Muhammad Junaid Ghaffar, J.--Through instant petition, the petitioner has sought the following relief(s):-- "(1) To set aside the impugned order dated 23.10.2013, Sale Certificate dated 7.1.2014.
(2) To set aside letter to vacate possession of the property.
(3) To Direct the respondent to postpone/suspend execution proceedings No, 47/2009 for vacating the suit property dated 9.1.2014 in respect of the suit property till final decision of this Hon'ble Court.
(4) To declare null & void sale/auction proceeding with the bidder.
(5) To restrain the respondents, decree holders, anyone acting on their behalf not to disturb the petitioner, disposes the petitioner from the mortgaged property/suit property i,e. Bearing Flat No, 705, 7th Floor admeasuring 1858.95 Square Feets Sea Breeze Condominium Clifton, Block 2, Karachi till Finalization of this Constitution Petition.
(6) Any other relief or reliefs which this Hon'ble Court may deem fit and proper in circumstances of the Constitution Petition."
2. Briefly stated facts as per the memo of petition are, that the petitioner is one of the legal heirs of deceased Malik Khuda Muhammad who expired in 2007 and had during his lifetime had mortgaged the suit properly bearing Flat No, 705, 7th Floor admeasuring 1858.95 Sq.Ft. Sea Breeze Condominium Clifton, Block 2, Karachi ("property") with Respondent No, 2 and had obtained a finance facility. Subsequently, Respondent. No, 2 filed a recovery Suit Bearing No, 184 of 2008 before the Banking Court No, II at Karachi. ("Banking Court") which was decreed in favor of Respondent No, 2 for a sum of Rs, 33,11,762/- along with cost of funds. Thereafter an Execution Application Bearing No, 47 of 2009 was filed by the Respondent No, 2, and on 22.2.2010 auction proceeding for the sale of the said property was conducted and one offer was received in the sum of Rs, 3.6 million, however the offer was not accepted by the learned Banking Court. Subsequently, valuation of the said property was ordered to be conducted and the Valuator submitted its Valuation report dated 08.08.2011 after which on 2.9.2011, second auction was conducted for the sale of the said property but no bids were received. It is further stated that the petitioner filed objections to the auction proceedings on 26.9.2011 and contended that valuation of the said property was on the lower side and must be revised. Thereafter no further proceedings took place till 28.11.2013 when the third auction was carried out and one offer of Rs, 3.7 million was made by auction purchaser ("auction purchaser") which was accepted by the learned Banking Court and a sale certificate dated 7.1.2014 was issued in favor of the auction purchaser, after which a writ of possession " was issued on 9.1.2014 which has been challenged in the instant petition by the petitioner.
3. Mr. Zeeshan Abdullah learned Counsel for the petitioner contended that the impugned orders dated 7.1.2014 and 9.1.2014 were illegal and against the mandatory requirements as prescribed under Order XXI Rule 66, CPC. It was further contended that the property was sold at a much less price on the basis of valuation report dated 08.08.2011; whereas the auction was conducted in the year 2013 and the price of the property had appreciated, therefore the auction was not sustainable and liable to be set-aside. Learned Counsel further contended that in fact the petitioner had challenged the judgment dated 23.02.2009 and decree dated 26.02.2009 passed in Suit No, 184 of 2008 by the learned Banking Court through First Appeal No, 17 of 2009 before this Court which was partly allowed vide Order dated 22.11.2011 and subsequent to passing of the said order, the Respondent No, 2 was required to file an amended Execution Application as the decree already passed by the learned Banking Court was no more in field, rather stood modified to the extent of judgment dated 22.11.2011 and decree dated 18.6.2013. Per learned Counsel, hence all such proceedings which had been acted upon by the learned Banking Court were corum-non-judice and fresh Execution proceedings were required to be initialed after passing of such decree and judgment in appeal. Learned Counsel further contended that no notice was served on the petitioner (who is