1. ' M/s. Azeem Food Industries (Pvt.) Limited (hereinafter referred to as "respondent No,1") who is a customer of Industrial Development Bank of Pakistan (hereinafter referred to as "I.D.B.P.") borrowed certain sums of money from I.D.B.P. For the purpose of their business inter alia, on execution of Demand Promissory Notes and Loan Documents and Personal Guarantees by their four directors.
2. (Respondent Nos.2 to 5). On the failure of Respondent No,1 to pay back the loan in accordance with the agreement between the parties, I.D.B.P. On 29-9-1996 filed this petition under section 39 of I.D.B.P. Ordinance, 1961 (hereinafter referred to as "the Ordinance"), inter alia, for recovery of Rs,118,905,078.54 by attachment and sale of the movable and immovable properties of respondent No,1 and also prayed for ad-interim attachment under section 39(3)(a) of the Ordinance. On 27-10- 1996 the Court passed order of interim attachment, preparation of an inventory and for issuance of a show-cause notice to the respondents under section 39(6) of the Ordinance. Respondents Nos.1 and 2 filed their reply to the show-cuase notice to which I.D.B.P. Filed a re-joinder.
3. ' On 18-2-1997 respondents Nos.1 and 2 filed an Application under section 151, C.P.C. To vacate/recall the ad-interim attachment order (C.M.A. No 282 of 1997. Parties filed and exchanged counter- affidavit and affidavits-in-rejoinder in relation thereto.
4. ' On 20-5-1997 respondent No,1 filed an application under section 10 read with section 151 (C.M.A.
5. No,1161 of 1997) requesting the Court to stay the proceedings as the matter in the present proceedings allegedly pertains to similar matter which is pending before this Hon`ble Court in Suit No,60 of 1995 filed by respondent No,1 and others against I.D.B.P., inter alia, for declaration and injunction, rendition of accounts and damages. The reason for stay given is that the parties in the said suit are the same and the cause of action is the same. The said suit is pending before in the banking jurisdiction of the High Court under the Banking Companies (Recovery of Loans, Advances, Credits and Finance) Act, 1977.
6. ' The main dispute according to the contesting Respondents relates to the accounts submitted by I.D.B.P. Which have been challenged in Suit No,60 of 1995 filed by them.
7. ' On 27-5-1997 respondents Nos.! And 2 filed an application under Order 39, Rules 1 and 2 read with section 151, C.P.C. To restrain I.D.B.P. From publishing any advertisement in any newspaper or inviting bids for the sale of the factory of Respondent No,1 until the decision of the petition (C.M.A. No,1152 of 1999). In respect of this application also parties filed and exchanged counter-affidavits and affidavit-in-rejoinder.
8. ' I have heard the arguments of the learned counsel and my conclusions in respect of the same are as follows: ' C.M.A. No,1161 of 1997.
9. ' In support of his submission to stay the proceedings, Mr. Ansari relied upon PLD 1997 Karachi 62; PLD 1993 Karachi 107 and PLD 1987 Karachi 102. I-16 further contended that if all ingrediences, of section 10, C.P.C. Do not exist the Court can exercise power under section 151, C.P.C. To stay the proceedings as laid down in PLD 1971 Dacca 286. I am afraid none of these judgments can be applied to the facts of the present case as there are other judgments on the point in issue wherein it has been held that the proceedings under the I.D.B.P. Ordinance, 1961 are not in the nature of a civil suit for recovery of money. According to the said judgments proceedings under the I.D.B.P.
10. Ordinance are a special type of proceedings provided under a special law and therefore, the provisions of section 10 C.P.C. Would not be attracted in a situation like the present one (1984 CLC 3189). In view of this position, the application is dismissed with costs of Rs,5,000.
11. ' C.M.A. No,1182 of 1997.
12. ' As regards the application of respondents Nos.1 and 2 to restrain I.D.B.P. From publishing any advertisement about the Company's property in any newspaper is concerned Mr. I.A. Chundrigar, learned Advocate for I.D.B.P. Has given an undertaking that I.D.B.P. Shall not publish any advertisement in any newspaper until the decision of the petition. Consequently C.M.A. No,1182 of 1997 is disposed of in terms of the above undertaking. In view of the voluntary undertaking by I.D.B.P.
13. No costs are awarded.
14. ' C.M.A. No,282 of 1997.
15. ' As regards the application to recall the ad interim order of attachment, Mr. Ansari submitted that the Company's application for restructuring of the loan under Circular No,19 of 1997 is pending before the State Bank of Pakistan (SBP) and therefore, final order should not be passed until such application has been decided by the State Bank of Pakistan. The other objection taken by Mr. Ansari is that the Company admits that only a sum of Rs,75.54 Millions is outstanding as of 29-9-1996 and not the amount claimed which includes mark-up on mark-up. The defences taken by the respondents Nos.1 and 2 are general in nature and no specific error or entry in the statement of account has been specifically disputed. A general denial is improper (PLD 1985 Lah. 117). Mr. Ansari has not placed any document to show that he has made any down payment as required by the Circular referred to above and that his application for restructuring has been approved by S.B.P.
16. ' According to Mr. Ansari the company had borrowed Rs,46.87 Million only while the I.D.B.P. Has filed a suit for recovery of Rs,118,905,078.54. He has admitted that the company owes Rs,75.54 Million as of 29-9-1996 which the company admittedly has not been able to pay.
17. ' In view of the above admission also the application for recalling the order of attachment is liable to be dismissed. No other argument was advanced by the learned counsel for respondents Nos.1 and 2 in support of the application which is accordingly dismissed with costs of Rs,5,000.
18. Main Application:- ' Respondents Nos.1 and 2 in their objections to the main petition, in addition to the legal pleas takes in C.M.A. No,1161 of 097 and C.M.A. No,1182 of 1997, have taken the plea that the petition is not maintainable under I.D.B.P. Ordinance as the petitioner is a banking company, that due to prevailing law and order situation the agreement between the parties is hit by section 57 of the Contract Act, that the respondent C.M.A. No,1161 of 1997 and 1182 of 1997 have already been dealt with above and do not require any discussion. The arguments with regard to the non-applicability of .I.D.B.P. Ordinance are frivolous ones and under the provisions of the said Ordinance I.D.B.P. Is empowered to file a petition in the High Court for attachment of borrower's property and recovery of its dues. The arguments with regard to the applicability of section 56 Contract Act are misconceived as the loan agreement between the parties was not for doing any impossible act or the act of giving the loan and paying it back did not become impossible after its execution. Further, the learned counsel did not produce any evidence to support this argument which is accordingly rejected. The allegations made, with regard to the accounts are too general and vague in nature and are accordingly rejected. The respondents have not been able to show any reasonable cause as to why the interim order of attachment be not made absolute and the injunction confirmed.
19. Accordingly the objections of respondents Nos.1 and 2 filed against the order of attachment are hereby rejected and the order of interim attachment is made absolute.
20. ' In view of the above discussion the petition is granted as prayed with additional cost of Rs,5,000 under section 35-A, C.P.C. Official Assignee is directed to dispose of properties in accordance with law. Attachment confirmed.