SARMAD JALAL OSMANY, J.---This appeal is directed against the order dated 30-10-2003 passed by the learned Banking Court No,IV, Karachi, whereby the auction of the judgment-debtor's property was confirmed in favour of the appellant in the sum of Rs,2,50,100 while rejecting the condition of his bid that the property should be free from all taxes, liabilities, utilities, dues, and charges etc., as the said sale was conducted on an "as is where is" basis. Consequently, sale certificate was directed to be issued in favour of the appellant on the foregoing lines.
2. The appellant has submitted that the proclamation of sale regarding the property in question did not specify as to what taxes, utilities, charges etc., were payable on the property which have now been ascertained by him to be in the amount of Rs,11,014 as per the bills/challans attached to the appeal, till the handing over of physical possession to the Bidder.
' Furthermore, as per the practice of the Banking Court such charges etc. Have been allowed to be paid from the auction proceeds when these were not itemized in the sale proclamation. Finality, per the appellant as he had specifically bid for the property on the basis that it should be free from all encumbrances, litigation, utilities dues and charges the impugned order could not unilaterally change the terms and conditions of his bid to his disadvantage. In support of his submission he has relied upon United Bank Limited v. Akbar Cotton Mills Ltd. 1993 CLC 1560 and IDBP v. Maida Ltd.
1994 SCM R 2248.
3. Mr. Salim-ud-Din Nasir appearing for H.B.L., did not address any arguments as according to him the dues ( the Bank have already been paid out of the sale proceeds.
4. We have heard the learned counsel and our conclu ons are as under.
5. It would be seen that the proclamation of sale specifically provided the condition of as is where is basis which ordinarily means that all the taxes, dues, charges etc., would have to be paid by the auction purchaser. In response to the proclamation the appellant had on 5-6-2003 offered Rs,1,50,100 for the property (along with the pay order of Rs,37,525 being 25% of the bid amount) less the amount of all taxes, encumbrances, utilities, and charges etc. On 24-6-2003 the appellant deposited the full amount which he had offered. The said offer was subsequently increased to Rs,2,50,100 on 16-7-2003 upon the objection of the decree-holder Bank. Thereafter on 24-9-2003 the decree-holder Bank agreed to accept the enhanced bid whereupon the appellant deposited a further amount of Rs,1,00,000 on the same day and thereafter the impugned order was passed on 30-10-2003. On the very same day the decree-holder Bank filed an application praying that the outstanding balance amount of Rs,1,57,485.10 be released to it out of the sale proceeds which was allowed on the same day.
6. While, there is no cavil with the argument that the Banking Court could not of its own accord change the conditions attached to the appellant's bid viz. The property being free from all encumbrances and charges etc., it would be seen that such order was passed on 30-10-2003, application for certified copy was made on the very next day viz. 31-10-2003 which was supplied on 10-11-2003 and present appeal was filed on 8-12-2003. It would thus be seen that the appellant had by not immediately lodging his protest with the learned Banking Tribunal waived the conditions attached to his offer. So also no appeal was filed by the appellant against the impugned order soon after obtaining a certified copy on 10-11-2003. In the circumstances, we are of the opinion, that this appeal is without merit and hence had vide a short order passed earlier had dismissed it.
7. The above are the reasons for the same.