1. MUNIB AHMAD KHAN, J.---Through this application, the plaintiff Bank has requested as follows:--
(a) Order an appropriate assistance to enable the applicant Bank to exercise its rights to take possession of all the leased buses under section 16(3)(b) or in the alternate.
(b) With a view to prevent (the buses) from being wasted, transfer possession, of all the buses to the applicant Bank under section 16(1)(c) of the Financial Institutions (Recovery of Finances)
2. Ordinance, 2001 read with section 151 of the Code of Civil Procedure, 1908.
3. Learned counsel, to clarify the position in respect to Suit No.B-15 of 2006, has pointed out that an order dated 13-9-2006 was passed on C.M.A. No.2170 of 2006 in that suit and that word "contention" in 5th line of second para.- of that order has been substituted by word "suit". A certified copy of the application of the Bank and order in this respect dated 12-4-2006 has been passed of which certified copy has been provided for perusal. Learned counsel submits that although Suit No.B-15 of 2006 the Bank gave consent for plying of 16 buses out of 25 buses by the Official Assignee with the expectation that earning of buses under the supervision of Official Assignee will set off the outstanding leased money against the borrower/defendant in the suit. He submits that after about one year, it has been transpired through a statement submitted by staff of Official Assignee that only a sum of Rs.261.98 per day has been assessed as Bank share in the earning of each bus and a total sum of Rs.15,09,000 has been paid in a year, while according to repayment schedule a sum of Rs.1,78,86,600 was to be paid by the customer to the Bank and in such a situation, a huge shortfall has emerged, therefore, in the given circumstances, there is no probability of recovery of loan through buses earning and the Bank will suffer great loss, as the buses which are being run as public transport will be worn out within 4/5 years. He submits that staff of Official Assignee has totally failed to manage the affairs of the bus, as expected earning of a long chassis bus could be Rs.6,000 to Rs.7,000 per day. He further submits that this suit is filed for recovery of the amount and this application has been made for appropriate action and assistance has also been sought of this Court to minimize the expected loss while order in Suit No.B-15 of 2006 can be modified in this suit, keeping in view the above circumstances. He further submits that merit of the suit has not been affected by the consent order in Suit No.B-15 of 2006.
4. On the other hand, Mr. Saalim Salam Ansari, learned counsel for borrowers submits that the order dated 13-9-2006 is consent order and that the substitution of the word "contention" by a word "suit" is not denied but that amendment was not applicable to this Suit bearing No.B-19 of 2006 but another Suit bearing No.1 of 2006 which was lying in Banking Court.
5. On merits he has further submitted that buses were handed over to Official Assignee and that was with the intention that buses will earn some amount which will not only set off loan but will also procure some amount for the customer, who has also invested huge amount in buses. He submits that although buses are being run by defendant/borrower but they are under the supervision of Official Assignee and no fraud has been played. He has further submitted that prayer in the application for handing over buses cannot be granted as the defendant filed Suit No.B-15 of 2006 for appropriate relief and contentions towards liability and responsibility of both the parties emerging in both suits. After hearing the learned counsel, representative of Official Assignee, Abdullah Baloch, was called, who is supervising the affairs of the buses. He did not dispute the version of the Bank but has clarified that 50% earning amounting to Rs.261,198 per day per bus, as calculated by the Bank is correct but that earning is normal, he further submits that the buses are on the route of Khokrapar to Hawks bay, which takes about two hours to complete one single trip and normally four up-downs are completed in a day. After hearing the learned counsel and representative of Official Assignee and before giving any finding to the contention of the learned counsel, it appears that representative of Official Assignee either not supervising the management of the buses properly or has some interest in the earning, as buses of long root can earn about Rs.5,000 to Rs.6,000 per day, keeping in view the increase in the fare and utilization of the buses to its full capacity without restriction from the police. It is an open, secret that now a days a rickshaw is routed out for Rs.200 per day while taxis at Rs.400 and private cars range from Rs.2,000 to Rs.3,000 per day. A long bus, when full to capacity, carries about 100 passengers which quantity multiply as on every stop some passengers are substituted. In this way and keeping in view bus fare as Rs.5 to Rs.8, one single one way trip of the bus normally completed in two hours can earn more than Rs.2,000 and in whole day expected amount can be more than Rs.8,000 per day and even if the expenses are deducted then the earning would be not less than Rs.4,000 per day. The representative of Official Assignee namely Abdullah Baloch, when confronted with above observation, could not satisfy. This Court as to what measures he adopted in the beginning when he was entrusted with this task and why it remained unnoticed for a year and let the situation go. In such a situation conduct of official is very much doubted hence he cannot be trusted such type of public duty and Official Assignee is directed not to assign him any duty where the funds are involved, as such type of task need honest person.
6. Reverting back to the arguments of both the learned counsel and after assessing the submission, it seems that plying of losses in terms of order dated 13-9-2006 passed in Suit No.B-15 of 2006 was for the benefit of the parties as non-operation of the buses could cause sufferance for both.
7. Anyhow, that order does not create any bar towards passing order in this suit keeping in view the contention of the parties in this suit. In the circumstances, I find that operation of the buses is resulting busses as earning is nominal while the buses may worn out within 5/6 years, hence it will be in the interest of both the parties if all the 25 buses are taken in possession by the Official Assignee and keeping in view the contention of both the learned counsel, are sold out within a month or earlier through public auction in which the defendant may participate as requested. Sale proceed will be invested by Official Assignee in .The Government Scheme and all the amount so accumulated will be subject to the order of this Court in this suit and in Suit No.B-15 of 2006. The Official Assignee to take possession of all the 25 buses included the buses lying with fabricators. At this stage Mr. Saalim Salam Ansari states that nine buses are with the fabricator and he has also filed Suit No.645 of 2007 against Bank and defendant therefore, auction proceed of those nine buses which are recovered from fabricator will be kept and invested separately. The application stands disposed of.