IN THE HIGH COURT OF SINDH AT KARACCHI

ORDER SHEET

1st Appeal No.13 of 2009

Present

Mr. Justice Khilji Arif Hussain

Justice Ms. Soofia Latif

Date of hearing 13.05.2009

Mr. Naveed Ahmed Khan advocate for appellant

Mr. Saalim Salam Ansari advocate for respondent No.1

Mr. Naveedul Haq advocate for respondent No.2.

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KHILJI ARIF HUSSAIN,J:- Brief facts to decide the appeal are that Respondent No.2 granted financial facilities to one Muhammad Shamshad Sulaiman son of Muhammad Sulaiman for a sum of Rs.12,00,000/-. On the request of customer respondent No.2 issued two Pre-Shipment Export issued two Guarantees bearing No,PEFG-PSG-046/2002 for an amount of Rs.18,24,000/- and guarantee No.PEFG-PSG-065/2002 of an amount of Rs.12,00,000/-.On failure of the customer to perform of his obligation for which bank guarantee was given. The beneficiary lodged claim payment request on 21.10.2002 and respondent No.2 honoured their obligation towards beneficiary. The respondent No.2 then served notice of demand upon the customer. The customer despite notice served failed to reply notice of demand to make payment in respect of both the guarantees. Despite legal notice dated 6/3/2003 served upon the customer and on his failure to pay outstanding dues, respondent No.2 served notice of sale of mortgaged property upon the appellant in accordance with Section 15 of the Financial Institutions( (Recovery of Finances) Ordinance, 2001. the customer issued post-dated cheque dated 21.05.2003 for a sum of Rs.14,24,000/-, which cheque on its presentation was dishonoured. After complying requirements under section 15 of Ordinance 2001, respondent No.2 through public auction notice called bids in respect of mortgaged property. In response to the public notice various bids were received and the respondent No.2 accepted the highest bid in the sum of Rs.6,93, 780/- . After deposit of the entire bid amount by the auction purchaser respondent No.2 executed Registered Conveyance Deed on 24.11.2003. After conveyance deed was registered, auction purchaser filed an application under section 15(6) of the Ordinance 2001 for eviction of the appellant or any other person occupying the property in question and to handover vacant possession to him. The appellant filed objection by way of an application under Section 10 of the Ordinance 2001, which application after hearing the parties was dismissed by the learned Banking Court No.II while order dated 13.03.2009, hence this appeal.

Heard Mr. Naveed Ahmed khan, learned counsel for the appellant, Mr. Saalim Salam Ansari, learned counsel for respondent No.1, and Mr. Naveedul Haq, learned counsel for respondent No.2.

Learned counsel for the appellant vehemently argued that after sale of the property under section 15 of the Ordinance 2001 by the respondent No.2, the respondent No.2 failed to file Statement of Account within 30 days as required under SubSection (6) of Section 15 of Ordinance 2001 and as such sale conducted by respondent NO.2 is liable to be set aside, declared as void without lawful authority. It was further contended by him that the customer filed Suit No.474/2004 on the date when auction was held by respondent No.2, the respondent ought to have been stopped the seal of the property under Section 15 of Ordinance 2001. learned advocate in support of his contention relied upon the cases of Sheikh Abdul Sattar Lasi and another, 2007 CLD 69,Raha Hamayun Sarfaraz Khan and othersi vs.Noor Muhammad 2007 SCMR 307, Izhar Alam Faroqi Advocate, vs. Seikh Abdul Sattar Lasi and others,2003 SCMR 1547,______2006 CLD 257.

On the other hand, Mr. Saalim Salam Ansari, learned counsel for respondent No.1 Auction Purchaser, argued that statement of account was filed within 30 days in terms of Section 15(6) of the Ordinance 2001 and in Suit No.474/2004 filed by the customer for declaration and rendition of accounts. Learned advocate argued that even otherwise time period given under Subsection (6) of Section 15 of Ordinance 2001 was directory and not mandatory, although there was no delay in filing the account and same was filed within 30 days as contemplated delay simplicitor cannot render sale by the bank illegal and without lawful authority. Learned advocate in support of his contention relied upon the case of Rooh-ul-Amin vs. Universality of Peshawar and 3 others, 2006 PLC (C.S.) 813, Wattan Party vs. Federation of Pakistan, PLD 2006 SC 697, Haji Sheikh Noor Din And Sons (Pvt) Ltd. through Managing Director vs. Muhammad Intizar and others, 2006 PLC 606, Habib Bank Limited vs. Messrs Sabcos (Pvt), 2006 CLD 244, Bank of Khyber vs. Messrs Spencer Distributors Ltd. and 14 others, 2003 CLD 1406.

