1. SAJJAD ALI SHAH, J.---Through this appeal, the Appellants have called in question Order dated 15.11.2012, passed by the learned Single Judge of this Court, whereby the Respondents application (C.M.A. No, 8887/2011) under section 152, C.P.C. seeking correction in consent order dated 11.04.2011 was allowed.
2. Briefly, the Respondent Bank initiated recovery proceedings against the Appellants by filing a suit for recovery of Rs,110,055,071/- under Financial Institutions (Recovery of Finances) Ordinance 2001. The said suit on 11.03.2010 was listed for final disposal when following order was passed:- "11.03.2010 This is a suit for recovery under the Financial Institutions (Recovery of Finances) Ordinance, 2001.
3. Notices were issued to the Defendants through all modes, including publication but none has come forward to file leave to defend. Hence the suit has been fixed for final disposal.
4. Let a statement be filed showing the disbursed amount, repayments and SBP Penalty along with the supporting documents. Adjourned to 15.03.2010".
5. On 15.03.2010, Appellants/Defendants filed an application for adjournment while admitting the claim of the Respondent Bank which reads as follows:- "It is respectfully prayed that this Hon'ble may be pleased to adjourn the above suit for 15 (fifteen) days to enable the Defendants to settle the Plaintiff's claim in the above suit amicably outside the Court. The Defendants admit the Plaintiff's claim but want to finalize repayment schedule thereof with the Plaintiff".
6. Consequently the Court passed the following orders:- "15.03.2010 Defendants have filed statement that they have admitted the claim of the plaintiff and sought time for finalizing the repayment schedule.
7. Adjourned to 5.4.2010 within which time the parties shall come up with definite instructions, if any, with regard to the settlement".
8. On 05.04.2010, the Appellants failed to effect appearance and or to file any repayment schedule as promised, therefore, the Court, upon taking into consideration that the Appellant No, 1 's Chief Executive i,e. Appellant No,2 had admitted the liability, decreed the suit for Rs,112,205,918/- with cost of funds from the date of filing of the suit till its realization.
9. The Appellants thereafter on 07.05.2010 moved an application under section 10 of the Ordinance, 2001 which erroneously was treated and registered as Judicial Misc. No, 25 of 2010 'seeking setting aside of Judgment and Decree. In the said application, the appellant acknowledged his appearance in Court on 15.03.2010 and admission of respondent's claim. However, it was asserted that such acknowledgement of liability was on account of certain negotiations between the Appellants and Respondent Bank wherein the Respondent vide their letter dated 26.03.2010 agreed to restructure their liability and the Appellants on 01.04.2010 in compliance thereof had deposited a sum of Rs,375,000/-. The respondent in their counter-affidavit acknowledged that the appellant on 26.3.2010 had sent repayment schedule, however, they were requested to revise and ultimately appellant/judgment-debtor vide their letter dated 29.3.2010 submitted revised repayment schedule which was annexed with the application as Annexure "A". The record reflect that J.M. No, 25 of 2010 was disposed of on 23.09.2010 through following consent order:- "Mr. Mamnoon Hassan assures that the respondent will accommodate the applicants/JDs in respect of the execution of the application to be filed by the bank for clearing the dues of the bank.
10. Accordingly the applicants/JDs are directed to approach the bank within a period of one month of the filing of Execution Application by the bank for settling the terms of the compromise, whereafter same will be filed in the Execution Application. This order has been passed with the consent of the applicants as well as the counsel for the respondent. This Judicial Miscellaneous Application stands disposed off accordingly".
11. The record reflects that the appellant on 13.01.2011 filed application (C.M.A. No,684/2011 out of which this appeal has arisen). The appellant/Judgment Debtor in the said application while referring to order dated 23.9.2010 (as reproduced above) submitted that the Court had directed the parties for settling the terms of compromise, which till date have not been settled, therefore, the decree-holder Bank be directed to take a decision regarding settling the terms of compromise so that the referred order could be complied in letter and spirit. The respondent/decree-holder on 24.02.2011 filed counter-affidavit wherein it was asserted that the appellant/judgment-debtor on 15.3.2010 before the Court through written application had admitted their liability. It was further asserted that after admitting their liability before the Court appellant/judgment-debtor vide their letter dated 29.3.2010 (Annexure "B") submitted repayment/restructuring proposal. It was further submitted that thereafter the appellant/judgment-debtor on 18.10.2010 submitted another proposal (Annexure "C"), but since the proposal was inconsistent with their admission made in Court on 15.3.2010 and earlier proposal for repayment/restructuring dated 29.3.2010 (Annexure "B"), therefore, the same was declined. The said C.M.A. came up for orders and following order was passed:- "11 April 11.
(1) By consent of both the learned Counsel, this application is disposed off by directing the bank that it may honor its proposals contained in annexure "C" to the counter affidavit filed in reply to the C.M.A. No, 684/2011 filed in the execution application by the applicant."
12. Realizing the error in order dated 11.4.2011 respondent bank moved application under section 151, C.P.C.
13. (C.M.A. No,8887/2011) seeking correction of Annexure "C" in second line of the order to Annexure "B" which application was allowed through impugned order.
14. The prime contention of Mr. Mushtaq Memon was that the Court was not competent to modify the consent order dated 11.04.2011 (reproduced above), as according to the counsel, the bank had agreed to accept the respondent's proposal dated 18.10.2010 annexed as Annexure "C" to the counter-affidavit of the decree-holder Bank, therefore, the Court could not have changed accepted proposal given vide Annexure "C" into proposal vide Annexure "B" which was a totally different proposal. It was next contended that the impugned order does not even give any reason for directing such modification/ correction. According to the counsel, the order is bad and, therefore, is liable to be set aside.
