ALLIED BANK OF PAKISTAN through Branch Manager Gole Cloth Branch, Faisalabad Versus JUDGE BANKING COURT NO. 1, FAISALABAD
1. The brief facts out of which present writ petition arises are that Messrs Jet Set Enterprises secured loan from the petitioner. An agreement was also executed between the petitioner and Jet Set Enterprises. The Jet Set Enterprises did not repay the loan to the petitioner in terms of the agreement. The petitioner filed a suit for recovery against Jet Set Enterprises before the learned Banking Court. The learned Banking Court ex parte decreed the suit of the petitioner vide judgment and decree, dated 22‑2‑1981. The property of the judgment‑debtor was put on auction by Executing Court on 15‑3‑1983. Respondent No.2 participated in the auction proceedings. Respondent No.2 had given highest bid amounting to Rs.2,26,000. The bid of respondent No.2 was accepted and confirmed by respondent No. 1 vide order, dated 7‑7‑1983 and sale certificate was also issued by respondent No. 1 in favour of respondent No.2 on 10th August, 1983. The judgment‑debtor preferred an application before the learned Banking Court for setting aside the ex parte decree, dated 22‑2‑1981. The Banking Tribunal accepted the application of judgment‑debtor vide order, dated 1‑8‑1988. The petitioner and respondent No.2 being aggrieved filed two separate F.A.Os. before this Court which were dismissed vide order, dated 21‑11‑1990. The respondent No.2 being aggrieved by the judgment of this Court filed petition before the Hon'ble Supreme Court. The leave was refused by the Hon'ble Supreme Court vide order, dated 29‑7‑1991. The judgment‑debtor had repaid all he loan amount to the petitioner and consequently the suit was withdrawn by the petitioner. The aforesaid auction money deposited by respondent No.2 before the petitioner remained, as neither the trial Court passed any order of its refund to the respondent No.2 while restoring the suit on setting aside the ex parte decree nor this Court and the Hon'ble Supreme Court averted to this side of the matter. The petitioner filed the application before Banking Court No. 1 to order the refund of the money to respondent No.2 without interest as the same was kept in the sundry account of the Bank. The respondents filed reply of the application controverted the contents of the application to the extent that respondent No.2 should be paid not only the auction money deposited with the petitioner but also compound interest on the said amount. Respondent No.2 also filed application for the said purpose before the Banking Court on 18‑7‑1996. The Banking Court disposed of both the applications through the impugned order, dated 6‑6‑1998 and directed the petitioner to refund the auction amount to respondent No.2 with simple interest of 15% per annum from 10‑8‑1983 till the date of said order.
2. The learned counsel of the petitioner submits that the application of respondent No.2 was not only time‑barred but the learned Banking Court did not take into consideration the fact that his predecessor earlier while setting aside the judgment/decree, failed to order for the refund of the auction money. He further submits that it is an established principle of law that the act of the Court, should not prejudice any person. In support of his contention, he relied upon the following judgments:‑‑‑
2. PLD 1989 Lahore 322 (Muhammad Yousafs case); PLD 1989 Lahore 384 (Abdus Sattar's case); PLD 1989 Lahore 478 (Shambilid Ghori's case); PLD 1992 Lahore 92 (Naseer Ahmad's case) and PLD 1993 Lahore 11 (Col. (Retd.) Muhammad Aslam's case).
3. He further submits that the impugned order is in violation of the mandatory provisions of section 144 of C.P.C. He further submits that Doctrine of. Restitution is based upon the principle that the acts of the Court should not be allowed work in injury of injustice to the suiters. In support of his contention, he relied upon the following judgments:‑‑
4. AIR 1943 PC 189 (Kunwar Rohani Raman's case); PLD 1965 Lahore 374 (Sh. Mehraj Din's case) and PLD 1977 Lahore 409 (Iqbal Ahmad's case).
