1. ' MRS. QAISER IQBAL, J.---This order governs C.M.A. No,6338 of 2008 moved by the defendant No,2 for vacation of the status-quo order, dated 11-2-2008 in respect of the following properties:--
(i) Bungalow No,10-A 'Beaverly Estates' Plot No,F/24, Block-9, KDA Scheme No,5, Clifton, Karachi;
(ii) Bungalow No,1-A `Beaverly Estates' Plot No,F/24, Block-9, KDA Scheme No,5, Clifton, Karachi;
(iii) Industrial Plot bearing No,F-497, Survey Sheet No,35- 9 /13, S.I.T. E., Karachi.
2. ' Whereby the defendant No,1, was restrained from selling, dispossessing, transferring and or mutating the immovable properties on foreclosure of the mortgage.
3. ' Mr. Sohail H.K. Rana, learned counsel for the defendant No,2, has contended that the defendant No,1 has sold mortgaged properties comprising of two bungalows in open auction, being a highest bidder in favour of the defendant No,2, on 15-1-2008, the sale-deed was registered before Sub- Registrar, Clifton Karachi. However, further proceedings in consonance with section 15(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001 were stopped, as an application filed by the defendant No,2, before the Banking court bearing No,1 of 2008 filed on 7-2-2008, was not decided 'on account of the operation of the stay in the above suit filed by the plaintiffs. It is next pointed out that ex parte stay was obtained by the plaintiffs on 11-2-2008, after the transfer/ execution of sale-deed before the Sub-Registrar in favour of the defendant No,2. Due to the operation of the stay, the Banking Court did not decide the application of the defendant No,2, which is still pending adjudication thereby defendant No,2 is facing mental agony, as physical possession of the bungalows could not be delivered to the defendant No,2.
4. ' Mr. Naveedul Haq, learned counsel for the defendant No,1 has fairly conceded that after the execution of the sale-deed of the bungalows, the defendant No,2 is entitled to physical possession, as the Bank has received entire sale consideration, stated no objection for vacation of the stay order.
5. ' Mr. Aqeel-ur-Rehman, learned counsel for the plaintiffs has contended that the suit was filed on 23-10-2007, subsequent thereof, notice was issued to the Bank, however, it is admitted that sale- deed was executed on 15-1-2008 and subsequent thereof the order status quo was passed on 11-2- 2008. It is also apprized that fate of Industrial Plot bearing No,F-497, Survey-Sheet No,35-9/13, S.I.T.E., Karachi has been settled as against the above property amount has been paid to the Bank, industrial plot has been assigned to the third party, there is no dispute in respect of the aforesaid plot.
6. ' I have considered the argument advanced at Bar and perused the record.
7. ' As pointed out by Mr. Naveedul Haq, learned counsel for the defendant No,1, that in the circumstances of the case no remedy was available to the plaintiffs in terms of Order XXXIX, Rules 1 and 2, C.P.C., whereas section 15 subsection (12) of Financial Institutions (Recovery of Finances)
8. Ordinance, 2001 was applicable in full force whereby neither the Banking Court nor the High Court shall grant an injunction restraining to sell or proposed to sell of properties unless:--
(a) it is satisfied that no mortgage in respect of the immovable property has been created or
(b) all money secured by mortgage of the mortgaged property have been paid or;
(c) the mortgagor or objector deposits in the Banking Court in cash the outstanding mortgaged money.