the judgment debtor as well) under Order XXI Rule 66, CPC, and therefore, the entire auction proceedings were illegal and liable to be set aside. Learned Counsel also contended that the said property was also mortgaged in another case and such encumbrance has not stated in the proclamation of sale, therefore the impugned auction was liable to be set aside on this ground as well. Learned Counsel next submitted that though the petitioner was being represented before the learned Banking Court, but after passing of judgment dated 22.11.2011 and decree dated 18.6.2013 by this Court, the petitioner was not served with any fresh notice and it was not in the knowledge of the petitioner, that any auction proceedings were being carried on by the learned Banking Court. With regard to the objection raised on behalf of the respondents, that the instant petition was not maintainable as a remedy by way of appeal is provided under the Financial Institution Recovery Ordinance, 2001 ("Ordinance, 2001), the learned Counsel contended that this Court has vide discretionary and inherent powers to convert the instant petition into an appeal under the Ordinance, 2001. In support of his contention the learned Counsel has relied, upon the case of Khursheed Begum and others vs: Inam-ur-Rehman Khan and others (PLD 2009 SC 552), Brig. (Retd) Mazhar-ul-Haq and another vs. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706), Mst. Zainab Bibi vs. Allied Bank of Pakistan Limited and others (2003 YLR 3274), Mirza Munawar Baig and 5 others vs. Bank Al-Falah Limited and 2 others (2007 YLR 126), M/s. Ripple Jewelers (Pvt.) Limited us. First Women Bank Limited (2003 CLD 1318), Muhammad Attique vs. Jami Limited and others (PLD 2010 SC 993), Mrs. Shahida Saleem and another vs. Habib Credit and Exchange Bank Limited and 4 others (2001 CLC 126), Messrs Lanvin Traders, Karachi vs. Presiding Officer, Banking Court No, 2, Karachi and others (2013 CLD 1581), Syed Ghazanfar Hussain through Legal heirs others vs. Nooruddin and others (2011 CLC 1303), Muhammad Hashim vs. Presiding Officer, Special Banking Court, Karachi (Offences, in Banks) and 7 others (2007 YLR 2651), Ms. Rahim Iqbal vs. Banking Court No, II & others (2008 CLD 338) and Mst. Ghulam Sakeena vs. Bashir Ahmed and others (2000 CLC 334)
4. On the other hand Mr. Ijaz Ahmed Zahid learned Counsel for Respondent No 2 ("Bank") contended that the petitioner was all along on notice before the Banking Court, therefore the objection that no notice was served upon the petitioner is baseless and without any supporting material on record.
Learned Counsel further contended that an amended Execution Application was filed by.
Respondent No, 2, after passing of the Order in appeal by this Court, which has been placed on record through statement dated 20.3.2014. Learned Counsel also, referred to diary sheet of the Banking Court dated 21.8.2013 in which the presence of the junior Counsel/Associate of the Counsel for the judgment debtor is recorded and the adjournment sought by the petitioner's Counsel was granted till 27.8.2013 for hearing of application under Order XXI Rule 66, CPC. Learned Counsel further contended that the proclamation of sale was duly carried out by the learned Banking Court and was served upon all the relevant and necessary parties as per the record of the Banking Court, therefore the objection of the petitioner in this regard is uncalled for. Learned Counsel further contended ,that the presence of the petitioner's Counsel is reflected in the diary sheet dated 21.8.2013 which is a matter of judicial record and a presumption lies in favor of the correctness of such judicial record. Learned Counsel also contended that previously the terms and conditions of the sale stood settled in all respects, and it was to be modified only to the extent of the judgment dated 20.11.2011 and decree dated 8.6.2013 by this Court in appeal. Per learned Counsel the same was accordingly done by filing of the amended Execution Application, whereafter notice to all concerned was issued, however the petitioner itself chose not to appear and seek adjournments after adjournments, therefore the objection with regard to notice not being served upon the petitioner is totally misconceived.