5. He further submits that the learned trial Court did not formally order to refund the amount of the petitioner as is envisaged from operative part of order of the Banking Court, dated 1‑8‑1988. The learned Banking Court directed respondent No.2 to file an application for the refund of the amount in question, but respondent No.2 failed to file any application. He further submits that the petitioner filed an application before the Banking Court on 28‑11‑1994 with the prayer that the amount in question be allowed to refund to respondent No.2. Subsequently, respondent No.2 filed an application before the Banking Court on 18‑7‑1996. The learned Banking Court decided both the applications vide order, dated 6‑6‑1998.
3. Learned counsel of respondent No.2 submits that the petitioner is not permitted to raise new ground in the Constitutional petition which was not taken by the petitioner before the learned Banking Court. In support of his contention, he relied upon the following judgments:‑‑
6. Allah Dia v. Settlement Commissioner Lands (1982 CLC 1908).
7. Hassan Khan v. Mst. Rape Jane (1983 CLC 615).
8. Khalid Saeed v. Hockey Club of Pak. Ltd. (1987 CLC 959).
9. Usman Enterprises v. Collector of Customs, Quetta (1995 CLC 1137).
10. Muhammad Ali v. Deputy Settlement Commissioner (PLD 1983 Lahore 86).
11. Ghufran Ahmad Siddiqui and others v. Subhand Sheikh and others (PLD 1983 Lah. 157).
12. He further submits that substantial justice has been done between the parties, therefore, the writ petition is liable to be dismissed. In support of his contentions, he relied upon the following judgments:‑‑
13. Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236).
14. Khiali Khan v. Haji Nazir and 4 others (PLD 1997 SC 304).
15. He further submits that the impugned order is in accordance with law, therefore, the writ petition is not maintainable. In support of his contentions, he relied upon the following judgment:‑‑‑
16. Muhammad Zahoor and others v. Lal Muhammad and others (1988 SCMR 322).
17. He further urged that section 144, C.P.C. is not attracted in the present case, therefore, the judgments cited by the learned counsel, of the petitioner, are not relevant to resolve the controversy between the parties. The learned Banking Court has exercised its powers under section 151, C.P.C. In support of his contention, he relied upon the following judgments:‑‑
18. Captain Sultan Mir Khan v. Khanzada Ain‑ud‑Din and others (1968 SCMR 1004) .
19. Muhammad Khan v. Ramnarayan Misra and others (AIR 1956 Orissa 156).
20. He summed up his arguments that the petitioner as well as respondent No.2 filed two independent appeals before this Court against the order of Banking Court, dated 1‑8‑1988 which were dismissed by this Court. Thereafter, the petitioner and respondent No.2 filed two independent petitions before the Hon'ble Supreme Court which were also dismissed.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is better and appropriate to reproduce the operative part of the order of Banking Court, dated 1‑8‑1988 to resolve the controversy between the parties:‑‑‑
21. Urdu Typing 688
22. The aforesaid operative part of the order clearly reveals that respondent No.2 had to file an application to refund the amount in question before the learned Banking Court but respondent Nc.2 failed to file an application before the learned Banking, Court, therefore, Banking Court misread the order, dated 1‑8‑1988. It is also admitted fact that respondent No.2 purchased the property in question and deposited the said amount on 10‑8‑1983 which was utilized by the petitioner till 1‑8‑1988. Therefore, respondent No.2 is entitled to refund all the amount alongwith 15% per annum profit as granted by the learned Banking Court from 10‑8‑1982 till 1‑8‑1988. Thus, the impugned order is modified to this extent. Respondent No.2 is also entitled to refund all the profit from 6‑6‑1998 till full final payment by the petitioner. The petitioner is directed to refund the principal amount alongwith 15% profit per annum to respondent No.2 as modified by this judgment within two months from today.
6. It is pertinent to mention here that the question of law can be raised‑ on any point at any stage as per principle laid down by the Hon'ble Supreme Court in case Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD B 1965 SC 690). The judgments cited by the learned counsel of the parties are not applicable to resolve the present controversy between the parties.
23. In view of what has been discussed above, this writ IC petition is partly accepted.
24. Q.M.H./M.A.K./A‑412/L Order accordingly.