Ms Essem Hotels Limited etc Vs The Bank of Punjab

2020 C L D 963

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

ESSEM HOTELS LIMITED and others---Appellants

Versus

The BANK OF PUNJAB---Respondent

Execution First Appeal No. 64797 of 2019, decided on 6th November, 2019.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 15--- Civil Procedure Code (V of 1908), O. XXI, Rr. 66, 67 & 68---Sale of mortgaged property---Proclamation of sale by public auction---Mode of making proclamation---Time of sale---Determination of reserve price---Scope---Appellants assailed order of executing court whereby it had approved the valuation determined by the valuator appointed with the consent of parties---Contention of appellants were that the impugned order was passed in violation of O. XXI, R. 68, C.P.C.; that the impugned schedule of auction was approved without affording opportunity of hearing to the appellants; that mandatory requirements of O. XXI, Rr. 66(2) & 67(2), C.P.C. were not fulfilled; that the description of property given by the Court Auctioneers in the schedule of auction was not correct and that the report of valuators was self-contradictory---Validity---Order relating to appointment of valuator was passed by providing proper opportunity to the parties therefore, it could not be said that the appellants were not provided any opportunity of hearing---Schedule of auction revealed that time and place of auction was mentioned under the heading "Schedule of Auction" and the requirement of O. XXI, R. 67(2), C.P.C. was fulfilled by giving publication of proclamation in the newspaper---Record revealed that the court had appointed several valuators for valuation of property from time to time, and the reports submitted by them reflected the same property---Valuation report and the schedule of auction approved by court mentioned the same property falling under the same khasra number---Impugned order was passed strictly in accordance with law---Appeal, being devoid of any merit, was dismissed in limine.

Muhammad Imran Malik for Appellants.

Hafeez Saeed Akhtar for Respondent.

ORDER

JAWAD HASSAN, J.---Through this Execution First Appeal (the "Appeal"), filed under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance") the Appellants have assailed order dated 11.10.2019 passed by learned Executing Court in Ex.A.No.6-B of 2017.

2.Precise facts of the case are that a suit for recovery of Rs.285,658,427/- was instituted by the Respondent Bank against the Appellants which was decreed with consent of the parties on 12.09.2011 for a sum of Rs.278.102 million in the light of Settlement Agreement dated 07.05.2010 and out of aforesaid amount, the Appellants paid certain amount to the Respondent Bank. However, on default of payment of remaining amount, the R espondent Bank filed an execution petition and sought auction of property measuring 37 Kanals 11 marlas situated at Hadbast Mouza Niaz Baig, Main Canal, Near Doctor Hospital, Lahore. The Appellants earlier sought rejection of valuation report dated 31.08.2018 by filing objection petition bearing No. C.M. No.02 of 2018 which was dismissed on 17.09.2019 with directions to Court Auctioneers to submit schedule of auction on 11.10.2019 and on the said date, the Court approved the schedule of auction. Hence this Appeal.

3.Learned counsel for the Appellants inter alia contended that the impugned order has been passed in clear violation of Order XXI, Rule 68 of C.P.C.; that the impugned schedule of action was approved without affording an opportunity to the Appellants; that mandatory requirement of Order XXI, Rule 66(2) and Rule 67(2) of C.P.C. have not been fulfilled while passing impugned order; that the description of property given by the Court Auctioneers in the schedule of auction is not correct; that the report of Messrs Indus Surveyors (Pvt.) Ltd. is self-contradictory; that the impugned order has been passed in slipshod manner as such same is the result of mis-reading and non-reading of evidence which is liable to be set-aside.

4.On the other hand, learned counsel for the Respondent vehemently controverted the arguments advanced by the learned counsel for the Appellants and prayed for dismissal of instant Appeal.