' Learned Counsel also referred to order dated 23.10.2013 passed by the Banking Court wherein the terms of sale under Order XXI Rule 66, CPC were settled in terms of the modified decree dated 18.6.2013 passed by this Court. Learned Counsel next contended that since the petitioner was in knowledge of the pending execution proceedings, therefore the learned Banking Court was not required to issue notice of each and every date to the petitioner, as the petitioner was already being represented through an Advocate, and instead they should have proceeded with the matter, rather than expecting a fresh notice by the learned Banking Court. Learned Counsel further submitted that at least four valuations were carried out in respect of said property and since the said property was also mortgaged in Suit No, 43 of 2003 (Execution No, 22 of 2006) before the learned Banking Court No, III, at Karachi, a valuation was carried out valuation on 18.12.2012, wherein the forced sale value was prescribed as Rs, 3.2 million by M/s. Joseph Lobo (Pvt.) Limited and such valuation was never objected to by the petitioner, therefore the contention of the learned Counsel for petitioner that the auction was carried out on the basis of a valuation dated 8.8.2011 is not correct. Learned Counsel further contended that in the valuation report dated 18.12.2012, the evaluator has observed that the condition of the property is in a very bad shape and more over access to the said property is also not easily approachable at present, and cannot be compared with other properties in the vicinity, therefore the forced sale value of Rs, 3.4, Million was justified which is also reflected from the fact that only one bid was received in respect of the said property.
Learned Counsel vehemently argued that the instant petition was neither maintainable, nor it could be converted into an appeal as the same was not also available in the first place. Learned Counsel submitted that no objections to application under Order XXI Rule 66, CPC were filed by the petitioner, therefore no appeal is provided to the petitioner as such question of conversion of the instant petition into an appeal does not arise. Learned Counsel lastly contended that even otherwise the alternate remedy of appeal had become time barred and the instant petition is entirely based on ascertainment of facts for which this Court had no jurisdiction under Article 199 of the Constitution to resolve such factual aspects of the case, therefore the instant petition is liable to be dismissed.
5. Mr. S. M. Kazim Hussain learned Counsel for auction purchaser in addition to adopting the arguments put forth by the learned Counsel for Respondent No, 2, contended that the auction purchaser had lawfully purchased the property in auction and the petitioners are misrepresenting certain facts before this Court, as they have all along appeared before the learned Banking Court and in fact had failed to avail the alternate remedy of appeal and have not come with before this Court with clean hands, therefore no indulgence could be given to them. Learned Counsel submitted that the auction was carried out on 28.11.2013, whereas the instant petition has been filed on 28.1.2014, which is hopelessly barred by time, as the limitation starts from the date the hammer falls and not from the date of confirmation of sale. In support of his contention learned Counsel relied upon the case of Azam Wazir khan vs.'M/s. Industrial Development Bank Of Pakistan and others (2013 CLD 974), Nazir Cotton Mills vs. State Bank of Pakistan and others (2007 CLD 1642), Mumtaz-ud-Din Feroze vs. Shaikh Iftikhar Adil & others (2009 CLD 594), M/s. Chawla International vs. Habib Bank Ltd. And others (2003 CLD 956), Mst. Noor Khatoon and others vs. Habib Bank Ltd.
And another (2013 CLC 702), M/s. Irisma International & 3 others vs. United Bank Limited and another (2006 CLD 832), Mukhtar Ahmed vs. Mls. United Bank Limited and another (2013 CLD 841), M/s. Ashraf Agro and others vs. Habib Bank Limited (2008 CLD 449), M/s. United Bank Ltd. Vs. Mst.
Asma Zafarul Hassan (1980 CLC 565), M/s. Kayjay Industries Ltd vs M/s. Asnew Drums (Pvt.) Ltd. And others (AIR 1974 SC 1331 Bombay), Muhammad Ikhlaq Memon vs Zakaria Ghani and others (PLD 2005 SC 819), Pakistan Industrial Credit & Investment Corporation Ltd vs Shahdin Limited (2001 CLC 1267), Mst. Asma Zafar Ul Hassan vs. United Bank Ltd and another (1981 SCMR 108), Lilaram vs Ghulam Ali @ Essa through legal heirs and others (1991 SCMR 932), Bandu Hari vs Bhagya Laxman and others (AIR 1954 Bombay 114), Narayan Purushottam Bansod vs Ramchandra Mudgal Ji Choudharkar and others (AIR (35) 1984 Nagpur 177), P.Q. Chemicals vs A.W Brothers and others (2005 CLD 169), Habib Bank Ltd us M/s. Ajma Corporation and others (2000 CLC 1425), Muhammad Moin vs State Bank of Pakistan and others (2009 CLD 899), M/s. Unicorn Enterprises vs Banking Court No, 5 and 2 others (2004 CLD 1452), Muhammad Rafiq vs Federation of Pakistan and 2 others (2013 CLD 1679), Ghulam Mustafa Bughio and another vs Judge Banking Court No, 4, Karachi (2006 CLD 528), Ghulam Rasool Bhatti vs Judge Banking Court No, 4, Karachi (2007 CLD 1578), M/s. UBL vs Banking Court No, IV, Lahore and others (2004 CLD 1114), Muhammad Rafi and another vs Muhammad Ashfaq, Civil Judge, Hasilpur & others (1994 SCMR 2301), Muhammad Abbasi vs SHO Bhara Kahu & 7 others (PLD 2010 SC 969).
