HCA NO. 196 / 2009
Present:
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
Fateh Textile Mills & Others ______________________________ Appellants
Versus
Allied Bank Ltd. __________________________________________ Respondent
1) For hearing of CMA No. 2864/2014
2) For hearing of CMA No. 2865/2014
3) For hearing of CMA No. 1157/2014
4) For katcha peshi.
5) For hearing of CMA No. 980/2009.
Date of hearing: 17.11.2014
Appellants: Through Mr. Farogh Naseem Advocate along with
Muhammad Saleem Director of the appellants.
Respondent Through M/S Khalid Anwar and Rashid Anwar Advocates.
Intervenor (NBP) Through M/S Sardar Awan, Wasif Riaz & Abid Naseem
Advocates.
O R D E R
Aqeel Ahmed Abbasi, J. This High Court Appeal was filed by the appellants impugning two orders passed by the learned Single Judge of this Court dated 02.04.2007 and 12.06.2009 in Execution Application No.69 of 2014 in Suit No.B-32/2002, which was decreed in terms of the compromise arrived at between the parties through agreement dated 09.08.2002. This High Court Appeal was pending since 2009 and was being heard by various Benches of this Court, however, when this matter was taken up for hearing before this Bench on 18.08.2014, following order was passed:-
“18.8.2014.
During the course of arguments the learned Counsel for respondent under instructions has very candidly stated that instant High Court Appeal can be disposed of provided the amount as stipulated in the settlement (Agreement) of Allied Bank Limited with Fateh Textile Mills Limited dated 5.10.2005 available at page 131 of instant High Court Appeal is implemented in letter and spirit and the appellants makes payment of the entire amount i.e. Rs.1300 million subject to adjustment of Rs. 65 million already paid. Learned Counsel for appellants requests for short adjournment to seek instructions in this regard.
By consent adjourned to 25.8.2014 at 11 A.M. Interim orders to continue till next date of hearing."
2. Pursuant to aforesaid order, when the matter was taken up for hearing on 25.08.2014, another order was passed in the following terms:
“25.8.2014.
Learned Counsel for the appellants pursuant to order of this Court dated 18.8.2014 has sought instructions from his client who according to the learned Counsel is agreeable to the proposal, as detailed in the aforesaid order and submits that the appellants will deposit the amount of Rs.1235 million (1300 million – 65 million) before the Nazir of this Court within one month, whereas, respondents may be directed to deposit the securities held by them as detailed in annexure B from serial No. 1 to 7 to the agreement dated 9.8.20902 available at page 123.
Mr. Mustafa Ali holding brief for Mr. Khalid Anwar, submits that the latter could not attend the Court on account of his illness and submits that he has been instructed to note down the proposal of the Counsel for the appellants and requests for short adjournment to seek instructions in this regard.
By consent adjourned to 1.9.2014 at 11 A.M. Inter order passed earlier to continue till next date of hearing.”
3. Thereafter, when the matter was taken up for hearing on 13.10.2014, this Court after having taken cognizance of the aforesaid orders passed by this Court in the presence of the Director of the appellant company i.e. Muhammad Saleem and the learned counsel for both the parties, passed further order in the following terms:
“Today, Mr. Khalid Anwer, learned counsel for the respondent/bank under the instructions submits that the respondents are agreeable for the disposal of the instant High Court Appeal in terms of the agreement dated 5.10.2005 available at page 131 (Annexure-E) of the instant file and further submits that the disposal of the instant High Court Appeal in terms of the agreement dated 5.10.2005 will not in any manner affect the right of the appellants to pursue in Suit No.B-29/2004 [New No.790/2004] is pending before the Learned Single Judge of this Court , which may be decided on its own merits in accordance with law.
It is further contended by the learned counsel for the respondents that respondent bank is willing to per its obligation in terms of the aforesaid agreement, provided, the appellants may be directed to furnish the pay order of the agreed amount, settled between the parties i.e. Rs.1235 Million in Court, whereas, respondents will bring all the security documents as mentioned at S.No.1 to 6 and all other documents as mentioned in the agreement on the next date of hearing.
Counsel for the appellants under instructions, has consented for disposal of the instant High Court Appeal in the aforesaid terms, however, requests for short adjournment to seek instructions from his clients as to when, the appellants may furnish the pay order of Rs.1235 Million in favour of M/s Allied Bank before this Court.
We have noted the undertaking of both the learned counsel on behalf of their respective clients which may constitute the order of this Court. However, the matter is being adjourned at the request of learned counsel for the appellants for the purpose of seeking instructions from his clients for deposit of the pay order in Court in respect of aforesaid agreed amount in favour of respondent bank. By consent, the matter is adjourned to 17.10.2014 to be taken up at 11.30 a.m.
Interim order passed earlier to continue till next date of hearing."
4. On 17.10.2014, when the appellants in view of the undertaking as recorded hereinabove, which constituted the order of the Court, was required to deposit the pay order in Court in respect of agreed amount of Rs.1235 million to be paid in favour of the respondent bank, the counsel for the appellants did not appear in Court on the ground of his illness and the matter was adjourned by consent to 24.10.2014, when neither the appellants nor his counsel shown appearance nor any intimation was received on their behalf and reluctantly the matter was adjourned to 13.11.2014 with the directions to the appellants and his counsel to comply with the order of this Court, pursuant to undertaking given by the appellants which also constituted the order of this Court. On 10.11.2014, the appellants through its Director Muhammad Saleem filed two CMAs bearing No.2864/2014 and 2865/2014 under Section 107 CPC on which Notice was ordered for 13.11.2014. On 13.11.2014, when the matter was taken up for hearing, it transpired that the Notice of the aforesaid applications could not be served upon the respondent bank or his counsel due to negligence of the branch clerk, however, learned counsel for the respondent bank waived Notice of both the applications, and the matter was adjourned to 18.11.2014.
5. Today, when the matter was taken up for hearing of the aforesaid applications and the appeal, learned counsel for the respondent has vehemently opposed such two applications filed by the appellants at this stage, when according to learned counsel, the matter has duly been settled between the parties pursuant to undertaking given by the appellants through its Director Muhammad Saleem and their learned counsel, which constitutes as the part of the Court’s order, hence binding on both the parties. It has been further argued that through both the listed applications filed under Section 107 CPC, the appellants have attempted to frustrate the order of this Court and the compromise reached between the parties in Court, which is not only abuse of the process of law but also amounts to contempt of Court’s order, as referred to hereinabove.
While confronted with such contention of the learned counsel for respondent and in view of the orders passed by this Court as referred to hereinabove on the basis of undertaking given by the appellants through its Director Muhammad Saleem and the learned counsel, the Director of the appellants company present in Court along with learned counsel for the appellants, have candidly stated that they will not press the listed applications, as according to learned counsel for appellants, the same were filed due to inadvertence and in view of some misunderstanding, whereas, the appellants never intended to abuse the process of law or to make an attempt to frustrate the orders of this Court and further extended their no objections if instant appeal may be disposed of on the basis of undertaking given by the appellants for payment of Rs.1235 million in favour of the respondent bank.
6. Accordingly, both the listed applications being CMA No.2864 and 2865 of 2014 are hereby dismissed as not pressed, whereas, instant High Court Appeal is disposed of along with listed applications by consent of the parties and their respective counsel in the terms as already recorded hereinabove.
JUDGE
JUDGE
ARSHAD/