' NAZIM HUSSAIN SIDDIQUI, J.---This appeal under section 39(ii) of the Industrial Development Bank of Pakistan Ordinance, 1961, hereinafter called the Ordinance, is directed against the order dated 24-4-1998 of learned Single Judge of this Court, whereby interim order of attachment dated 31-5- 1998 was made absolute and the Official Assignee was appointed as "Commissioner" to take over management and possession of the various properties of the appellants and to sell them for realization of the dues of the respondent amounting to Rs,44,086,049.15 with mark-up @ 22% from the date of institution of proceedings till payment with cost.
' The respondent M/s. Industrial Development Bank of Pakistan, filed J.M. No,122 of 1995 under section 39 of the Ordinance for recovery of Rs,44,086,049.15 against the appellants (1) M/s. Taufiq Textile Mills (Pvt.) Ltd., (2) Taufiqullah Shah, (3) Tanvirullah Shah (4) Faridullah Shah and (5) Mrs. Zahida Tanvir w/o Tanvirullah Shah. It is the case of the respondent-Bank that it granted to the appellant No,1 a local currency finance assistance in the sum of Rs,17.25 million on mark-up basis under SBP Scheme for purchase of local manufactured machinery for setting up a new weaving unit at Rahim Yar Khan and the respondent-Bank agreed in principle to purchase said machinery/equipment from appellant No,1 at an estimated price of Rs,17.25 million and simultaneously to resell it to the appellant No,1 at lump sum approximate price of Rs,39.691 million (net rebate of Rs,23.53 million) as per terms and conditions of sanctioned letter dated 28-6-1991.
Said financial assistance was repayable in 16 equal instalments of Rs,2.481 million each after two years from the date of disbursement of first instalment. As security for repayment, the appellants Nos.1 to 4 executed a demand promissory note on 30-2-1991 in the sum of Rs,39,691.000 in favour of the respondent. The appellants Nos. 2 to 4 personally guaranteed repayment of said financial assistance jointly and severally and the appellant No,5, as collateral security, mortgaged her house, situated at Model Colony, Lahore.
' On 14-9-1993 inspection was carried out by the Engineer of the respondent-Bank and it was found that some machinery was missing from the project of the appellants. On 22-9-1993, the appellant No,1 requested the respondent-Bank to revise repayment schedule so that the repayment could be started from March, 1994, instead of September 1993. It was allowed, but subject to the conditions, mentioned in para.17 of the J.M. No,122 of 1995. Again on 21-9-1994 inspection was made and machineries were found missing. On 28-2-1995 an amount of Rs,44,086,049.15 was found outstanding against the appellants and they failed to pay the same.
' It is contended on behalf of the appellants that learned Single Judge in Chamber has failed to appreciate the contents and spirit of Circular No,19 dated 5-6-1997 of State Bank of Pakistan, which provided an opportunity to the defaulting borrowers for settlement of claim of the respondent strictly in accordance with paras. 4 and 6 of the said circular, which according to the learned counsel was statutory in nature and was binding on the respondent-Bank. Learned counsel also argued that the impugned order was passed hurriedly without application of judicial mind, particularly the fact that every Court is required to apply its mind before passing any order or judgment notwithstanding the factum that no person had appeared before it to oppose such an order or that person, who wanted to oppose, was not allowed to oppose because he failed to fulfil the requirement of law. For this proposition, reliance is placed on the case reported as Haji Ali Khan & Co., Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Ltd., Abbottabad PLD 1995 SC 362(377).
' As against above, Mr. Ainuddin Khan, learned counsel for the respondent-Bank strenuously argued that pursuance to Circular No,19 dated 5-6-1997 a package was agreed, vide letter dated 27-11- 1997, between the parties and its terms were accepted by the appellants which were as follows:-- "1. You will admit and acknowledge that a sum of Rs,29.846 million as on 30-6-1997 is payable by you and the same shall be liquidated in the following manner:-
(A) You shall make down payment of Rs,0.918 million as under:--
(i) Rs,0.500 million immediately after receipt of letter alongwith acceptance of this package.
(ii) Balance amount of Rs,0.418 million in four monthly instalments, first three instalments of Rs,0.100 million each commencing from January, 1998 and fourth instalment of Rs,0.118 million.
