 1325) and Hudabia Textile Mills (supra). In the present case, the . Banking Court took a conscious decision to sell the properties by inviting sealed tenders instead of by public auction as envisaged by rule 65 of Order XXI, C.P.C.
12. The negotiated offer made by the appellant/auction-purchaser to purchase the properties in question was accepted by the Banking Court, by order dated 26-2-2001 with the direction to deposit the balance of consideration amount within a period of one month. The appellant moved C M . A. No,619 of 2001 before the expiry of the period of one month for . Issuance of directions to the Nazir of the Court to obtain vacant possession of the properties. The photo-copies of pay orders for the balance amount were also attached therewith. The said application was taken up by the Banking Court on 27-3-2001. And the Court directed the appellant to take steps in terms of Order XXI, rule 85, C.P.C. Therefore, he deposited the entire balance amount of the sale with the Nazir of the Court oft 30-3-2001. On 9-4-2001, the Banking Court had noted that the appellant had deposited the balance amount. Therefore, the Court directed the Nazir of the Court to take steps for confirmation of sale. The Banking Court, by order dated 26-2-2001, had itself given a period of one month to the appellant to deposit the balance of purchase money which was extended by order dated 27-3-2001. He made the requisite payment to the Court on 30-3-2001. Therefore, he could not be penalized merely on the ground that he had failed to make such deposit within a.Period of 15 days as stipulated in Order XXI, rule 84, C.P.C. It was for the first time through order dated 27-3-2001 that the Banking Court, by making a reference to Order XXI, rule 85, had decided to follow the procedure as laid down by the C.P.C.
13. In the case of Rashid Ehsan (supra), the auction-purchaser had not deposited the balance amount within 15 days of the confirmation of the sale as required by Order XXI, rule 85, C.P.C. And the same was deposited on the very next day of the receipt of the file in the Collector's office. The Collector had published a public notice, in the newspapers. That the ,balance of the price would be payable on confirmation of the sale. Although the public. Notice was found to be in violation of the provisions of Order XXI, rule 85, C.P.0 but the error was committed by the Officer, authorized to conduct the sale for which the auction-purchaser was not at fault. This Court took the view that to penalize the auction-purchaser for complying with the directions of the public functionaries, even though erroneous, who had conducted the sale was neither fair nor equitable. This Court made the following observations:- "The maxim "Actus curiae neminem gravabit" comes into play, with a view to obviate hardships and which may 'otherwise be the result of the errors of the Court itself. Thus where a noncompliance with the mandatory provisions of a law occurs by complying with the direction of the Court, which is not in conformity with the law, the party complying therewith is not to be penalized. Indeed, the law becomes flexible to absorb such abnormalities and treat the infractions as harmless. Where the directions issued while administering the law have been followed but it is found that the authority itself had acted in deviating of the law in some particulars. The party acting in accordance with such directions is not held to be blameworthy"
14. In the case of Messrs Masoom Industries (supra), the auction was conducted by the Court auctioneer on 11-5-2000 as directed by the officer of the Court although the date specified by the Executing Court itself was 13-5-2000. This Court held that on account of mistake of the Court officers. The sale although taken on a date earlier than the one specified by the Court, was still valid as no mala fides were attributed to the Court auctioneer. Even the plea by the judgment- debtor that there were many intending buyers who could not take part due to nonconducting of sale on the date specified by the Executing Court was not accepted. In Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited (PLD 2003 SC 808). An objection was taken that since the parties to litigation had participated in the proceedings before the Court, therefore, it would not be a proper stage for making a reference to arbitration. It was observed that proceedings of the suit were allowed to continue under the interim orders of the Supreme Court and not because of any voluntary act of one of the parties. Therefore, objection against reference of the dispute to arbitration was not sustainable. It was further held that a person would not be made to suffer on account of an act of the Court and an order passed by the Court would not cause any prejudice to any of the parties. In Imtiaz Ahmed v. Muhammad Ali (PLD 1963 SC 382), late B.Z Kaikaus, J (as his Lordship then was) expressed his opinion at pages 399-400 in the following words:-- "I must confess that having dealt with technicalities for more than forty years. Out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
"I am unable to place the mistakes committed by the Administration on the same footing as mere accidents. The difference is that in one case the harm caused to a party being the result of a mistake committed by the Administration there is an obligation on our part to undo it as far as that is possible. There is no such obligation in the case of an accident. In relation to Courts there is a well known saying that the act of Court will not prejudice anybody. I do not see why the principle of this maxim does not apply to the whole machinery of the Administration of which the Courts are only a part. No mistake committed by this machinery should prejudice any person as far as that can be helped."
A some-what similar view was taken in the cases of Sajawal Khan v. Wali Muhammad (2002 SCM R 134), Fida Hussain v. The State (PLD 2002 SC 46), Ghulam Hussain v. Jamshaid Ali (2001 SCM R 1001), Imran Ashraf v. The State (2001 SCM R 424), State v. Asif Adil (1997 SCM R 209), Iftikhar Baig v.
