1. This case has got chequered history. Facts briefly are that Ali Papers and Board Industries Limited took a loan of considerable amount in 80's. It did not make any payment from its inception to its creditors. It is also reflected from the file that the management of the project was changed few hands without the approval of the creditors. Faced with this situation, Bankers Equity Limited (BEL) filed a suit for the recovery for an amount of Rs,14,29,59,931 along with liquidated damages from the date of default before the Banking Tribunal, Lahore, under Ordinance LVIII of 1984. A show-cause notice was issued to the debtors. Since the reply was found to be unsatisfactory as such the suit was decreed on 25-1-1997. The judgment- debtor i,e, Ali Papers and Board Industries Limited went in appeal which was allowed by this Court on 20-5-1997 and consequently the case was remanded for its decision in accordance with law. Subsequent to the remand the case was transferred to the learned Banking Judge of this Court.
2. Since no body appeared on behalf of Ali Papers and Board Industries Limited on 19-12-1997 as such ex parte proceedings were ordered on the said date and ultimately the suit was decreed on 3-3- 1998. The judgment-debtor filed an application under section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, for setting aside ex parte decree which was dismissed by the learned Banking Judge of this Court on 25-9-1998. Against this dismissal order the judgment-debtor filed F.A.O. No,265 of 1998 which was dismissed through a detailed order of this Court on 18-11-1998. Civil Petition No,32 of 1998 was filed before the Hon'ble Supreme Court which was disposed of on 15-2-1999, with the direction to approach the executing Court. The order is as under:-- "Mr. Muhammad Akram Sheikh, learned counsel for the petitioner is directed to approach the executing Court within a week from today, which shall consider the offer made by the auction- purchaser alongwith the objections raised by any party before the auction is confirmed. The petition is disposed of with the above directions." It is pertinent to mention here that in the meantime execution petition bearing No,43-B of 1998 was filed by the decree-holder Bankers Equity Limited on 15-9-1998 on which notices were issued by the learned Judge under Order 21, Rule 66, C.P.C. On 16-9-1998. The execution proceedings continued for some time. First auction in this case was conducted on 9-1-1999 and the highest bid payable in cash was Rs,52 millions. The decree-holder negotiated with the highest bidder i,e, King Papers and Board of Industries Limited respondent through Mr. Faraz Butt and the offer/bid was increased to 99.492 millions based on deferred payment Rupees 10 millions were already paid in cash to the decree-holder and the balance was to be paid in half-yearly instalments spreading over to 7 years. In the meantime, the judgment-debtor Ali Papers and Board Industries Limited filed an application bearing C.M. No,62-B of 1999 on 19-2-1999 making counter-proposal. The learned Executing Court vide order dated 31-3-1999 rejected the offer as according to the said order both the offerers demanded immediate possession of the property/land on the payment of first instalment. Learned executing Court ordered that such offer cannot be accepted till such time the entire payment was made. Accordingly an order was passed that the Court auctioneer should make another attempt to auction the property after following the prescribed procedure. On 10-4-1999, the decree-holder i,e, Bankers Equity Limited moved Review Application No,2-B of 1999 for the review of the order of 31-3-1999 praying that the order of second auction be withdrawn and offer of King Papers and Board Industries Limited being best available be accepted. The learned Judge however, did not stay the auction proceeding and accordingly second auction was held on 15-5-1999 and the highest offer was to the tune of Rs,26 millions by some other party. The learned Executing Judge vide order dated 4-6-1999 approved the sale of the property for Rs,99.492 millions in accordance with the proposal negotiated by the decree-holder earlier In a meeting on 11-2-1999, with King Papers Industries Private Limited respondent. The judgment-debtor filed F.A.O:No,165 of 1999 against the order of 4-6-1999 whereby the property was sold in terms of the negotiation in favour of M/s. King Papers and Board Private Limited. It was argued by the judgment-debtor that he was ready to give rather better terms and conditions for the satisfaction of the decree than those which were accepted by the decree-holder on negotiation basis with King Papers Limited. It was also vehemently argued by the judgment-debtor before the learned Division Bench that he took exception to the review application moved by the decree-holder but the learned Executing Court without deciding the same has confirmed the sale in favour of M/s. King Papers Board Private Limited through order dated 4-6-1999. Learned counsel for the decree-holder firstly contested the stance of the judgment-debtor but thereafter to cut short the litigation agreed to the acceptance of the aforementioned F.A.O. So that learned executing Court should decide the review application and the application of the judgment-debtor in accordance with law. The learned Division Bench accepted F.A.O. No,165 of 1999 vide order dated 14-9-1999 and set aside the order dated 4-6-1999. The operative part of the judgment is as under:-- "In this view of the matter, this appeal is accepted and the order dated 4-6-1999, is set aside, review application as well as application by the judgment-debtor making proposal would be deemed pending." Subsequent to this order the matter was taken up by the learned Executing Court. It is pertinent to mention over here that Sh. Izhar-ul-Haq learned -counsel in the meantime moved C.M. No,64-B of 1999 on behalf of Sales Tax Department on which notice was issued by the learned Executing Court on 28-6-1999. However, the learned Executing Judge subsequently through Order dated 6-10-1999 decided not to hear this matter. By an order of the Hon'ble Chief Justice the matter was placed before me on 2- 11-1999. Mr. Imtiaz Rashid Siddiqu learned counsel filed C.M. No,676-B of 1999 on 13-11-1999 setting up proposal qua the settlement of all liabilities on behalf of the judgment-debtor. The offer/proposal was in the following terms:-- "All liabilities shall be settled at a total amount of Rs,107.5 millions. The same shall be disbursed in the following manner:
(i) A down payment of ten millions (one Crore) rupees shall be paid within one month after confirmation of proposal. Joint possession of the project should only be transferred to the applicant after payment of the referred payment.
