MUHAMMAD APZAL ZULLAH, J.-This Intra Court Appeal has been filed to call in question order passed by a learned Judge in Chambers on 8-2-1979 in C. M. No. 4 of 1979 in Execution No. 1/L of 1972. Earlier proceedings in the same case were under the Insurance Act, 1938 in Civil Original No. 35 of 1961 decided on 21-7-1962 and Civil Original No. 41 of 1970, decided on 17-9-1971 (PLD 1973 Note 75 at p.
101). The matter was also taken to the Supreme Court in Civil Appeal No. 41 of 1966, decided on 15- 6-1970 (PLD 1970) SC 8).
2. In Civil Original No. 41 of 1970 exception was taken to "the right of Muslim Insurance Company Limited to proceed against the properties mentioned in Annexure 'A' to the said petition in pursuance of the judgment of this Court dated 21-7-1962 in Civil Original No. 35 of 1961 as affirmed by the Supreme Court . . . . . ." As it appears from the averments made in Civil Original No. 41 of 1970, the respondent was then "threatening to move against and, either take over or have the properties mentioned in the aforesaid Annexures sold by public auction through Bailiff of the Court claiming under the aforesaid judgment of the High Court dated 21-7-1962 and the judgment of the Supreme Court dated 15-6-1970 the right to do so." Civil Original No. 41 of 1970 having been dismissed, amongst other actions, some of the shares of the Company under attachment, have been sold in two lots. The first lot of about 18,000 shares were, as stated in the memo of appeal, sold for Rs.
2,33,000. At the final stages of the sale the appellants' side was permitted to participate in the negotiations for sale but they failed to make the purchase because, it is further stated in the memo of appeal, they offered an amount less by Rs. 3,OC0. The second lot of over eleven thousand shares was offered for sale through auction. The bids were opened in the High Court. Syed Murtaza Shah, husband of appellant No. 5, offered Rs. 93,881, Sherazi Investment Rs. 1,01,111, Muhammad Hafeez Butt Rs. 22,774. Wasim Ahmed Bhatti Rs. 27,770 and Amjad Hussain Rs. 34,757. Mst. Satwat Shah appellant herself offered a bid of Rs. 1,00,000. She offered an additional amount of Rs. 50,000 on the sale price of the earlier lot of about 18,000 shares and thus offered to purchase both the lots. The learned Judge in Chambers by his order dated 8-2-1979 rejected the prayer of the appellants and confirmed the second sale as well in favour of the highest bidder, therefore, this Intra Court Appeal.
3. Learned counsel has contended that although the question of attachment of properties was disposed of in the earlier proceedings and the appellants cannot take any objection in that behalf, the disposal of the attached properties being a distinct action, their offer to purchase the shares was in their own right and could not be rejected simply because other higher offer was made, and in any case, notwithstanding the acceptance of the highest tender from an outsider when Rs.
50,000 was offered from the appellants' side, over and above the highest offer from the outsider for the first lot, the same should have been accepted ; that although the procedure prescribed for disposal of the attached properties is governed by the Code of Civil Procedure, as held by the High Court in this case earlier in C. O. 41 of 1970, the provisions of section 106 of the Insurance Act would also be attracted ; that combined effect of the provisions in the Insurance Act and in the Code of Civil Procedure was that sale could not be made through "tender" without first making the offer to the appellants to purchase at "the highest price" ; that the sale through "tender" in any case is not permitted by law ; that the splitting of the shares in two lots by the Official Receiver was disadvantageous because if sold in one lot, the shares would have fetched more price ; and lastly, that the bona fides of Farabeem Ali Khan, the purchaser of both the lots are not established because he transferred the shares to Sherazi Investments Limited.
4. The objection relating to the splitting of the shares was disposed of by the learned Single Judge as follows "(2) The first prayer has been made on the ground that it was in the knowledge of the Official Receiver that the totality of the shares of Muslim Insurance Company was far more but only 18045 shares were offered for sale in the first lot, that the information was deliberately suppressed from this Court and bidders and only a part of the shares were auctioned, the remaining to be offered for sale at a later stage. This, according to the petitioner, has prejudiced the sale as well as the petitioner and has resulted in a reduced price.
