ORDER The above three appeals have been filed by the appellant, challenging the orders of the Chairman, Banking Tribunal No. II, Karachi dated 28.10.1997 in Executions Nos. 80 of 1994, 81 of 1994 and 77 of 1994.
2. The brief facts of the case requisite for the purpose of disposal of the above three appeals are that respondent No. 1, Muslim Commercial Bank (hereinafter referred to as the respondent Bank) filed three summary suits being Suit No. 246 of 1994 for recovery of Rs. 2,31,01,000; Suit No. 260 of 1994 for recovery of Rs. 3,14,30,329 and Suit No. 255 of 1994 for recovery of Rs. 17,17,39,000 against the appellants before the Banking Tribunal No. II, Karachi. The aforesaid suits were decreed on 29.9.1994 and the respondent Bank initiated execution proceedings before the Banking Tribunal No. II, Karachi.
3. ln execution No. 80 of 1994 pertaining to Suit No. 246 of 1994 and First Appeal No. 93 of 1996, the respondent Bank prayed for attachment and sale of bungalow on plot No. 8/11, 2nd Zamzama Street, Phase-V, Defence Housing Authority, measuring 1000 sq. yds. and bungalow No. 9-A/l, Khayaban-e- Shamsher, Phase-V, D.H.A. Karachi. The aforesaid properties were attached and ordered to be sold and sale proclamation in respect thereof was issued, in pursuance whereof Auction Commissioner Mr. M.A.M. Namazi started auction proceedings on 13.10.1996. The highest bid of Rs. 74,50,000 for property No. 1, I.E. bungalow No. 8/11, 2nd Zamzama Street, Phase V, DHA, was given by one Muhammad Sultan, but he did not deposit the earnest money and as such his bid was cancelled and at the request of the Decree-Holder/respondent Bank the said property was ordered to be auctioneered. Property No. 2 I.E. bungalow No. 9-A/l, Khayaban-e-Shamsher, fetched the besy bid Muhammad Zafar who deposited 1 /4th of the bid with the Auction Commissioner as per requirement of the law.
4. ln Execution No. 81 of 1994 pertaining to Suit No. 260 of 1994 and First Appeal No. 94 of 1996, the respondent bank/Decree-Holder had prayed for attachment and sale of office space on 6th floor in the building, known as Lakson Square, R.A. Lines, Sarwar Shaheed Road, measuring 9604 square feet and M/s. Assets Investment Bank made the highest bid of Rs. 1,25,00,000, which was accepted by the Auction Commissioner, Mr. M.A.M. Namazi and 1 /4th of the bid money was deposited by M/s. Assets Investment Bank with the Nazir of the concerned Courts.
5. ln Execution No. 77 of 1994 pertaining to Suit No. 255 of 1994 and First Appeal No. 95 of 1996, the respondent Bank/Decree-Holder had prayed for attachment and sale of two properties, being Plot No. 2/1-A, Block-1, Improvement Scheme No. 5, Clifton, measuring 804.67 square yards and Plot No. AC- 11, Block-4, Scheme No. 5 Clifton, Karachi, measuring 213/75 square yards and the highest bids secured for the aforesaid two properties were Rs. 68,00,000 for Plot No. 2/1-A, 'Block-I, Improvement Scheme No. 5, Clifton, which was given by A.A. Builders and Rs. 8,75,000 for plot No. AC-II, Block-4 Scheme No. 5, Clifton, which was given by one Muhammad Khalid. Both the bidders deposited 1 /4th of the bid price with the Nazir of the concerned Court and the sale of the aforesaid properties in favour of the respective bidders was confirmed.
6. Pre-admission notices were issued to the respondents and in pursuance thereof learned Advocates whose names have been mentioned hereinabove, made appearance on behalf of the respondents.
7. Mr. Khursheed A. Hashmi, learned counsel for the appellant vehemently attached the impugned orders of the learned Chairman, Banking Tribunal and submitted that the Banking Tribunal did not take into consideration the material objections raised by him on behalf of the appellant and also did not take into consideration the admitted violation of the law relating to the deposit of the 1/4th of the bid by way of earnest money, ln this connection he submitted that relevant to First 93 of 1996, the highest bidder did not deposit the 1 /4th of the bid price immediately with the Nazir of the Court and instead made payment thereof by way of a pay order and that too in the late hours of the night and further that all the auction purchasers paid balance of 75% beyond the stipulated period which was a clear violation of the provisions of Order 21, Rule 84, C.P.C, and on contravention of the above rule the sale was to be held as void and the property was to be re-auctioned forthwith. The contention advanced by Mr. Khursheed A. Hashmi merits no consideration, ln the first place this objection was not raised by him before the Banking Tribunal wherein his only objection was that on account of Chairman and Managing Director of the appellant, being in confinement the Judgment- Debtor could not contact the relevant parties and could not secure the presence of financially and monetarily well and strong parties to participate in the auction proceedings, as result of which the properties in dispute did not fetch proper prices and the bids made in respect of the properties were on the lower side resulting in loss to the Judgment-Debtor. Mr. Anwar Muhammad, learned counsel for the respondent Bank submitted that the failure of the auction purchaser to deposit 25% of the bid price in cash with the Auction Officer or any other officer of the Court on the spot was on account of the fact that Auction Commissioner had refused to accept cash and had directed the auction purchaser to make payment of the 25% of the bid money by way of pay order, which the auction purchaser complied with and in the circumstances, he could not be held to have breached or contravened the provisions of Order 21, Rule 84, C.P.C.
