ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Execution No.36 of 2001
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DATE ORDER WITH SIGNATURES OF JUDGE(S)
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Dated: 02.10.2018
Mr. Rehman Aziz Malik holds brief for Mr. Hashmat Habib for J/D
Mr. Munawar Juna holds brief for Mr. Khalid Javed for claimant.
Mr. Afshan Jamil for Faisal Bank.
Mr. Gohar Mehmood for NBP.
Mr. Muhammad Ilyas for ABL.
Mr. Danish Ghazi for NIB Bank.
Mr. Ch. Abu Bakar Khalil and Nancy Dean for applicants.
Mr. Faisal Siddiqui for auction purchaser.
Mr. Waseem Chaudhry, Official Assignee.
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A copy from the general ledger is produced by the Nazir office, which is taken on record, which affirms that a sum of Rs.30 Million was deposited in compliance of this Court’s order dated 06.04.2018 on 19.04.2018. These sums, as can be viewed from the various orders passed in this regard, were specifically deposited to facilitate the claims of ex-employees of the judgment debtor company. The Court has been informed that in fact if CMA No.264 of 2016 is decided, entire controversy will come to an end, which application is the second series of restitution application where an earlier application filed was already dismissed by this Court’s order dated 17.03.2015 against which an HCA was filed which was also dismissed and the matter reached to the apex Court where following order was passed:-
“After arguing the petition at some length, learned counsel for the petitioners states that this petition be disposed of by observing that the petitioners will avail remedy afresh before the High Court in terms of Section 144 CPC or under any other provisions of law. This petition is, therefore, disposed of and the petitioners may avail remedy in accordance with law.”
Per learned counsel for the auction purchaser the said order in very clear terms did not permit the judgment debtor to file a fresh application under section 144 CPC rather judgment debtors were left to avail the remedy available to them in accordance with law generically. The long pendency of these execution proceedings, while at one hand it is hampering distribution of sale proceed amongst the consortium of banks and on the other hand, the claim of ex-employees of the judgment debtor are also not settled despite lapse of about 18 years as their rights were protected through an understanding reached between the banks and Official Assignee as per letter dated 09.04.2003 (Page 337) whose relevant paragraph is reproduced as under:-
“It was agreed to have a meeting with Official Assignee, Mr. Bashir A. Memon, in order to apprise him the consent of the lessors for distribution of sale proceeds of NFL to the extent of reserved price of Rs.430 Million on manually agreed basis to settle their long outstanding claims against NFL. The differential of total sale proceeds of Rs.452.50 million and reserved price may be used for payments of dues to labours of NFL, as proposed by Official Assignee. However, simultaneous distribution of sale proceeds should be made to the banks, leasing companies and labours.”
Also pertinent to mention is that the very maintainability of the application bearing CMA No.264 of 2016 is in challenge and this Court time and again has given opportunities to the counsel for the judgment debtor to satisfy this Court on the above ground. A review of the diary sheet shows the conduct of the said counsel appearing for judgment debtor whose brief has been held for the last four dates and who is not even present today, however at the undertaking by Mr. Rehman Aziz Malik that he would proceed with the said application on the next date of hearing being 05.10.2018 at 10:30 a.m., the matter, by way of last opportunity, is adjourned on the aforesaid date/time with clear indication that in case of his absence or if none has appeared on behalf of the judgment debtor to proceed, appropriate orders relying on the material available on record will be passed.
J U D G E