6. We have heard all the learned Counsel and have perused the record with their assistance. By consent the instant petition is being finally disposed of at Katcha Peshi stage.
7: It appears that primarily the petitioner has challenged the notice for writ of possession dated 09.01.2014 and has based the issuance of said writ of possession as the cause of action for filing the instant petition. The case of the petitioner appears to be that after passing of the amended decree dated 18.6.2013 in appeal by this Court; the petitioner was not in knowledge of any proceedings of execution being proceeded with, by the learned Banking Court, therefore the mandatory requirement of Order XXI Rules 64 & 66, CPC has been violated, hence the entire proceedings of auction and confirmation of sale are illegal and liable to be set aside. The other contention which has been raised on behalf of the petitioner is, that the property has been auctioned on the basis of a valuation report which was carried out in August 2011, whereas the auction was conducted in November 2013, and in between this period the prices of the property have appreciated to an alarming extent; therefore the reserved price fixed by the learned Banking Court was not correct and the auction carried out on the basis of such valuation cannot be sustained. Though several grounds have been raised by the learned Counsel for the petitioner while arguing the instant petition, however from the perusal of the pleadings, it appears that. The learned. Counsel for petitioner has argued its case much beyond such pleadings as none of these objections, except with regard to the valuation report and the alleged non-compliance of the provisions of Order XXI Rule 66, CPC were raised through the instant petition. In fact at the time of passing of the interim order in this matter, these two contentions were raised on behalf of the petitioner which have also been recorded in the said order dated 28.1.2014.
8. Insofar as the issue of valuation is concerned, we have been assisted by the learned Counsel for Respondent No, 2, and with which we tend to agree, that a comprehensive valuation was carried out in December 2012 as against the earlier valuation carried out in August 2011. The forced sale value in both these valuations are more or less the same, rather the forced sale value in the year 2011 was Rs, 3.6 Million, whereas the forced sale value in December 2012 was Rs, 3.2 Million, therefore the objection raised by the learned Counsel for the petitioner, that the auction has been carried out on the basis of a valuation conducted in August, 2011 is not correct as subsequent to such report of valuation, another valuation was on record before the learned Banking Court on the basis of which the auction of the said property has been carried out. Hence the said objection is misconceived and cannot be appreciated by this Court on the basis of the material available on record. Insofar as the contention to the effect that no notice under Order XXI Rule 66, CPC was served upon the petitioner is concerned, we have gone through the diary sheet of the learned Baking Court available at page 189 of the file, and have noticed that on 21.8.2013 the associate of the petitioner's Counsel was present and had received copy of the amended Execution Application filed by Respondent No, 2 in compliance of the decree dated 18.06.2013 passed in appeal by this Court. It has been also observed by the learned Banking Court in the said diary sheet that amended/modified terms of sale of the mortgaged property is required to be done and for such modification and amended sale of terms the matter was adjourned to 12.9.2013. On 12.9.2013 none was present on behalf of the petitioner and in the interest of justice the matter was adjourned to 3.10.2013. On 3.10.2013 again none was present on behalf of the petitioner and once again in the.
Interest of justice one more chance was given to the petitioner and the matter was adjourned to 23.10.2013 for the same purpose. On 23.10.2013 again none was present for the petitioner and the following order was passed by the learned Banking Court: "Advocate for Decree Holder is present. None present from Defendant/Judgment Debtor side.