(B) The principal overdue and other' harges amounting to Rs,9.703 million as on 30-6-1997, alongwith instalments falling due in September, 1997 and March, 1998 (total Rs,2.844 million) shall be paid in 4 years in 16 equal quarterly instalments commencing from 30-9-2001 with mark-up @ 18% p.a.
(C) You shall pay mark-up accrued during the grace period of three years in quarterly instalments with effect from June, 1998 onwards.
(D) You shall pay the amount of Principal not yet due and outstanding mark-up for the grace period in instalments falling due from 30-9-1998 in accordance with existing repayment schedule,
(E) Mark-up outstanding as on 30-6-1997 amounting to Rs,10.265 million after adjustment of down payment (i,e, Rs,0.918 million) shall be frozen and shall be paid by you in 6 quarterly instalments with effect from 31st March, 2005.
2. In case of default in payment of restructured and/or frozen liability mark-up fine @ Re.0.60/Rs,1000/day will be charged.
3. You shall arrange working capital/export refinancing from any commercial Bank/DFI and produce letter of intent in this regard. IDBP shall allow 2nd charge on the project assets as security to the lending institution for providing working capital assistance.
4. You shall pay Rs,50,000 as Banks processing charges, together with the amount of commission, costs.
5. The petition filed under section 39 of IDBP Ordinance, 1961 shall be compromised through Court.
You shall pay legal expenses incurred to be incurred. However, the compromise application shall be filed after brought back of missing machinery worth Rs,0.520 million at project site and the same is verified by the Bank's Engineer.
6. All other terms/conditions of IDBP loans/assistance shall remain unchanged."
' It is an admitted position that facility of said local currency finance assistance was availed by the appellant No,l. It is also an admitted fact that the appellant No,1, by letter dated 11-12-1997, accepted said package contained in letter dated 27-11-1997. During the course of arguments, Mr. Asghar Ali Bhutta, learned counsel for the appellants conceded that, out of the total liability of appellants, they have only paid an amount of Rs,1.2 million to the respondent-Bank. Cheque No,12697606 dated 30-4-1998 for Rs,0.118 million drawn on MCB Rahim Yar Khan, issued by the appellant No,1 in favour of the respondent-Bank admittedly was dishonoured. After interim order dated 31-5-1995, a show-cause notice was issued to the appellants as to why ad interim attachment be not made absolute. It is significant to note that in the ordinary way, the appellants were not served and the notice had to be published in the newspaper. They did not file any reply to said show-cause notice. All these circumstances demonstrate that the appellants had done, what possibly they could do to prolong the proceedings and to avoid to discharge their liability.
' Learned counsel for the appellants also argued that interim order dated 31-5-1995 could not be made absolute, under subiection (7) of section 39 of the Ordinance, as sufficient cause was shown for non-payment of the amount outstanding against the appellants. Also, it is contended that, at the most, the respondent-Bank could file a suit for recovery of said amount and not the application under the Ordinance. The relevant provisions of section 39 of the Ordinance are as follows:-- "39. Special provisions for enforcement of claims 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 fails to repay the 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 term 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 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 of 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.
(2).
(3)..
(4)
(5) At the time of passing an order under subsection (3), the District Judge shall issue to the concern a notice accompanied by a copy of the order, the application and evidence, if any, recorded by him and calling upon it to show cause on a date to be specified in the notice why the order of attachment ad interim should not be made absolute or the injunction be not confirmed.
(6) If no cause is shown on or before the date specified in the notice under subsection (4) or subsection (6), the District Judge shall forthwith make the order ad interim absolute and direct the sale of the attached property or transfer the management of the concern to the Bank or confirm the injunction."
It is noted that the Ordinance is a special law, and was enacted for making credit facilities expeditiously available to industrial concern and simultaneously it safeguarded the interest of the Bank for early recovery of its dues. It strikes a balance between its objectives and the mode of achieving them. It looks after the interest of Industrial concerns and of the Bank as well. Section 39 provides special provisions for enforcement of claim of the Bank.
' In the present case sufficient cause was not shown for non-payment of the amount, as such, the Court had no option but to make the interim order absolute. Impugned order is perfectly correct and no exception can be taken to it. The appeal has no merit.
' On 6-10-1998, after hearing the learned counsel for the parties, we had dismissed the appeal in limine and these are reasons for the same.