Through this writ petition orders of Banking Court No, 2, Multan (the Court) dated 10.10.2013 has been challenged whereby the application of respondent-Bank to deliver the possession of factory Shandar Vegetable & Ghee Mills was dismissed and also order dated 05.12.2013 whereby the application filed by defendants for release of mortgaged properties, deletion of their names from array of defendants and impleading the name of Respondent No, 4 instead as a party to the recovery suit pending adjudication before the Court was dismissed.
2. Brief facts of the case are that the petitioner company had obtained loan in the year 1996-1997 against the mortgaged of its eight properties which included Vegetable Ghee Mill factory along with building machinery, land measuring 48 Kanals situated at Mauza Kotla Rehman Ali, Bahawalpur Road, Multan, belonging to it. Respondent No 2-Bank filed a suit for recovery of Rs, 3,98,80,241/- along with prevailing rate of mark-up till realization, which is pending adjudication in Banking Court No, 2, Multan. The details provided by plaintiff are as under:-- "Sr. No. Nature of facility Amount of Limits in MillionOutstanding in Rs.
1. LLM 3,54,79,516/- Facility Rs. 26,380
2. Demand Finance Facility Rs. 3,887 Rs. 44,00,725/- Total Rs. 3,98,80,241/- Leave to defend has been granted to the petitioner.
1. The petitioner claimed that during the pendency of the suit, officers of the respondent-Bank introduced Respondent No, 4 as in investor who would pay the outstanding loan of the petitioner company if its aforementioned property is transferred to him. With the consent of the Bank, an agreement dated 21.04.2011 was entered into with Respondent No, 4 and power of attorney was also executed in his favour. According to the terms of the agreement, in lieu of transfer of property, Muhammad Saleem/Respondent No, 4 was to repay the loan outstanding against the company, but instead of making payment of loan to the respondent-Bank, Respondent No, 4 started removing machinery from the factory premises. As a consequences, an F.I.R Bearing No, 52/2012 dated 19.01.2012 was got registered by the petitioner against Respondent No, 4 with Police Station Basti Malook, Tehsil & District Multan.
2. On the basis of these facts the petitioner filed an application on 10.07.2012 for amendment of written statement which was dismissed or 26.09.2012. On 19.07.2013 the Bank filed application for delivery of possession of factory premises to the Bank. This application was dismissed on 10.10.2013.
The petitioner filed an application for release of mortgaged properties other than the factory premises, deletion of the names of the petitioner from array of defendants and instead impleading Respondent No, 4 as a defendant in the recovery suit. This application was dismissed on 05.12.2013.
The petitioner has now challenged the order dated 10.10.2013 and 05.12.2013 through this writ petition.
5. The petitioner argued that as the property was handed over to the Respondent No, 4 on the asking of respondent-Bank, therefore, the property be got recovered from Respondent No, 4 and handed over to the respondent Bank and furthermore that Muhammad Saleem, Respondent No, 4 be impleaded as a defendant in the recovery suit and also petitioner be deleted from the array of defendants. The respondent Bank and Respondent No, 4 are in connivance with each other and on one hand, deprived the petitioner company from the property owned by it and on the other hand, are demanding repayment of loan from him which falls in the realm of double jeopardy.
6. Conversely the learned counsel for the respondent Bank argued that it is clear from letter dated 2.11.2011 issued by the Bank that the agreement between the petitioner and Respondent No, 4 was not entered on the asking of the respondent Bank rather the Bank had clearly mentioned in the letter that "The Bank shall consider your offer for approval if you agree to making down payment of Rs, 12.00 M and the total repayment time of five years".
Subsequently as the petitioner got an F.I.R registered for misappropriating the property against the said respondent, hence, the Bank did not agree with the scheme entered into between the petitioner and Respondent No,
4. Learned counsel for Respondent No, 4 stated that he is still willing to abide by the terms of offer whereby Respondent No, 4 had agreed to pay the down payment of Rs, 12.00 million and remaining payment within five years.
7. Heard. Record perused.
8. As far as deleting the name Of the petitioner from the array of defendants and impleading Respondent No, 4 as defendant in the suit is concerned, it is clear from Section 2(c) read with Section .9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the relevant provision of the Ordinance are reproduced below) that recovery suit is a suit between the customer/borrower and the financial institute i,e,, Bank. Respondent No, 4 is not a customer rather the petitioner introduced him to repay its loan' but the scheme/ arrangement was not approved by the Bank.
Section 2(c) "customer" means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier"
Section 9. Procedure of Banking Courts.- "( 1) Where a customer of a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of financial institution as may be duly authorized in this behalf by power of attorney or otherwise.
(2) The plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers Books Evidence Act, 1891 (XVII of 1891), and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in sufficient numbers so that there is one set of copies for each defendant and one extra copy.
(3) The plaint, in the case of a suit for recovery instituted by a financial institution, shall specifically state.
(a) the amount of finance availed by the defendant from the financial institution; ( b ) the amounts paid by the defendant to the financial institution and the dates of payment; and
(c) the mount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit.
(4) The provisions of Section 10 of the Code of Civil Procedure, 1908 (Act V of 1908), shall have no application for and in relation to suits filed here under."
9. It has been noticed that active consent of the respondent-Bank to agree to make arrangement between petitioner and Respondent No, 4 is not available on the record. The letter dated 02.11.2011 only states that the Bank will consider offer for approval. Bank cannot be forced to accept the offer because basic ingredient for agreement/contract is free consent, which cannot be imposed upon a party. A person not a customer cannot be impleaded as a party to the recovery suit and any interest in the shape of right or liability of a third party may be determined during the execution proceedings. This view is also supported by the case law titled as National Bank of Pakistan versus Raj by International (Put) Limited through Liquidator and 3 others (2016 CLD 2190), NIB Bank Limited versus Ali Hamid Travels and 3 others (2013 CLD 613) & Muhammad Hanif versus NIB Bank Limited and 4 others (2013 CLD 627).
10. As far as recovery of the mortgaged property from Respondent No, 4 and delivery to the respondent-Bank is concerned, this aspect of the matter can also taken into consideration at the time when execution of decree, if any, is passed as a result of pending recovery suit before the Banking Court No,
2. The relief of release of mortgaged properties is pre-mature and not available at this stage. Besides both the order dated 10.10.2013 and 05.12.2013 are interlocutory in nature and as Section 22(6) provides no appeal, review or revision against the same entertaining constitutional petition without there being an illegality or jurisdictional defect would negate the purpose of law. For time being, I find no reason to set-aside the impugned orders dated 10.10.2013 and 05.12.2013 passed by Respondent No, 1.
11. For invoking constitutional jurisdiction of this Court vested in it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner is bound to show that the Court below has exercised the jurisdiction not vested in it by law or there is jurisdictional defect, misreading or non-reading of evidence through the orders impugned. Learned counsel for the petitioner could not show any such defect in the impugned orders through this writ petition nor I have seen any jurisdictional defect therein whereby the orders could have been declared as without lawful authority and of no legal effect.
12. For what has been discussed above, this writ petition being devoid of any force stands dismissed.