PAK-LIL)YA HOLDING CO. LTD. Versus MULTITRADE (PRIVATE) LIMITED

ORDER

This is an application for review under section 114 C.P.C. of an order passed by this Court on 22‑11‑1987 calling upon the defendants to make up the deficiency in the security already furnished by them.

2. Facts giving rise to this application are that a suit has been filed by the plaintiff‑Bank against the defendants for Rs.12,088,280/75, under the Banking Companies (Recovery of Loans) Ordinance, 1979. The defendants filed an application for leave to appear and defend the suit. By order of this Court dated 13‑6‑1987 leave was granted to the defendants to appear and defend the suit on furnishing security in the sum of Rs.9 Millions to the satisfaction of the Nazir of this Court within a period of 2 months. It was further ordered by the Court that property already mortgaged by deposit of title deeds by the defendants with the plaintiff shall be treated as security in this suit. The defendants were called upon to produce evidence before the Nazir to show that the value of the property is sufficient to satisfy a claim up to Rs.9 Millions. It was further ordered that if the value of mortgaged property was less than 9 Millions, then the defendants shall provide an additional security for the deficit amount within the time fixed for furnishing the security.

3. On 4‑10‑1987 defendant No.3 filed affidavit before the Nazir security alongwith a copy of extract issued by Mukhtiarkar of Sukkur regarding valuation of the mortgaged property which was a plot of land bearing No.214 in Deh Abad Jageer Taluka and District Sukkur measuring 1,48,148 Sq. feet valued at Rs.1,48,14,800 that is at about Rs.100 per Sq. Foot. The plaintiff was called upon by the Nazir to appear and show cause against the same. He made an application for time to get the property valued by another architect as the certificate of the defendants' architect was highly exaggerated. The plaintiff's counsel filed the counter‑affidavit but did not get the property evaluated by another architect. On 24‑8‑1987 statement of defendant No.3 was recorded on oath. The plaintiff's counsel submitted objections to the acceptance of the security on the ground that the value of the property was much less than Rs.9 lacs. In view of the objections raised by the plaintiff's counsel to the sufficiency of the security the matter was referred by the Nazir to the Court by his reference dated 26‑8‑1987. The Court directed the plaintiff to file a certificate from his own architect about the valuation of the property and ,then both the parties were to cross‑examine each other's architects and then the Nazir was to submit the report again.

4. The plaintiff's counsel did not, produce the valuation certificate frorn any architect before the Nazir. Instead he produced the photostat copies of the sale agreement of this plot dated 10‑4‑1982, at Rs.30 per square foot, affidavit of Inayatualih seller of the said plot that he had received Rs.44,43,120 as its price from the defendants and valuation certificate dated 10‑8‑1983, which were the documents of defendants themselves. These were produced by the defendants before the Plaintiff‑Bank earlier. Plaintiff's counsel therefore contended that in view of these documents of defendants themselves it would appear that the valuation given by the architect of the defendants was exaggerated by three times. The Nazir therefore, again referred the matter to this Court on 28‑10‑1987. After taking into consideration the reference and the evidence referred to above the Court was of the view that the defendants had failed to satisfy that the value of the plot of land which was mortgaged by the defendants by deposit of title deeds was sufficient to satisfy the claim upto Rs.9 millions. The Court by its order dated 22‑11‑1987 observed that the plot of land which was offered as security by the defendants was situated at a distance of couple of furlongs from Yaqoob Biscut Factory of Sukkur. The rate of land in that area was not so high as claimed by the defendants. The rate of residential lands in that area was hardly Rs.10. per square foot while the rate of commercial land would be still less than that. Hence the Court was of the view that the security land would hardly fetch Rs..15 lacs if sold. The defendants were therefore, called upon to make up the deficiency of the security within a month.