8. The contention of Mr. Khursheed A. Hashmi that after filing of the aforesaid suits, the F.I.A, had arrested Abdul Qadir Tawakkal and Muhammad Rafiq, Chairman and Managing Director respectively of the appellant who were taken and confined in Islamabad and the remaining Director of the appellant had undergone as their arrest was also being sought by the F.I.A., there was no responsible officer or person to publicise auction of the above properties in the proper and relevant quarters and forum so as to draw the attention of the interested parties, such as builders, property dealers, constructors etc. who would have made much higher bids in respect of the properties in dispute, is equally without substance and does not merit consideration. The sale' of the property in dispute was ordered after the sale proclamation had been published in a daily Newspaper and, therefore, the contention that proper publicity was not made for sale of the aforesaid properties is not correct. From perusal of the impugned orders in the aforesaid three Execution Applications, it transpires that Mr. Khursheed A. Hashmi had submitted application on 14- 10-1996, submitting therein that prices/moneys fatched in the auction in respect of the above properties in dispute was on very low side and requested for an opportunity to find out fresh/new purchasers who were prepared to pay more than the bid prices or in the alternative the appellant/Judgment-Debtor be given option to purchase the properties in dispute themselves at the highest or on the same prices which were bid by the auction purchaser. Such request was granted and time was given to the appellant/Judgment- Debtor till 23.10.1996 and on that date Mr. Khursheed A. Hashmi requested for some more time and the matter was again adjourned to 28- 10-1996 so as to enable the appellant/Judgment-Debtor to do the needful. On 28.10.1996 instead of making a report as to whether fresh/new purchasers were forthcoming to purchase the properties in dispute who were prepared to pay/bid higher prices or whether the appellant/Judgment-Debtor were themselves prepared to purchase the property in dispute, a statement was made that main Judgment-Debtors were in jail and, therefore, he could not establish any contact with them. The above application was dismissed on 28.10.1996 as the learned Chairman, Banking Tribunal-ll, Karachi opined that the prices/bids made by the auction purchasers in respect of the properties in dispute were not on the low side and further observed that it was within the knowledge of the appellant/Judgment-Debtor that the properties were going to be sold by way of auction and if they intended to purchase the properties in dispute themselves then there was nothing to prevent them from participating in the auction proceedings and offering the bids directly or indirectly. The learned Chairman was of the view that the application was nothing but a device to prolong and delay the confirmation of the auction sale proceedings and, accordingly, dismissed the application.
9. The learned advocates appearing on behalf of the respondent Bank and respondent No. 3 the auction purchaser vehemently opposed the arguments advanced by Mr. Khursheed A. Hashmi and submitted that the grounds raised by him in support of cancellation of the auction sale and for ordering a fresh auction in respect of the properties in dispute were not plausible and cogent and did not merit any consideration. They further submitted that the aforesaid appeals were nothing but merely an instrument for delaying and prolonging the finalization of the auction sales and by their such action the appellant/Judgment-Debtor was not only causing harassment and hardships to the bona fide purchasers of the properties in auction but were also depriving the respondent- bank from recovering its outstanding dues. The learned counsel for the above respondents fully supported the impugned orders of the Banking Tribunal No. II, Karachi in all the aforesaid three Execution applications, which are subject-matter of the above three appeals.
10. After taking into consideration the arguments advanced by the learned counsel for the above parties and perusing the relevant provisions of the law, we are unable to accept the contentions raised by Mr. Khursheed Hashmi and do not find any such illegality or irregularity having been committed during the auction sales which would call for interference in the auction proceedings and to cancel the above auction sales. Failure of the auction purchaser to deposit the 25% of the bid price with the Auction Commissioner immediately after acceptance of the bid and not making the payment in cash would not be sufficient to declare the auction sale of the disputed property as illegal. The deposit of 25% of the bid price by way of pay order and in late hours as well as payment of balance of 75% beyond the statutory period were violations of technical provision of law and technicalities are meant to aid and assist in the administration of justice and not to create obstacles and impediments, more-so, when no loss or prejudice had been caused to the Judgment-Debtor. Even otherwise, the failure of the auction purchaser to pay the 25% of the bid price in cash was due to the refusal of the Auction Commissioner to accept the amount in cash.
The contention with regard to the Chairman and the Managing Director of the Judgment-D confined in Prison as result of which proper publicity of the auction sale could not be made is equally without any substance. The Banking Tribunal, on the plea being raised before it, had provided opportunity to the Judgment-Debtor to bring new buyers who were willing to offer higher prices that the bids made in respect of the above properties but the judgment failed to procure any new or fresh buyer even in respect of any one of the aforesaid properties.
11. From the above discussions we are, of the view that all the three appeals are without any substance and merit no consideration. Accordingly, the same stand dismissed in limine.