NADEEM AKHTAR, J.---1 & 4. The Nazir's report dated 17.09.2015 is taken on record subject to all just exceptions. Record shows that C.M.A. No.5356/2012 filed by the plaintiff for appointment of a surveyor/valuator to ascertain the market value and forced sale value of the hypothecated goods, is still pending. Learned counsel for the plaintiff concedes that this application has become infructuous in view of the order passed on 25.08.2015. Accordingly, with the consent of the learned counsel C.M.A. No.5356/2012 is disposed of as having become infructuous.
2. This application has been filed by the plaintiff under section 16 of the Ordinance of 2001 (the Ordinance). In paragraph 11 of the plaint, the plaintiff has specifically pleaded that the letters of hypothecation described therein were executed in its favour by defendant No.1 in order to secure the finance facilities which are the subject matter of this Suit. The application is pending since 22.08.2011, but no counter affidavit or objections have been filed by any of the defendants. It may be noted that in paragraph 8 of their application for leave to defend, the defendants have admitted the execution of the said letters of hypothecation by claiming that their signatures thereon were obtained by the plaintiff when the same were blank. The effect of execution of blank documents, if any, shall be decided at the time of hearing of the defendants application for leave to defend. The fact of the matter is that they have not denied their signatures on any of the letters of hypothecation.
' Under subsection (1) of 16 of the Ordinance, where the Suit filed by a financial institution is for the recovery of any amount through the sale of any property which is mortgaged, pledged, hypothecated, assigned, or otherwise charged, or is the subject of any obligation in favour of the financial institution as security for finance, the Banking Court may, on an application by the financial institution, with a view to preventing such property from being transferred, alienated, encumbered, wasted or otherwise dealt with in a manner which is likely to impair or prejudice the security in favour of the financial institution, or otherwise in the interest of justice, may (a) restrain the customer and any other concerned person from transferring, alienating, parting with possession or otherwise encumbering, charging, disposing, or dealing with the property in any manner, (b) attach such property, or (c) transfer the possession thereof to the financial institution or appoint one or more receivers in respect thereof on such terms and conditions as it may deem fit. Subsection (4) of section 16 ibid further provides that the Banking Court shall have powers under Order XXXVIII, Rules 5 and 6, C.P.C. to attach before judgment any of the properties described in subsection (1) ibid. ' In my humble opinion, Section 16 of the Ordinance cannot be looked into or applied in isolation in view of section 23 of the Ordinance, which provides that pending final decision of the Suit filed by the financial institution under the Ordinance in which summons under section 9(5) of the Ordinance have been published, no customer shall, without the prior written permission of the Banking Court, transfer, alienate, encumber, remove or part with the possession of any of his asset or property furnished to the financial institution as security by way of mortgage, pledge, hypothecation, charge, lien or otherwise ; and, any such transfer, alienation, encumbrance or other disposition by the customer in violation of section 23 ibid shall be void and of no legal effect. Thus, while deciding an application under section 16 ibid, the Banking Court must also keep in mind the mandatory provisions of section 23 ibid. ' The defendants are duty-bound under section 23 ibid not to transfer, alienate, encumber, remove or part with the possession of any of the assets or properties of defendant No.1 furnished to the plaintiff as security by way of hypothecation, without the prior written permission of the Banking Court. Even otherwise, it is the duty of the parties to ensure that the hypothecated assets are not wasted or destroyed during the pendency of a Suit in which the same are the subject matter, and it is duty of the Banking Court to enforce such duty of the parties. In view of the above and also as the defendants have not disputed the execution of any of the letters of hypothecation and they have not filed any counter affidavit or objections to oppose this application, this application is allowed as prayed.
3. Mr. Amir Ali advocate holding brief for the learned counsel for the defendants, requests for adjournment. This application for leave to defend filed by the defendants is pending since 08.10.2011. No valid justification or ground has been stated by the learned counsel for seeking adjournment. In the interest of justice, last and final opportunity is granted to the defendants to argue this application on the next date, failing which the application shall either be dismissed for non-prosecution or will be decided with the assistance of the learned counsel for the plaintiff and on the basis of the material available on record. Mr. Amir Ali advocate undertakes to communicate this order and the next date of hearing to the learned counsel for the defendants. At his request, adjourned to 09.10.2015.