We have taken into consideration respective arguments advanced by the learned advocates for the parties, perused the record. The facts of the case had already been given and need not to be repeated again. Admittedly customer has not preferred any appeal Afroz Qureshi and another vs. Muhammad Ikram Siddiqui, against the impugned order. The customer availed the facility of bank guarantee from time to time. After the encashment of guarantee the respondent No.2 served legal notice and then notices as contemplated under Section 15 of the Ordinance 2001 for sale of the property and thereafter got notice of sale of mortgaged property published in leading newspaper. Neither customer nor the appellant mortgagor filed any objection for any legal proceedings obtained order of restraining against respondent No.2 to sell mortgaged property in exercise of powers under 15 of Ordinance 2001. Customer on the date when the sale was conducted by respondent No.2 filed application for rendition of accounts, cancellation of documents. Learned advocate by the appellant failed to place on record any document, information of sale and the order of restriction put upon respondent No.2 was passed in Court of competent jurisdiction. The respondent No.2 accepted to it the order given by the respondent No.1 on 30.102004 and respondent No.1 deposited balance amount on the very day when the bid was accepted by the resondentNo.2, and thereafter respondent No.2 executed registered convence deed in favour of appellant on 24/11/….

Neither the appellant nor the respondent in response to the notice published for sale of mortgaged property or thereafter filed an application under Order 21 Rules 89,90 of the CPC but filed an application under section 15 of Ordinance 2001 much after application under section 15(6), conveyance deed was registered in favour of respondent No.1, the customer though filed suit for rendition of account sometime in September 2004 bur there is nothing on record that order was passed by the Banking Court and or that customer despite having notice of sale of mortgaged property take any step for payment of outstanding dues.

In the case of Sheikh Abdul Sattar Lasi and another vs. Judges Banking Court and others, 2007 CLD 69, the application under Section 15(6) of Financial Institutions (Recovery of Finances) Ordinance was filed before the Banking Court in respect of auction notice for an amount of Rs.1046.114 million for handing over possession was before the this Court and Division Bench of this Court held that the Banking Court has not pecuniary jurisdiction in the matter set aside the order and maintain possession to place that were at the time of filing application under section 15(6) of Ordinance 2001. The order was called in question before the Hon’ble Supreme Court where too order was maintained by holding that jurisdiction cannot be assumed with the consent of the parties.

In the case of Qamaruddin vs. Muhammad Sadiq and others, 2001 CLC 848, it was held that the question in regard to the provision being mandatory or directory is not capable of an easy answer. The answer has to depend on several questions in regard to the correct interpretation of the statute itself, the objects which the statute wants to fulfill, the consequence which follows the non-compliance of the rule, the prejudice the quantum thereof that it causes to the other party by non-compliance, the penalty which the statute prescribes in the matter of non-compliance and the nature of provision, whether it is being concerned only in a particular cause. All these questions need to be considered, while determining the nature of provision.

In the case of issued two guarantee Raja Hamayun Sarfraz Khan and other vs. Noor Muhammad, 2007 SCMR 307, when a thing to be done in a particular manner, it must be done in that way and not otherwise.

Learned advocate for the appellant also relied upon the case of Muhammad Umer Rathore vs. Federation of Pakistan, Judgment reported in 2009 CLD 257, where Section 15 of the Ordinance 2001 was declared as arbitrary and held that it suffer from vires of infirmities. We will not like to discuss this matter with great respect in detail, as the Hon’ble Supreme Court has stayed the operation of said order.

It is by now settled proposition of law that provision should be read as directory unless consequences of non-compliance of the same is provided.

In the case of Niaz Muhammad Khan vs. Mian Fazal Raqib, PLD 1974 SC 134, the Hon’ble Supreme Court has observed as under:

“…. As general rule however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them , the facts shall be null and void. To put it differently if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision.

In the case of Watan Party vs. Federation of Pakistan, PLD 2006 SC 697, held that:

“Non-provision of consequence is one of the tests to determine “directory” or “mandatory” nature of a statutory provision. The whole purpose of the legislation is also to be kept in view to determine whether the duty cast it of absolute nature or of directory nature.

Sub-Section (10) of Section 15 of the Ordinance 2001, put an obligation upon Financial Institutions who sold the mortgaged property in exercise of powers conferred upon them by Section 15 of Ordinance 2001 to file proper account of sale proceeds in the Banking Court within 30 days of the sale. A Purchaser of the property for valuable consideration, cannot be non-suited due to default of Financial Institutions in account with a period provided by Sub-Section (10) of section 15.

Sub-Section (11) of section 15 provided that all disputes relating to the sale of the mortgaged property under section 15 shall be decided by the Banking Court which includes disputes pertaining non-compliance of section 15(10) of Ordinance 2001.

Time period provided under Section 15(10) of Ordinance 2001 is to be run from the date of registration/sale deed in respect of mortgaged property in favour of the purchaser. In terms of Sub-Section (8) of Section 9 as Financial Institutions was required to file proper account of sale proceeds in the Banking Court about the net sale proceeds after taking all expenses incurred for sale.

In the instant case conveyance deed was registered on 24.11.2004 whereas respondent No.2 filed written statement on 23.11.2004 in Banking Court i.e. one day before conveyance deed was executed in favour of the respondent No.1 and further filed statement of account, on 17/12/2004 i.e. within 30 days from the date of conveyance deed was raegistered.

We are of the view that substantial compliance of section 15(10) of Ordinance 2001 has been made and as such same cannot be set aside on this ground. Nothing has been brought on record that the market value of the property, disposed of by respondent No.2, was more than of which it was sold by respondent No.2.

For the foregoing reasons appeal is dismissed in limine along with application fixed for order and hearing.

Judge

1^st Appeal No.13 of 2009

‘F’