Messrs MAJID & SONS and anothers vs NATIONAL BANK OF PAKISTAN

' MAULVI ANWARUL HAQ, J.---In execution of a decree for recovery of money passed by a learned Banking Court in favour of the respondent-Bank and against the appellant a property belonging to the appellant/judgment debtor was ordered to be sold. The sale proceedings were conducted.

Objections were filed by the appellants to question the said sale. The application was taken up by the learned Executing Court on 22-2-2001 who directed the appellants to make a deposit of 20% of the sale price before 10-3-2001. The deposit was not made as ordered and the application was rejected on 10-3-2001.

2. Learned counsel for the appellants contends that the application was filed under section 18(6) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and was to be dealt with by the learned Executing Court in accordance with the said provision and the provisions of Order XXI, rule 90, C.P.C. As such were , not to be followed. Learned counsel for the respondent-Bank, on the other hand, has tried to argue that the learned Executing Court could have directed a 20% deposit as a condition for hearing of the objections.

3. It should not take us long to express the agreement with the contention of the learned counsel for the appellant in view of the clear and unambiguous terms of section 18(6) of the said Act of 1997 and as interpreted by the Hon'ble Supreme Court of Pakistan in the case of Pakistan Industrial Credit and Investment Corporation Limited, Peshawar Cantt. And others v. Government of Pakistan through Collector Customs, Customs House, Jamrood Road, Peshawar and others (2002 CLD 1). We find that unlike Order XXI, rule 90, C.P.C., the application whereof stands excluded, the Banking Court has to decide the claim or objection in respect of attachment or sale of any property within 30 days and upon a decision thereon if it .Is found that the objections were mala fide or filed with ulterior motives, penalty at a rate up to 20% of the sale price of the property for the period of delay can be imposed. At the same time notwithstanding the filing and pendency of the said objection the Banking Court may proceed with the sale of the mortgaged or pledged property in its discretion provided it forms an opinion that the interests of justice so required. This is further subject to an undertaking to be given by the decree-holder Banking Company that in case the objections are found to be valid and are upheld a similar penalty is to be paid by it upon adjudication by the Banking Court to the objector.

4. Now in the said case of PICIC the Hon'ble Supreme Court has observed that the provisions of C.P.C. Stand excluded by the non obstante clause of the said subsection (6) of section 18 of the said Act of 1997.

5. Having thus examined the case we find that the learned Executing Court has acted in violation of law as contained in the Statute and as declared in the said judgment, by the Hon'ble Supreme Court by directing the appellant to make a deposit of 20% of the sale proceeds as a condition precedent for the hearing of the objection. This E.F.A. Accordingly is allowed and the impugned order of the learned Executing Court is set aside. The result would be that the objections filed by the appellants shall be deemed to be pending and shall be decided by the learned Executing Court in accordance with the said provisions of section 18 (6) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

6. A copy of this order to be immediately remitted to the learned Banking Court.