Through this appeal under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 appellants have impugned the order, dated 18-1-2005 passed by leamed Banking Court No. II, Karachi (Annexure "E/2" to the instant appeal available at page 37), whereby bid of Night Abdullah, the respondent No. 2 herein, was accepted in the sum of Rs.
72,00,000 which amount was already deposited at the time when such order was passed.
2. Lt was contended by Mr. Abul Inam, learned counsel appearing for the appellant that the appellant had arranged an offer in the sum of Rs. 80,00,000 which was declined by the said learned Banking Court and he was not given opportunity to make offer in respect of his property bearing Bungalow. No. D-10, Block 7, Gulshan-e-Iqbal, Karachi.
3. Ln contra, Mr. Rasheed Ahmed Razvi, learned counsel appearing for respondent No. 2 contended that bidding was held earlier as per directions of the learned Banking Court. All the parties were given, fair opportunity to make offer in respect of the subject property consisting of a Bungalow bearing No. D.-10, Block 7, Gulshan-e-Iqbal, Karachi and a factory constructed on Plot No. 9, Sector A-2, Export Proceeding Zone, Karachi, measuring 1000 meters, with ground plus two storey construction, lt seems that the auction proceeded in favour of respondent No. 2 was also challenged in First Appeal No. 13 of 2004 by one Imtiaz Ahmed Qureshi before another learned Division Bench of this Court, lt was observed by the learned Division Bench that bids were to be submitted before the Banking Court between 12 noon to 1-00 p.m. On 24-2-2004 and the Bid of respondent No. 5 (respondent No. 2 herein) was found to be highest and the learned Division Bench declined to interfere in the acceptance of bid in the sum of Rs. 72,00,000/-
4. He' has further pointed out that the appellants herein were already party to the above-referred appeal but hey choose not to contest the matter and further, lt is stated that after decision in Appeal, the appellant has again attempted to undo the auction already taken place and affirmed by in appeal, lt was urged that First Appeal No. 13 of 2004 was decided by the learned Division Bench on 22- ,10-2004 and the present proceedings were initiated much after that, lt is urged that there must be some cut-off date to entertain the objections. According to the learned counsel of view of the dicta laid down in the case reported as Muhammad Akhlaq Meron v. Zakaria Ghani PLD 2005 SC 819. Ln paras. 15 and 19 of the said judgment apex Court held that the procedure as provided under the Code of Civil Procedure is not strictly applicable in cases file under the Banking Jurisdiction and the course adopted by the learned Banking Court was not interfered in the cited case, ln cited case it appears that the bid was accepted beyond thirty (30) days as ordered by the Banking Court and the High Court set aside the sale, treating it to be volatile, of Order 21, rule 89, C.P.C, in the context, it was held that, the provisions of Order 21 are not to be invoked in aid of execution in the Banking Courts where the specific provisions are provided for and in terms of section 18 of the Banking Ordinance, 1979, the Banking Court could, have adopted any course as may be considered expedient.
5. Mr. Rasheed A. Razvi, learned counsel for respondent No. 2 has further pointed out that, the appellant has not made a bona fide offer, present controversy is in respect of residential premises whereas the appellant herein in para 4 of his affidavit in support of application (C.M.A. No. 1590/2005) under section 151, C.P.C, has made an offer of Rs. 1,10,00,000. (rupees One Crore Ten Lacks only) covertly in respect of both premises namely the Bungalow and the factory as well, lt was, therefore, urged that the instant appeal, is motivated to deprive the appellants of the confirmation that has been made in his favour.
6. Mr. Aziz-ur:Rehman, learned counsel appearing for the respondent No. 1 further points out that the appellant has already withdrawn the earnest sum of 10% deposited before the learned Banking Court as for as back on 18-1t2005. Order allowing his request has been placed along with the counter-affidavit filed by the respondent No. 1. He, therefore, contends that once the judgment- debtors/appellants has withdrawn earnest money, he looses all rights to claim the rights and interests in the property. He has placed reliance on 2005 SCMR 12'37.
7. A We have heard the arguments of learned counsel for the parties, perused the material brought on record and examined the case-laws cited at bar.
8. Lt is now settled proposition of law that once a , bid has been accepted, and no objections are filed within given time, as held in 2005 SCM R 1237 the auction is to be deemed to have been confirmed under Order 21 rule 65, C.P.C, lt is also settled that the Courts cannot be turned into auction house. Procedure adopted by the Banking Court, in our humble estimation, did not suffer from any illegality or perversity of the nature as urged in the instant appeal. Even the bid has been sanctified in HCA No. 13 of 2004, coupled with the fact that the appellant had already withdrawn his bid amount prior to filing of this appeal and had not disclosed such fact. Even the bid made before this Court as per (C.M.A. No. 1590 of 2005) under section 151, C.P.C, in the sum of Rs. 1,10,00,000 (Rupees One Crore ten Lacs only) is in respect two properties namely residential property subject- matter of instant appeal and so also for the factory in Export Processing Zone, ^whereas bid in respect of bungalow of 1000 square yards at Gulshan-e-Iqbal has been confirmed for 72,00,000 in the year 2004. Accordingly, we do not find any merit in this appeal, which is dismissed. Let the amount deposited by the appellants be refunded forthwith on proper verification and identification.
9. The appeal stands disposed of in above terms along with all the miscellaneous pending applications.