1. ' Notice was ordered by me to be sent to the respondents in this case. It appears that notice has been duly served on respondents Nos.2 to 5 but as far as Mr. S. Ahmad Farooqui is concerned, notice to him has been returned unserved. However, Mr. Ahsan Zaheer Rizvi Advocate has pointed out that Mr. S. Ahmed Farooqui does not represent the respondent No,1 any longer and now Mr. Rizvi appears on his behalf. I am, therefore, satisfied that all the respondents have been duly served, although today none has appeared on behalf of the respondents Nos.2 to 5.
1. C.M.A. No,498/1989: ' This is an application under Order 13, Rule 2, C.P.C. Whereby the petitioner seeks to bring some additional documents on record of the case. Learned counsel state that admission and denial in respect of the additional documents now sought to be filed has already taken place. Under the circumstances, the documents are taken on record. The CMA stands disposed of. C.MA. 3072/1987: ' This application, has been filed by M/s. Shaikh Abdul Haq and Sons (Private) Ltd., Burewala, District Vehari (interveners). According to the interveners, they are in occupation of the spinning unit belonging to the respondent No,1 as lessees thereof. By consent, it is ordered that the intervenors shall continue to be in possession of the said unit subject to the final order which may be passed hereafter. It is further directed that the intervenors may deposit rent for the premises/equipment, etc. With the Nazir of the Court till such time as they remain in possession of the property. J.M.
2. No,56/87:
3. This application has been filed under section 39 of the I.D.B.P. Ordinance.
3. ' Briefly stated, the facts of the case are that, on 12-7-1986 the respondent No,1 had been granted foreign currency loan of $ 43,852 and a - further loan of Pak Rs,4,39,000 for import of machinery from the 'off-loaded cargo, of East Pakistan made available with the petitioner. The respondent was also granted a local currency loan of Rs,13,21,000 for purchase of locally fabricated machinery as under:- "(a) Rs,3,78,000 as IDBP's normal loan.
(b) Rs,9,43,000 under SBP Scheme for purchase of locally fabricated machinery."
4. Interest on the loan payable by the respondent No,1 was as follows:-
(i) on Rs,3,78,000 at % above Bank Rate subject to a minimum of 8.1/2% p.a.
(ii) on 9,43,000 at 1% below the IDBP's lowest foreign currency lending rate then at 10% per annum.
(iii) additional interest by way of liquidation damages at 4% per annum payable to the petitioners on the instalments of principal of loan, interest commission and any other costs charged and expenses not paid when due and
(iv) all admissible charges under the rules."
5. ' As security for repayment of the said loan, the respondent No,1 agreed to create a mortgage in future on its property consisting of plot of land admeasuring 185 Kanals bearing Khata No,74/68, Khatoni Nos.213 to 222, situated in village Nowshera, Tehsil and District Bahawalpur alongwith all the buildings, factories, workshops, structures etc., standing thereon.
6. ' Thereafter, the respondent No,1 defaulted in repayment of the loan and its outstandings on 9th June, 1986 stood at Rs,14,40,415.87. The respondent No,1 was called upon to clear its overdues by letter of the same date but without any response. The petitioners, consequently recalled the loan under the provisions of section 38 of the I.D.B.P. Ordinance through their Advocates' letter, dated 22nd April, 1987 (Annexure '0), and thereafter, filed the present petition before this Court.
7. ' It may be pointed out that during the pendency of the proceedings the respondent No,1 filed an application under Order 7, Rule 11, C.P.C. Calling in question the territorial jurisdiction of this Court to try the present petition but the same was dismissed vide order, dated 27-7-1987. Thereafter, the respondent filed H.C. Appeal (No,139/87) which was disposed of with the observations that the question regarding the territorial jurisdiction of this Court could be determined after recording of evidence in the case.
8. ' Thereafter, no oral evidence was led by the parties and reliance has been placed only on documentary evidence respectively filed by the parties.
9. ' The following consent issues were framed on 13th March, 1989 by the Court:- "(1) Whether this Hon'ble Court has territorial jurisdiction to entertain the above-titled proceedings?
(2) Whether the petitioners are entitled to require the immediate repayment of the loan granted to the Respondent No,1 ?