5.Admittedly, suit filed by the Respondent Bank against the Appellants was decreed with consent of the parties on 12.09.2011 as per terms and conditions mentioned in settlement agreement dated 07.05.2011 wherein the Respondent Bank admitted receiving of certain payment from the Appellants however, due to default in payment of remaining amount, execution petition was filed by the Respondent Bank on 01.02.2017 and Court appointed Court Auctioneers for filing draft of terms of the proclamation. Later on C.M. No.316-B of 2017 was submitted by the Court Auctioneers for undertaking fresh valuation of the properties and with consent of the parties, Messrs Harvester Pvt. Limited was appointed for doing the needful. Meanwhile, an objection petition bearing C.M. No.01 of 2017 was filed by the judgment debtors which too was dismissed on 07.05.2018. After dismiss al of aforesaid application, the Court on 05.06.2018, with consent of the parties, appointed Messrs Indus Surveyors (Pvt.) Limited as third valuator who filed its valuation report on 31.10.2018. The Appellants being dissatisfied from aforesaid valuation report filed another objection petition bearing C.M. No.02 of 2018 which was also dismissed and the Court Auctioneers were directed to file schedule of action. The relevant portion of the order is as follows: - "The appointment of Messrs Indus Surveyors (Pvt.) Ltd. was made with consent of the parties and therefore it does not be hope the applicant/judgment to raise any objections to the valuation determined by the valuators which is to the tune of Rs.805.82 million. Therefore, the valuation determined by the valuators appointed by this Court is hereby approved. This shall be the reserve price for the purposes of proclamation to be drafted by the Court Auctioneers."

6.The Appellants have disputed the order dated 11.10.2019 on the ground that schedule of auction submitted by the Court Auctioneers on 10.10.2019 was approved without affording an opportunity to them. Perusal of record reveals that vide order dated 05.06.2018, the Court appointed Messrs Indus Surveyors (Pvt.) Limited with consent of parties for valuation of the property and report in this respect was submitted on 31.10.2018 and subsequently, an objection petition filed by the Appellants on aforesaid report was also dismissed vide order dated 17.09.2019 with the observation, mentioned supra; mean ing thereby schedule of auction submitted by the Court Auctioneers on 10.10.2019 was approved pursuant to valuation report conducted by Messrs Indus Surveyors. So the orders relating to appointment of Messrs Indus Surveyors were passed by providing proper opportunity to the parties therefore, it cannot be said that the Appellants had not been provided any opportunity of hearing.

7.It is the argument of learned counsel for the Appellants that mandatory requirements of Order XXI, Rule 66(2) and Rule 67(2), C.P.C. have not been fulfilled. Perusal of schedule of auction reveals that time and place of auction has been mentioned under heading "Schedule of Auction" as "Auction at 2:00 p.m. on 09.11.2019 at site" and requirement of Rule 67(2), C.P.C. has been fulfilled by giving publication of proclamation in the News Papers dated 24.10.2019 under heading "Schedule of Auction". So this argument of learned counsel is not tenable.

8.Another stance taken by learned counsel that correct address of the property has not been given by the Court Auctioneers in their schedule of auction. Perusal of record attached with this Appeal reveals that the Court appointed certain valuators, for valuation of the property from time to time, and reports submitted by them reflect same property measuring 37-kanals and 11-marlas falling under Khasra No.13176, Near Doctor Hospital, Mauza Niaz Baig, Lahore. Furthermore, valuation report submitted by Messrs Indus Surveyors (Pvt.) Ltd. on 31.10.2018 and schedule of auction approved by the Court also mentions same property falling under the same khasra. Therefore, this argument is also not confidence inspiring one.

9.As far as the argument of learned counsel with regard to variation in value of property is concerned, it is pertinent to mention here that the Court, in order to resolve the issue, appointed certain valuators for determination of value of the property during different span of time who determined the value of property at the time of their respective inspections and finally Messrs Indus Surveyors (Pvt.) Ltd, appointed with consent of the parties, determined the value to the tune of Rs.805.82 million, as reflected in order dated 17.09.2019 and that the Court Auctioneers submitted schedule of auction on 10.10.2019 also depicts the same amount under the heading of "Reserve Price". So this argument is also not reasonable. It is noted that the Appellants had objected to earlier valuation report by filing objection petition which was dismissed and now they cannot take any other objection/point to set-aside the approved schedule of auction submitted by the Court Auctioneers in the light valuation report submitted by Messrs Indus Surveyors (Pvt.) Ltd.

10.In view of above, we do not see any illegality or perversity in the impugned order which has been passed strictly in accordance with law, as such does not warrant any interference by us. Consequently, the Appeal in hand, being devoid of any merit, is hereby

dismissed in limine.

SA/E-7/L Appeal dismissed.