15. On the other hand, Ms. Sofia Saeed Shah, counsel for the judgment-debtor, contended that the Decree Holder Bank had agreed as is evident from the counter-affidavit for restructuring the appellant's liability in terms of their proposal (first conveyed on 26.3.2010 to the Bank and subsequently modified and) conveyed vide letter dated 29.3.2010 which letter was annexed by the Bank with their counter-affidavit as Annexure "B" and in that very counter-affidavit Bank had mentioned that the appellant/judgment-debtor's proposal as contained in their letter dated 18.10.2010 (Annexure "C") was rejected, therefore, there was no question of advocate agreeing in Court to a proposal which the bank had already declined. According to the counsel, the proposal contained in Annexure "C" literally amounted to upsetting the entire decree and, therefore, was declined and such fact was mentioned in their counter-affidavit and, therefore, the correction was rightly made in the impugned order.
16. We have heard the learned counsel for the respective parties and perused the record of this case.
17. There is no cavil to the proposition pleaded by Mr. Mushtaq Memon that a consent order once passed cannot be recalled at the request of either party, nor a competent appeal or review would lie against such order, however, in our opinion a consent order is always open to correction if any error or omission is proved to the satisfaction of the Court and in our opinion following are the reasons to hold that the Court erroneously has mentioned Annexure "C" in its order dated 11.4.2011 instead of Annexure "B":- Vide order dated 11.4.2011 judgment-debtor's application was disposed of by directing the bank to honor its proposal contained in Annexure "C". To our dismay we have found that Annexure "C" is not the proposal of the bank but the borrower and its acceptance means setting aside of the decree. In fact this proposal Annexure "C" of the judgment-debtor was made on 18.10.2010 i,e. after six months of the decree and one month after their application under section 12 of Ordinance 2001 was disposed of.
18. In the counter-affidavit duly signed by the attorney of bank, in Para 4 it was specifically pleaded that the appellant/judgment debtor's proposal dated 18.10.2010 (Annexure "C") was declined.
19. The appellant's main contention in their application under section 12 of the Ordinance 2001 filed on 07.5.2010 was that the respondent/decree-holder had agreed for restructuring of their liability vide "Annexure B", in consequent whereof a cheque of Rs,375,000/- was given and therefore, suit could not have been decreed on 05.04.2010 and for this reason while the bank on 23.9.2010 when section 12 application was being disposed of assured to accommodate the judgment-debtor once the execution is filed.
20. Annexure "B" is a proposal of the appellant/judgment-debtor dated 29.3.2010 requesting for restructuring of the facilities and gives a schedule for repayment wherein the appellant/Judgment debtor agreed to pay the principal outstanding liability in quarterly installments of Rupees Five Million and payment of upfront markup of Rs,375,000/- and Rs,775,000/- and remaining markup in 18 monthly instalments, whereas Annexure "C" is a appellant/judgment-debtor's letter dated 18.10.2010 containing following proposals:
(a) That the accounts of the Bank regarding the loan of the company be reconciled and all unjustified adjustments in account of loan of Bank should be deleted/removed. The Bank may facilitate the Company and should freeze the loan at the position of July 2009.
21. The Bank may provide the opportunity to regain the confidence of the international clients/customers of the company since due to the decree passed in absential the customers/buyers are in fear conditions therefore the bank may provide two years time to convince the buyers. The payments be started from Dec. 2012, and the interest may not be charged by the Bank for the period of July 2009 to Dec. 2012.
22. The payments of R&D should be released.
(5) The acceptance of proposal contained in Annexure "C" requires setting aside of judgment and decree and re-determination of the appellant's liability and would also amount scraping of their admission of liability contained in application dated 15.3.2010 wherein respondent admitted the Bank's claim with the request of granting time for finalizing repayment schedule.
23. The record reflects that initially the grievance of petitioner was that pending request for rescheduling their liability the Bank has obtained a decree and this grievance was agitated and is reflected from their application under section 12 of the Ordinance 2001. At that juncture, according to their own request, appellant assured repayment of their liability in quarterly installment of Rupees Five Million each (Annexure "B") commencing from March 2011 and the hand written note of the bank on the said "Annexure B" reflect that the Bank had accepted such repayment schedule. However, thereafter the appellants did not even adhered to such proposal which was submitted by them after they took time from the Court for finalizing the repayment schedule and for this very reason counsel for the Decree Holder Bank on 23.09.2010 assured that the Respondent Bank will accommodate the Judgment Debtor when execution application is moved which assurance was recorded by the Court while disposing of the appellants' application under section 12 of the Ordinance as reproduced above. However, thereafter the appellants perhaps with the intention to wriggle out from the decree as well as its own rescheduling request moved another application (C.M.A. No,8887/2011) with a view to prolong the recovery proceedings on which Order dated 11.04,2011 was passed. In these circumstances, we are of the firm view that neither there was any acceptance from the bank in respect of "Annexure C" nor the Court could have lawfully directed the bank to act upon the proposal of appellant/judgment-debtor detailed in "Annexure C". The very order of the Court (directing the bank that it may honor its proposal contained in Annexure C) reflects that the order was passed without proper assistance or even going through the "Annexure C" as it was not the proposal of the bank which the Court could have directed to honor.
24. In these circumstances, the appeal is found merit less and is hereby dismissed.