(3) Keeping in view the fact that the proceedings at attachment, of disposal of objections to the attachment, the listing of the shares and retrieving them physically has been an arduous and a prolonged affair. I did not consider it at all unfair to anyone to offer for sale such of the shares and in such lots as were retrieved at a particular stage. One cannot wait till all the shares are physically retrieved and are available from every nook and corner. It was for this purpose that I had directed and it is standing direction to the Official Receiver that he should proceed with the disposal of the attached property as soon as it is available without waiting for the other property unless such a waiting is for compelling reasons having economic or legal bearing. In the present case there was no such compelling reason why the part paid shares should not have been sold in a lot of 18,000 and instead all the 30,0;,0 shares (approximately) should have been sold in one lot. As a matter of fact the earlier offer and sale has resulted in an improvement in the share value of the property and I would not be surprised if this is on account of so many shares going to a single party.
Therefore, it would be incorrect to say that such a sale has in any manner interfered with the economic benefits expected in the circumstances.
(4) Another ground why the first relief cannot be granted at this stage is that the earlier sale was with the participation of S. Murtaza Shah in which he himself was the bidder and at that stage having not taken such an objection, it cannot now be made the basis for interference with the sale.
Actually he had not succeeded in competing with the offer of the highest bidder which bad taken place on the basis of negotiation.
(5) The earlier sale has also reached an advanced stage for it was approved, the necessary orders of transfer of shares were passed and it was only the actual transfer which had to take place when such a request was made. As the purchaser has acquired a vested right which cannot be interfered with except on very good grounds, it is no stage now to withhold the transfer whatever be the offer made by the petitioner or any unsuccessful bidder in that sale.".
All these reasons are unexceptionable and finding no other justification to assail the same, learned counsel advanced an argument, the clue for which is taken from one of the above-quoted reasons, namely, that unless there is economic or legal compulsion the disposal of the attached property should take place as soon as it becomes available without waiting for the availability of other properties. The precise argument of the learned counsel is that if all the shares would have been sold in one lot instead of two they would have been sold at a much higher price because, as contended, the purchaser would have gained managerial control in the Company by holding majority of shares. This reasoning was not advanced before the learned Single Judge nor any analysis was made in the grounds of appeal vis-a-vis the total number of shares and qualifying number of shares for such a control. We could repel the plea on this ground alone. However, learned counsel when asked during the arguments to give details in this behalf, showed his inability with the exception that "it was a matter of detail". We, however, did not accept it. He then, after consulting his client gave such figures which do not support his contention. According to him, after excluding about nearly 46,000 shares on account of various reasons there were nearly 29,000 shares to be disposed of through sale. If that were so, 18,000 shares sold in the first lot undoubtedly constituted the majority of saleable shares. Be that as it may, the fact remains. That this reasoning was not advanced before the learned Single Judge and in any case the appellants' party had not only an opportunity of purchasing both the lots but also availed of the same but without, however, any success ; because they did not make the highest offer at proper stage. For all the above- mentioned reasons including those given by the learned Single Judge, there is no force in the argument of the learned counsel relating to the so-called splitting.
5. The offer to purchase was made to Dr. Muttaqi and this fact stands admitted and is so mentioned in the relevant part of the previous judgment of this Court quoted in para 2 of this appeal, i.e., "As Dr. Muhammad Sharif Muttaqi has expressed his inability to pay the aforementioned sums to the Company, it is directed that the properties. .---. . . Be put to sale and their proceeds paid to the Company". I n C. O. No. 41 of 1970, which amongst others was filed by Dr. Muttaqi himself and the present appellants, it was specifically mentioned that the Company was then "threatening to move against and, either take over or have the properties mentioned . . . . . . . . . . . Sold by public auction . . . . . . . . . . . ." (Para. 13). Dr. Muttaqi even then was conscious that the sale through auction would take place. If he wanted to purchase, there was no impediment. On the other hand, his position was that he was unable to do anything in the matter because of various financial reasons mentioned in the said petition, i. e., C. O. No. 41 of 1970. In view of Dr. Muttaqi having failed to make any offer, even if further opportunity would have been denied to the present appellants, it would not have been unlawful because it is not incumbent upon the Official Receiver to make offer to the delinquent and repeat the same after his death to his successors in every generation. However, the appellants had, as mentioned earlier, full opportunity in this behalf and availed of the same. We do not agree with the learned counsel that there was any necessity of any ritual or other formality qua the appellants before finalizing the sale in favour of the highest bidder.