9. ' As conceded by Mr. Aqeel-ur-Rehman, learned counsel for the plaintiffs accounts are yet to be settled between the plaintiffs and the defendant No,
1. As a matter of fact conditionalities laid down in section 15(12) of the Ordinance, 2001 were not available to the plaintiffs when the order dated 11- 2-2008 was passed 'by this court in case of Muhammad Khalid and 2 others v. KASB Bank Limited through Managing Director 2007 CLD Karachi 232, the dictum laid down is that:- "Legislature in his own wisdom had framed a special law for expeditious recovery, of dues of financial institution. From reading the above section, one, can see that the legislature used negative language in it. The negative, prohibitory and exclusive words or terms are indicative of legislative intent that the statute is to be mandatory. While interpreting a law, Courts have to find out the intention of the law makers, from the works used in the statute and as such while interpreting section 15(12) of the Ordinance, it has to be interpreted in a way which advance the intention of law makers and not in a way which defeat the very object of special law, resulting that subsection (12) of section 15 of Ordinance, 2001, in my humble opinion, is a mandatory provision restraining the court from granting injunction, to restrain the proposed sale of the mortgaged property, except when A condition of clauses (a), (b) and (c) of subsection (12) of section 15 of the Ordinance are attracted."
10. ' It is an undisputed fact that until this date, the plaintiffs have not settled the claim against the mortgaged properties furnished with the Bank as a security for liquidation of the loan advanced. It also transpires that all proceedings in the above suit had taken place after the sale of mortgage properties was carried out by the defendant No,1, after serving three notices to the plaintiffs on 5-3- 2007, 20-2-2007 and 5-4-2007, which were admittedly received by the plaintiffs. It is further contended by Mr. Naveedul Haq, that the plaintiffs' representative remained in touch with the defendant No,1, during the whole transaction of sale of the mortgaged properties so much so that in connection with the mortgaged industrial plot, the plaintiffs have voluntarily surrendered the documents, for accomplishment of the process.
11. ' The question of the actual amount outstanding against the plaintiffs can only be decided after recording of the evidence or by way of any other mode suggested by the learned counsel appearing for the parties at a subsequent stage, substantial amount is outstanding against the plaintiffs which the plaintiffs have failed to liquidate till this date, which was secured from the sale of the mortgaged properties of the plaintiffs. It further transpires that the requirements of section 15 of the Ordinance, 2001 that in case of default in payment by a customer, Financial Institution may send notice to the Mortgagor demanding payment of the mortgage money outstanding within 14 days from the service of the notice and on failing to pay the amount within due date, second notice of demand for payment of the amount within 14 days has to be served if the Mortgagor failed to pay the amount after service of second notice then the financial institution had to serve a final notice on the Mortgagor demanding payment of mortgage money/outstanding dues within 30 days from the service of final notice to the customer upon service of the final notice to the customer, upon service of the final notice financial institution acquires right to recover the rent and profit from the mortgaged property till the time notice is withdrawn and to sell mortgage properties without the intervention of the court by public auction.
12. ' Admittedly, notices were served upon the plaintiffs calling upon the mortgagors to liquidate the outstanding amount.
13. ' The defendant-Bank has called upon the plaintiffs to pay the due amount along with the mark-up, failing which their mortgaged properties will be sold for the recovery of the bank dues.
14. ' Not only notices were received by the plaintiffs as envisaged under the law they had also cooperated with the defendant No,1-Bank in respect of sale of industrial plot by furnishing title documents arid subsequent assignment to the third party.
15. ' In any view of the matter, per condition of section 15(2) of the Ordinance by serving the notice upon the plaintiffs were satisfied as well as public-auction, notice was published in daily 'fang' dated 19-6-2007 and in daily 'The News" dated 19-6-2007, plaintiffs have admitted the service of the above notice by attaching the above advertisement with the plaint.
16. ' From the perusal of the record, it transpires that the plaintiffs had mortgaged the above referred properties with the defendant-Bank after complying of the requisite formalities as required under section 15(4) of Ordinance, 2001, as the plaintiffs did not deposit and/or pay the outstanding dues to the defendant No,1, admittedly, they were not entitled to the relief by way of status-quo.
17. ' For the foregoing reasons in the interest of justice, the order dated 11-2-2008 for operation of status-quo hereby stands vacated. Defendant No,2 is at liberty to approach Banking Court-I, Karachi for redressal in application No,1 of 2008.
18. ' With the above observations, listed application stands allowed with no order as to costs.