5. Mr. Ghulam Ali Khokhar who appeared for the defendant No.3 contended that the Court should have decided the issue confining itself to evidence brought on record by the parties and should not have imported its personal knowledge in the matter. He relied upon 1985 C L C 1909 (2) (Gulzar Akhtar v. Abdul Hafeez) in this behalf. It may be pointed out that the above ruling relates to a rent case and not to a Bank loan case. In this case the Court has to decide sufficiency or otherwise of a security. The fact that officers of the Plaintiff's Bank had failed in their duty to produce the evidence of an architect against the evidence of architect led by the defendants does not tie the hands of Court to accept the value of the, property shown by the defendant's architect. The Court has ample power to examine as to whether the valuation estimated by the defendants' architect was reasonable. If .the Court was of view after going through other evidence available on record as well as from glaring facts and circumstances of daily life that the defendants had put up a valuation which was highly exaggerated then the Court could hold that security was insufficient. The defendants also appeared to have earlier managed with the Officers of the Bank to get accepted the said plot as security at the valuation of Rs.44,43,120 and the same amount appears to be exaggerated. They were now putting it up at Rs.9 Millions. Both these valuations are so inconsistent that the Court can refuse to accept the plot as a sufficient security at a high amount of Rs.9 Millions which was accepted at Rs.44,43,120 only 5 years ago, and can ask the defendants to make up the deficiency. I, therefore, do not find any merit in this application for review.

6. Banking Companies (Recovery of Loans) Ordinance, 1979 was enacted to save the Banks from the atrocities of its defaulting creditors as well as unscruplous bank officials. It has given wide powers to the Courts to safeguard the interests of the Banks. By section 11 it gives finality to the orders of this Court. Section 12 of the Ordinance makes restricted provisions for appeals. There is no provisions for review of any order passed by this Court in exercise of jurisdiction conferred upon it by Banking Companies (Recovery of Loans) Ordinance 1979. It will be useful to reproduce sections 11 and 12 of the said Ordinance.

"(11) Finality of Order‑‑. Subject to the provisions for appeal in section 12 no Court or other authority shall call or permit to be called in question any order, judgment or sentence of a Special Court or the legality or propriety or anything done or intended to be done by the Special Court under this Ordinance.

(12) Appeals.‑‑ (1) Any person aggrieved by any order, judgment, decree or sentence of a Special Court may, within thirty days of such order, judgment, decree or sentence, prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed:

Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court.

(2) An appeal under subsection (1) shall be on any one of the following grounds, namely‑.‑

(a) the decision being contrary to law or to some usage having the force of law, or

(b) the decision having failed to determine a material issue of law or usage having the force of law, or

(c) a substantial error apparent in the procedure provided by or, under this Ordinance, which may possibly have produced error in the decision on merits.

(3) An appeal may be preferred under this section from a decision made ex parte.

(4) An appeal under this .section shall be heard by a Bench of not less than two Judges.

(5) No appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment‑debt, or at the discretion of the High Court, furnishes security equal in value to such amount."

Reference in this behalf may also be made usefully to the case of Hussain Bux v. Settlement Commissioner of Rawalpindi and others reported in P L D 1970 Supreme Court, where it was held as under:‑----

"The right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not a mere matter c f procedure. A review is not available unless it has been conferred by law."

The above decision was re‑affirmed by the Supreme Court in Muzzaffar Ali v. Mohammad Shafi reported in P L D 1981 Supreme Court 94. In this case the D.B. of the High Court had allowed a review application in a rent case and directed the Single Judge to review an order passed by him. The Supreme Court accepted the appeal and dismissed [he application for review on the ground that there was no provision for review of an order in the relevant Rent Ordinance and held as follows:---‑

"The upshot of the above discussion is that looked at from whatever angle the conclusion is inescapable that as the Ordinance neither expressly nor by reference bestows any powers of review, the High Court has no jurisdiction to review its orders passed in a Second Appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959. We hold accordingly."

Both these rulings were cited by the counsel for the defendants 1 and 2 Mr. Habibur Rahman who had conceded that review was not competent.

7. It, is therefore, quite clear that the order of this Court dated 22‑11‑1987 is legally also not open to review. Hence I dismiss CMA. ,No.5405/1987. It was then requested by Mr. Habibur Rahman that some time be allowed to the defendants to make up the deficiency. This request also does not appear to be proper and is therefore refused. Office shall now fix the case for final disposal.

A.A. /P‑66/ K Review application dismissed.