ORDER CH. UAZ AHMAD, J.- This is an application for restoration of the writ petition, which was dismissed for non- prosecution vide order dated 13.1.2004. The learned counsel of the applicant submits that he could not appear on the said date on account of the unavoidable circumstances mentioned in the application.
2. Learned counsel of the respondents submits that learned counsel of the applicant and the applicant failed to show sufficient cause for restoration of the main writ petition.
3. Be that as it may, the application is supported by an affidavit and the reasons recorded therein.
The application is allowed as prayed for. Consequently, main writ petition is restored to its original number.
4. With the concurrence of the learned counsel of the parties the main writ petition is decided by a separate order.
WRIT PETITION No. 3321-2003
CH. IJAZ AHMAD, J.--- The brief facts out of which the present writ petition arises are that the respondent-Bank has awarded finance facility to the petitioner on 13.6.1990. An agreement was also executed between the parties and according to the terms and conditions of the agreement, the petitioner has to discharge his liabilities in terms of the agreement in easy installments till 12.6.1991. The petitioner failed to discharge his liabilities in terms of the agreement: The respondent- Bank being aggrieved filed suit for recovery of Rs. 15,78,082/- before the Banking Court No. II, Gujranwala. The Banking Court decreed the suit vide judgment and decree dated 27.9.1994 amounting to Rs. 14,40,000/- with costs amounting to Rs. 18,217/-. The respondent-Bank filed execution petition before the Banking Court. The petitioner being aggrieved by the order of the Banking Court field Constitutional Petition No. 1274-1995 before this Court. The operation of the decree was suspended subject to the payment of Rs 11,94,000/- within four months vide order dated 1.2.1995. The petitioner failed to comply with the order dated 1.2.1995. The execution Court after prescribed period by this Court, initiated proceedings in the execution petition. Wear Toque Special Attorney of the petitioner appeared before the Executing Court on 18.1.1996 and has given undertaking to pay 1/4 of the decrial amount of Rs. 3,64,550/- within 15 days and the remaining amount would be paid by him within six months. The petitioner failed to honour his commitment and the Banking Court was constrained to appoint Court Auctioneer, who held the auction proceeding of the property in question, which was mortgaged by the Bank at the time of sanctioning of loan facility to the petitioner. The highest bid was amounting to Rs. 7,01,000.00. The petitioner filed an application before the Executing Court on 20.12.2002 with the prayer to allow him to deposit the amount alongwith 5%. The petitioner failed to (sic) Court vide order dated 1.3.2003.
The petitioner being aggrieved filed this writ petition.
2. The learned counsel of the petitioner submits that the impugned order is very harsh and is not sustainable in the eye of law and the Banking Court passed the impugned order in violation of the mandatory provisions of law, therefore, impugned order is not sustainable in the eye of law. The learned counsel of the petitioner has stated under instructions before this Court on 20.3.200 as under:- "The petitioner is ready to satisfy the decree alongwith 5% of sale amount."
The learned counsel of the petitioner today requests adjournment to secure fresh instructions from the petitioner, which is declined, thereafter he argued the case.
3. Learned counsel of the respondents submits that the petitioner has floated the process of law as the respondent-bank secured the decree against the petitioner on 27.9.1994 and the decree- holder did not secure any money from the petitioner in terms of the decree till date. He further submits that the petitioner has filed application before the Executing Court under Order 21, Rule 89, C.P.C. The petitioner failed to deposit the amount in terms of the Order 21, Rule 89, C.P.C, within a period of 30 days, which is condition precedent in view of Article 166 of the Limitation Act. He further submits that petitioner did not even deposit the 5% of sale amount within 30 days and also did not file any application for extension of time, therefore, impugned order is valid and the learned counsel of the petitioner failed to point out any infirmity or illegality in the impugned order.
4. Learned counsel of respondent No. 2 also adopted the arguments of the learned counsel of respondents Nos. 1 and 4.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is admitted fact that the petitioner has not deposited 5% of the sale amount within 30 days as required under the law, therefore, this fact brings the case in the area that the petitioner has not approached this Court with clean hands, It is settled principle of law that Constitutional jurisdiction is discretionary in character, I am not inclined to exercise my discretion in favour of the petitioner on account of his conduct before this Court as well as before the Banking Court as the law laid down by the Honourable Supreme Court in the following judgments:-- Nawab Syed Raunaq Ali's case (PLD 1973 S.G. 236)
Haji Saif Ullah's case (PLD 1989 S.C. 166)
Rana Muhammad Arshad's case (1998 SCM R 1462)
It is condition precedent to entertain the application of the petitioner subject to payment of 5% of sale amount, which was not deposited by the petitioner, therefore, the Banking Court was justified to dismiss the application of the petitioner, In arriving to this conclusion, I am fortified by the law laid down by the superior Courts in the following judgments:-- Naional Bank of Pakistan's case (1990 M LD 258)
Rao Muhammad Suleman's case (PLJ 1987 Lah.280)
7. In view of what has been discussed above, I do not find any infirmity or illegality in the impugned order of the Banking Court. However, in the interest of justice and fair play, the decree was passed, against the petitioner amounting to Rs. 15,31,128/-, the property in question was auctioned amounting to Rs. 7,01,000/-. In this view of the matter, the petitioner is directed to satisfy the decree within one month alongwith 5% of sale amount, In case the petitioner fails to satisfy the decree in letter and spirit within one month from today then the Executing Court shall proceed in the matter in accordance with law and the respondents are at liberty to get the matter be finalized before the Executing Court in accordance with law. It is pertinent to mention here that respondent-bank has sanctioned the loan facility in favour of the petitioner after securing mortgage of the property of the petitioner on 13.6.1990 amounting to Rs. 14,40,000/-. The property, which was mortgaged by the Bank, was auctioned in the year 2003 for consideration of Rs. 7,01,000/-. This brings the case in the area that the Bank official-officers have sanctioned the loan facility to fie petitioner. The bank official-officers are also responsible for the destruction of the Financial Institutions, as the officials- officers of the Bank shall sanction the loan without determining the price and value of the property mortgaged at the time of sanctioning of the loan facility to the petitioner, In this view of the matter, let this order be sent to the President of the Bank, who is directed to constitute a high powered committee to probe into the matter, who has sanctioned the loan in such a manner that the mortgaged property was more than Rs. 12,00,000/- in the year 1990 and sold in the year 2003 for Rs.
7,01,000/-. In case the committee finds any official-officer of the bank is responsible for any misdeed or mischief then the competent authority is directed to proceed against him under Efficiency and Discipline Rules. He is directed to complete this process within four months. Office is directed to send a copy of this Order to the President of the Bank as well as Finance Secretary for information, who is also directed to look into the matter that what is happening in the financial institutions that financial institutions have been ruined on account of the Bank officials-officers. He is directed to formulate a policy in future so that the bank officers-officials shall sanction the loan in accordance with law keeping in view the ground realities. They are further directed to submit report to the Deputy Registrar Judicial of this Court within the stipulated period. Office is also directed to provide a copy of this Order to Mr. Muhammad Hanif Khatana, Addl. Advocate-General and Dr. Danishwar Malik, Deputy Attorney-General for Pakistan, who are directed to send the same to the President of the Bank as well as to. The Finance Secretary, Government of Pakistan, for necessary action and compliance.
With these observations the writ petition is disposed of.