(3) Whether the petitioners are entitled to any of the reliefs prayed for in paragraph 20 of the petition and if so, to what extent?
(4) What should the final order be ?"
10. As far as first issue is concerned, the same has not been pressed by Mr. Ahsan Zaheer Rizvi, learned counsel for the respondent No,1 as after filing of the additional documents by the petitioner it has become clear that the loan was disbursed by the petitioner partly at Karachi, which, according to the provision of section 39 of the I.D.B.P. Ordinance, gives jurisdiction to this Court to hear the present petition. In view of the concession made by Mr. Ahsan Zaheer Rizvi, I need not dwell further on this issue.
11. I now turn to issue No,2 which requires reference to section 38 of the I.D.B.P. Ordinance. This section indicates that under certain conditions, the Bank may, by notice require an Industrial concern or any person to which it has granted any loan to forthwith repay the loan. One of the conditions enumerated in section 38 due to non satisfaction of which loan can be recalled is that:- "(a) ..........
(b) the concern has failed to comply with the terms of an agreement with the Bank in the matter of the loan; or."
12. ' Admittedly, according to the loan agreement, the loan was repayable to the petitioner in accordance with the Schedule of repayment fixed by the petitioner themselves, but no compliance had been made therewith by the respondent No,l. Consequently, the petitioners were entitled to recall the payment of loan and avail the remedies as provided in section 39(1) of the I.D.B.P.
13. Ordinance. The section reads as under:-- "39. Special provisions for enforcement of claim by the Bank:
(1) Where the Bank becomes entitled to require the immediate payment of any loan by reason of the breach of any condition of any agreement between the bank and an Industrial concern to which the loan has been granted or any person liable for repayment of that loan, or where an Industrial concern to which any loan has been granted or any person liable for repayment of that loan fails to repay the loan in terms thereof or in compliance with the notice under section 38, an officer of the bank, generally or specially authorised by the Board in this behalf, may apply to the District Judge within the local limits of whose jurisdiction the concern carries on the whole or a part of its business, or the office or branch of the Bank from which the loan was disbursed is situated, for one or more of the following reliefs, namely:-
(a) an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Bank as security for the loan and any other properties, disclosed or undisclosed, of the industrial concern or the properties, disclosed or undisclosed of persons liable for the repayment of the loan, including guarantors; or
(b) an order for the transfer for the management of the Industrial concern to the bank or its nominee, provided that when such management is so transferred to the Bank, the Bank shall be deemed to be the agent of the industrial concern and shall manage the industrial concern on its behalf and all actions taken by the Bank on such transfer shall be deemed to be those of the industrial concern; or
(c) an injunction ad interim where there is apprehension that machinery or equipment may be removed from the premises of the concern without the permission of the Board."
14. ' Consequently, sections 38 and 39 could be invoked by the petitioner, and issue No,2 is answered in the affirmative.
15. Turning now to issue No,3, it may be pointed out that in case of breach of any of the conditions of the repayment of loan the Bank under section 39(1) of the said Ordinance becomes entitled to any of the reliefs enumerated in clauses (a), (b) and (c) of section 39, which has already been reproduced above. Relief claimed by the petitioners is for sale of the respondent No,1's property mortgaged with the Bank which has already been attached under section 39(3) of the I.D.B.P.
16. Ordinance and the relief claimed clearly falls within the purview of clause (a) of subsection (1) of section 39 of the I.D.B.P. Ordinance. Consequently, this issue is also decided in favour of the petitioner.
17. ' In the result, this petition is allowed and property of the respondent No,1/ lying under attachment may be sold in terms of section 39(7) of the I.D.B.P. Ordinance.
18. ' It was pointed out by Mr. Ahsan Zaheer Rizvi, that the respondent No,1 is prepared to repay a part of the loan to the petitioner, if reasonable time is allowed to it in this behalf. Both Mr. Ahsan Zaheer Rizvi and Mr. Anwar Mansoor Ahmed Khan agree that two months' time would be reasonable for the purpose. It is, therefore, further ordered, by consent, that this order shall not take effect until the expiry of two months from today and in case any compromise is reached between the petitioner and the respondent No,1 in respect of the repayments of the loan this order would be modified accordingly.