Muhammad Azam (1996 SCM R 762), Sherin v. Fazal Mehmood (1995 SCM R 584), Abdur Rashid v.
Abdul Salam (1991 SCM R 2012), Fateh Khan v. Bozemir (PLD 1991 SC 782), Muhammad Hanif v.
Muhammad (PLD 1990 SC 859), Rashid Ehsan v. Bashir Ahmed (PLD 1989 SC 146), Ghulam Haider v.
Raj Bharri (PLD 1988 SC 20) and Abdul Ghani v. Rasool (PLD 1977 SC 102). We, therefore, hold that the sale which was otherwise validly made in favour of the appellant could not be set at naught merely for the reason that the Banking Court had fixed the period of one month and had extended it further to enable him to deposit the balance amount which was beyond the period of 15 days as fixed by Order XXI, rule 85, C . P. C .
15. There respondents Nos.1 to 5 did not make any application for setting aside the sale of their properties as required by Order XXI, rule 89, C.P.C. By depositing in the Court a sum equal to 5% of the purchase money for payment to the auction-purchaser, and for payment to the decree-holder the amount specified in the proclamation of sale. Even no objection was taken by them in terms of Rule 90, Order XXI, C.P.C. For setting aside sale on the ground of material irregularity or fraud in publishing or conducting the sale of their immovable property in execution of decree. The orders dated 26-2-2002, 27-3-2001 and 9-4-2001, were passed by the learned Single Judge in presence of the learned counsel of the respondents Nos.1 to 5 but without any demurral by him. It seems that the respondents Nos.1 to 5 had acquiesced in the manner and mode in which their properties were sold. They did not avail the opportunity to purchase the property at a matching price by making payment in cash within a period of 30 days as provided by subsection (5) of section 18 of the Act, 1997.
16. The properties in dispute were put to sale four times through proper advertisements in the press by inviting sealed tenders. The Banking Court did not receive any bid on three occasions. The appellant was the only person who made the offer on the fourth occasion by making deposit of initial amount. He raised the amount of bid from Rs,2,32,80,200 to Rs,2,41,00,000, The learned Judge in Chambers in his capacity as a Banking Court sold the properties in dispute to the appellant in a just, fair and transparent manner to which no exception could be taken.
17. As regards the so-called offer of higher bid of Rs,28 million by Messrs Star Cotton Corporation (Pvt.) Ltd., Karachi, we find that there is nothing on record to show that it was actually made on or before 9-4-2001 to the Banking Court. The same did not find any mention in Court's order dated 9- 4-2001. Therefore, the learned Division Bench of the High Court does not seem to be correct in its view that the learned Single Judge should not have proceeded to confirm the sale in favour of the appellant when a higher offer was brought to the notice of the Court.
18. Now coming to the question of concession made by the learned counsel for the appellant before the High Court for applicability of the Rule 84, Order XXI, C.P.C, we may observe that there can be no estoppel against a statute. Mere concession on a question of law by a party would not operate as an estoppel. It is the duty of the Court to interpret and apply the law correctly regardless of any concession made by a party or its counsel. Reference may usefully be made to the cases of Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382), Ikram Bits Service and others v. Board of Revenue, West Pakistan (PLD 1963 SC 564), Shahul Hameed v. Tahir Ali (1980 SCM R 469), Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690) and Pir Sabir Shah (supra). In the case of Government of West Pakistan through Secretary, P.W.D (Production Branch,), Lahore v. Mian Muhammad Hayat (PLD 1976 SC 203), it was observed that the question involving interpretation of law fell within the duty and function of the Court, and it was for the Court to say whether a particular rule applied to the F respondent irrespective of the concession made by the counsel. Such a concession was not contemplated under the law, nor it had in any way bound a particular party or the Court, and prevented the Court from doing its duty according to law.
19. The negotiated offer made by the appellant having been accepted by the Banking Court, the appellant had acquired legal rights and interests in the properties purchased by him. In Janak Raj's case (AIR 1967 SC 608), it was held that once payment of the sale price by the auction-purchaser in compliance with the orders of the Court had been made, it was the duty of the Court to confirm the sale as required by Order XXI, rule 92, C.P.C. Even where the Court fails to pass an order of confirmation that could not lead to deprivation of right of auction-purchaser or cause prejudice to him. In such a case, it could be deemed that the sale stood confirmed and would be deemed to have become absolute in title by virtue of section 65, C.P.C. Which would relate back to the date of sale. In the case of Hudabia Textile Mills (supra), the legal rights and interests of auction-purchaser were recognized which would not be defected.
20.In our view the impugned judgment by the learned Division Bench of the High Court of Sindh suffers from errors of law and fact, as pointed out above, and therefore the same is not sustainable at law.
21. For the foregoing reasons, this appeal is allowed with costs throughout. Consequently, the impugned judgment dated 7-3-2002, passed by a learned Division Bench of the High Court of Sindh at Karachi in Special High Court Appeal No,94 of 2001 is set aside. The orders dated 26-2- 2001, 27-3-2001 and 9-4-2001 passed by a learned Single Judge in Chambers are held to be valid.