(ii) (a) The balance of Rs,97.5 millions shall be disbursed in seven (7) half-yearly instalments commencing after the clause (i) after grace period of six months.
(iii) (b) Grace period for the payment of each instalment shall be one month, in case of default Bank shall be liable to charge interest/mark-up on the delayed instalments till its clearance.
(iv) (c) During discharge of liabilities applicant would be in joint possession with the bank." Accordingly in view of the aforementioned proposal the judgment-debtor undertook to deposit Rs,10 millions to establish his bona fide within a fortnight with the decree-holder. This is reflected from the order dated 21-1-2000. However, in spite of extension of time the judgment-debtor failed to honour his commitment. Ultimately the case was taken up on 1-3-2000 and Mr. Imtiaz Rasheed Siddiqui learned counsel candidly stated at the bar that since his client i,e, judgment-debtor failed to honour his commitment by depositing Rs,10 millions as such he would not press his application whereunder he gave a counter-proposal to match the offer given by respondent King Papers Board Private Limited. Similarly Mr. Ijaz-ul-Ahsan made a categorical statement withdrawing his application for the review of the order earlier passed by learned Executing Court for holding of the second auction. With this development the terms on which the learned Division Bench vide order dated 14-9-1999 passed in F.A.O. No,165 of 1999 remanded the case i,e, to dispose of the applications of the judgment-debtor as well as review application of the decree-holder were satisfied as such the natural result of all this exercise was that the earlier order dated 4-6-1999 passed by learned Executing Judge was to be resurrected. Mr. Sultan Mahmood, Advocate, on behalf of Mr. Sh. Izhar-ul-Haq sought direction qua the payment of sales tax due against the establishmentjudgment-debtor. Mr. Naseer Ahmad Bhutta learned counsel for King Papers Board Private Limited thereupon made a prayer that he be allowed to withdraw his offer and Rs,10 millions earlier deposited by him be given back. He made this plea on the ground that his client secured the property free from all encumbrances. I rejected this plea of the auction-purchaser i,e, King Papers Board Private Limited for refund of Rs,10 millions and adjourned the case for further proceedings. Surprisingly the decree-holder moved C.M. No,170-B of 2000, on 13-3-2000 for the withdrawal of the execution application. I was surprised and shocked to receive such an application on behalf of the decree-holder when in the presence of the learned counsel as well as functionaries of the Bank I earlier rejected the plea of Mr. Naseer Ahmad Bhutta whereby the auction purchaser i,e, King Papers wanted to withdraw from the contest by getting back Rs,10 millions. All this is reflected from my order dated 14-3-2000. The case was only adjourned on 1-3-2000, to determine the question qua the payment of sales tax as raised by Sultan Mahmood, Advocate.
3. Mehr Muhammad Abdullah Vice-President has filed a note from which it is reflected that he has brought the proceedings held on 1-3-2000 to the notice of Chief Executive Bankers Equity Limited.
4. He also brought to his notice the observation of this Court that Rs,10 millions would be forfeited in case of the withdrawal by King Papers Board Private Limited from the offer. It has further been stated and is also reflected from the note that the Legal Advisor of the decree-holder gave an advice for the withdrawal of the execution petition as according to him most of the amount would be taken by the Sales Tax Department. It is pertinent to mention here that stance was taken by the decree-holder before learned Division Bench at the time of arguments in F.A.O. No,165 of 1999 on 14- 9-1999, that the judgment-debtor was not at all serious in its counter-proposal and was only interested in prolonging satisfaction of the decree. However, the conduct demonstrated by the decree-holder too appears to be non-serious in the conclusion of the long drawn litigation. The decree-holder in spite of the fact that second auction was only for Rs,26 millions as compared to Rs,52 millions in the first round and the negotiated sale was for Rs,99.492 millions for the reason best known decided to withdraw execution application. This sort of conduct demonstrated by the banker functionaries in handling public amount cannot be appreciated. At the cost of repetition since judgment-debtor has withdrawn his counter-proposal of matching and the decree-holder has also withdrawn his view application as such terms of the remand order made by learned Division Bench in F.A.O.No,165 of 1999 stood fully satisfied and complied. The net result of aforesaid discussion is that application bearing No,170-B of 2000 filed by the decree-holder for the withdrawal of the execution application is hereby dismissed and the offer of Rs,99.492 millions agreed between consortium of the Bank as well as King Papers Board Private Limited through minutes dated 11-2-1999, is hereby confirmed. As far as payment of sales tax is concerned, section 49 of the Sales Tax Act is very clear on this issue and I need not dilate upon the same. The law would have its own course. Before parting with this judgment, I must say that this execution issue is shuttling for a considerable period without substantial progress as such I also direct the decree-holder to take immediate steps for the implementation of the aforesaid agreement. Office is also directed to send copy of this judgment to the Governor State Bank of Pakistan for his information. There shall be no order as to costs in the circumstances.