It was held in C. O. No. 41 of 1970 that subsection (8) of section 106 of the Insurance Act gave wide powers to the Court to deal with all questions arising under section 106 of the Insurance Act.
Subsection (8) lays down that "the Court shall have full powers and exclusive jurisdiction to decide all questions of any nature whatsoever arising thereunder and in particular, with respect to any property attached under this section". This wide exclusive jurisdiction was conferred on the Court because of the further provision made in the same subsection that "no other Court shall have jurisdiction to decide any such question in any suit or other legal proceedings".
6. The proceedings of sale of shares in this case were fair. Although the appellants were afforded opportunity of negotiations for purchase of the first lot, they could not mate a better offer than that of an outsider. The increase subsequently offered could not be given any importance because that was in the negation of the principle of sale earlier adopted. It cannot be left to the appellants' convenience alone that if they are unable to purchase at the highest price offered by another party in one negotiation, and when the Court take a decision in favour of the highest bidder, they should have the liberty of they making an increase over the highest bidder.
7. With regard to the second sale also the appellant had the opportunity of making the bid and did make the bid but the same was less than the highest offer by an outsider. No exception thus can be taken to the acceptance o the offer made by the outsider in this case.
8. The argument of the learned counsel that from the very beginning the sale through, as he put it, "tender" was impermissible is without any force According to him, if there was no possibility of a direct sale to the appellant; at what he termed as "highest price" without spelling the mechanism of deter mining the so-called "highest price" the sale should have been- through "auction" and not through "tender". Learned counsel was unable to give any cogent reason as to how the sale in the present case through secret offer; could be in any way prejudicial to the interest of the fund for which the sale took place. In the first sale the appellants participated in the negotiation; and could not out-bid an outsider and in the second sale the highest offer received through secret tenders has been accepted. One of the appellant; participated, though through a late tender, but could not out-bid the outsider It would have been unfair if after the opening of the bids, the appellant, would have been afforded another opportunity of out-bidding the highest offer. We agree with the learned Single Judge that on being unsuccessful in a bid no bidder can claim, as of right, another mode of disposal of the property. The action of a public functionary entering into an ordinary contract is different from entering into a contract through the process of tenders. The basic concept of financial dealing in the latte- case is different from the former. Any serious deviation in the latter mode once adopted, without compelling justification, might set at naught the entire concept of clean financial dealings. See Rashid A. Khan v. West Pakistan Railway Board (PLD 1973 Lah. 733). There is no compeling reason in this case to change the mode of sale of shares through tenders to that through negotiations.
9. The question of attachment and the power of the High Court to dispose of the attached property was examined in detail in the earlier judgment in C. O. No. 41 of 1970. Learned counsel was unable to show any clog in any law including subsection (7) of section 106 of the Insurance Act relied upon by him to establish that the method adopted in this case for disposal of the shares was without competence or otherwise illegal. As discussed earlier, everything was done in full knowledge of the appellants. They participated in the proceedings but failed to purchase the shares because of their inability to make the highest offer. They had no vested right. To the acceptance of their belated offers of increase over the accepted highest offer made by another party. The allegation that the successful bidder transferred the shares to a third party, even if true, would not make any difference because nothing in law has been shown which prohibits such an assumed sale.
10. None of the arguments raised by the learned counsel has any force. This appeal accordingly is dismissed in limine.
S. Q.