Terms and conditions are settled. Issue sale proclamation of mortgaged properties. Put off to 28.11.2013 for Nazir report."
9. Thereafter, the learned Banking Court proceeded with the auction proceedings and on 28.11.2013 the bid filed by auction purchaser was received and on 6.1.2014 the sale was confirmed by the learned Banking Court. From the perusal of the diary sheet it appears that the petitioner was all along in the knowledge of the Execution proceedings as well as filing of amended execution application by the Respondent No, 2 after passing of modified decree dated 18.6.2013 by this Court and in fact had received the copy of the amended Execution application on 21.8.2013. Thereafter the petitioner had chosen by himself not to proceed or participate in the proceedings or to have filed any objections or any other application before the learned Banking Court, with, regard to the sale and auction of the said property. It is an admitted position that the petitioner had not filed any application under Order XXI Rule 89 or 90, CPC for setting aside of the auction/sale of the said property. The case of the petitioner it appears is not of setting aside of sale, but merely on the premise that the valuation has not been properly carried out and notice under Order XXI Rule 66 has not been served upon. Such factual assertion of the petitioner is not supported by the record of the Banking Court placed before us and the petitioner has failed to bring on record anything to the contrary. Now it does not lie in the mouth of the petitioner to come before this Court and raise objections with regard to the noncompliance of any of the procedure and specially of Order XXI Rule 66, CPC. The conduct of the petitioner before the learned Banking Court had been such that any indulgence at this stage of the proceedings could not be given by this Court, on the basis of the objections as raised aforesaid on behalf of the petitioner. It is also a settled proposition that sanctity and presumption of correctness is attached to the judicial record. Learned Counsel for the petitioner has not been able to satisfactorily controvert such position, except arguing that none had appeared on behalf of the petitioner on 21.8.2013. Such contention and or line of arguments cannot be accepted by this Court merely on the assertion of the petitioner without having any supporting material on record. This Court in its Constitutional jurisdiction cannot look into such facts of the case and is neither in a position to alter any such factual position.
10. Though the learned Counsel for petitioner has referred to various judgments in support of his contention but we have noticed that none of these judgments as referred to, by the learned Counsel for the petitioner are relevant in the given facts and circumstances of the instant case.
Here the petitioner's case as discussed above is based only on two grounds; one is the lesser valuation of the property or the valuation being carried out much prior to the conduct of the auction proceeding; second being the non-compliance of Order XXI Rule 66, CPC. We have already answered both these objections as aforesaid, therefore the judgments so referred by the learned Counsel for the petitioner cannot be considered as they are of no help to the case of the petitioner.
11. In addition to this the learned. Counsel for the petitioner has forcefully relied upon the case of Lanvin Traders (Supra) to contend that the petitioner's case is fully covered by the said judgment of the Honorable Supreme Court and the controversy in like matters has been put to rest, as such the instant petition is liable to be allowed on the basis of the said judgment. We have perused the said judgment of the Honorable Supreme Court in the case of Lanvin Traders (Supra) and in our opinion the ratio of the said judgment is not applicable to the facts of the instant petition as the price fetched in the instant matter is more than the decretal amount; the terms of sale were properly settled by the Banking Court in terms of Order XXI Rules 64 & 66.CPC, wherein the amount of. Decree, market price and Forced Sale Value were mentioned hence substantial compliance of law was done; neither any enhanced offer was ever received nor the petitioner had given any offer nor had brought any other buyer or bidder for the purchase of the said property. In view of such admitted facts in our view the said judgment is of no help to the case of the petitioner as the facts of the petitioner's case are entirely and materially different from the case of Lanvin Traders (Supra) which had prevailed upon the Honorable Supreme Court to set aside the auction/sale of the property in that matter.
11. Since we' are of the opinion that the instant petition is not maintainable even on merits of the case therefore we need not answer the objection as to .Whether the instant petition can be converted into an appeal or not as such exercise would be a futile one.
12. In view of hereinabove, we are of the opinion that the petitioner has failed to make out any case of indulgence from this Court; consequently the instant petition is dismissed with all pending applications(s). Office is directed to send a copy of this order immediately to the Banking Court No, II at Karachi further proceedings in the matter in accordance with law.
13. Petition stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.