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Application ABL Vs Diamond
Application ABL Vs Diamond
Application ABL Vs Diamond
(Appellate Jurisdiction)
VERSUS
1. M/s Diamond Industries Limited, 23 K.M., Multan Road, Mohlanwal,
Lahore, through Iftikhar A. Shaffi.
9. Mr. Bilal Ejaz son of (Late) Mian Ijaz A. Shaffi resident of 42, Al-
Hamra Society, Tipu Sultan Road, Karachi.
10. Mrs. Farah Waqar wife of Waqar Ahmad Shaffi resident of 94-D,
Model Town, Lahore.
11. Mrs. Seema Iftikhar wife of Iftikhar A. Shaffi resident of 93-D, Model
Town, Lahore.
12. M/s Citifoam Industries (Pvt.) Limited having its office at 23-KM
Multan Road, Mohlanwal, Lahore through Iftikhar A. Shaffi.
13. Mr. Muzammal Ejaz son of (Late) Mian Ijaz A. Shaffi resident of 42,
Al-Hamra Society, Tipu Sultan Road, Karachi.
PETITION FOR LEAVE TO APPEAL UNDER ARTICLE 1852 OF
THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN,
1973 AGAINST THE ORDER DATED 2-7-2008 PASSED BY AN
HONOURABLE DIVISION BENCH OF THE HONOURABLE
LAHORE HIGH COURT IN RFA NO. 431/2007.
Respectfully Sheweth:
1. That the instant Petition is directed against the Order dated 2-7-2008 ("the
Impugned Order") passed by a Division Bench of the Honourable Lahore
High Court in C.M. No. 5/2008 in RFA No. 431/2007 whereby execution of
a decree totaling Rs. 253,652,224.00 with costs and cost of funds in favour
of the Petitioner Bank has been stayed without the statement of any reason
whatsoever. The Impugned Order has been passed suddenly, without notice,
on a fresh Application made by the Respondents even though an earlier
application for suspension of decree had remained pending for several
months without having been seriously pressed by the Respondents. The
present Petition raises the following questions of law of utmost importance:
2. That the present Petition arises out of the following facts and
circumstances:
a) The Petitioner Bank had filed on 8-8-2005 a suit bearing C.O.S. No.
18/2005 in terms of Section 9 of the Financial Institutions (Recovery
of Finances) Ordinance, 2001 before the Honourable Lahore High
Court acting as the Banking Court.
b) The Respondents had filed a Petition for Leave to Defend before the
Honourable Lahore High Court. After hearing extensive arguments
addressed by both sides the Honourable High Court was pleased
through an Order dated 17-1-2007 to allow conditional leave to the
Defendants. The conditional leave granted by the Honourable
Lahore High Court was subjected to deposit by the Respondents a
sum of Rs. 78.6865 million within a period of 90 days. The
Respondents failed to abide by the condition imposed by the
Honourable Court whereupon along with a judgment dated 12-10-
2007 a decree was passed against the Respondents in the sum of Rs.
253,652,224.00 with costs.
The Learned Counsel for the Respondents failed to appear before the
court on the very first date of hearing in the appeal which was 17-12-
2007. On the said date the matter was adjourned without fixation of
any specific date.
Thereafter, the case was again fixed on 29-1-2008 on which date the
main counsel for the appellants again failed to appear and a request
for adjournment was made. The case was adjourned to a date in
office.
3. That on 30-6-2008 the Honourable Single Judge of the Lahore High Court
acting as the Executing Court had approved the terms of a court auction of
the various properties available for an attempt to satisfy the huge liability of
the Respondents towards the present Petitioner. The said order dated 30-6-
2008 had duly taken into account the objections raised by the Respondents
and the reserve price for several properties was enhanced after taking into
account the contentions advanced on behalf of the Respondents. It may
kindly be noted that the process of approval of the terms of sale and
fixation of reserve prices a sensitive to time and circumstances and once
disrupted can take a long time before fresh orders approving the terms of
sale may be procured. That a great deal of work and effort on the part of the
court auctioneers had been expended so as to bring matters to a stage
enabling the order of 30-6-2008 to be passed.
4. That the Impugned Order dated 2-7-2008 is without lawful authority and is
liable to be set aside inter alia on the following:
GROUNDS
ii) That the Respondents had filed an Objection Petition before the
Honourable Executing Court which was disposed off, after being
partially accepted, vide Order dated 30-6-2008. Any grievance
against the aforesaid order dated 30-6-2008 ought to have been
agitated in independent proceedings and not by way of an
application in the pending appeal against the judgment and decree
dated 12-10-2007. That the suspension of the execution process
through the order dated 2-7-2008 has been made in a capricious
manner and the relatively paltry amount of Rs. 39.3432 million that
the Respondents have been directed to deposit was arrived at
arbitrarily.
iii) That the Impugned Order has blocked the recovery of amounts that
are admittedly due to the Petitioner.
iv) That the Impugned Order has been passed in neglect of the terms of
the Order 21 Rule 23A of the Code of Civil Procedures, 1908.
PRAYER
It is also prayed that by way of interim relief this Honourable Court may be
pleased to suspend the order dated 2-7-2008 so as to allow the execution
proceedings to continue.
Any other order deemed just and fair by this Honourable Court may also
kindly be made.
DRAWN BY FILED BY
CERTIFICATE:
As per instructions of the Petitioner, it is first petition against the Impugned Order
dated 2-7-2008 before this Honourable Court.
ADVOCATE-ON-RECORD
IN THE SUPREME COURT OF PAKISTAN,
(Appellate Jurisdiction)
…….APPLICANT
VERSUS
M/s Diamond Industries Limited and others
…….RESPONDENTS
Respectfully Sheweth:
1. That the Petitioner has filed the titled petition before this Honourable Court
not yet been fixed for hearing.
2. That the contents of the enclosed petition may kindly be read as a part and
parcel of this application.
3. That the petitioner has a good prima facie arguable case in their favour and
there is every likelihood of its success in the long run, on the basis of the
grounds taken therein.
a) The Petitioner Bank had filed on 8-8-2005 a suit bearing C.O.S. No.
18/2005 in terms of Section 9 of the Financial Institutions (Recovery
of Finances) Ordinance, 2001 before the Honourable Lahore High
Court acting as the Banking Court.
b) The Respondents had filed a Petition for Leave to Defend before the
Honourable Lahore High Court. After hearing extensive arguments
addressed by both sides the Honourable High Court was pleased
through an Order dated 17-1-2007 to allow conditional leave to the
Defendants. The conditional leave granted by the Honourable
Lahore High Court was subjected to deposit by the Respondents a
sum of Rs. 78.6865 million within a period of 90 days. The
Respondents failed to abide by the condition imposed by the
Honourable Court whereupon along with a judgment dated 12-10-
2007 a decree was passed against the Respondents in the sum of Rs.
253,652,224.00 with costs.
The Learned Counsel for the Respondents failed to appear before the
court on the very first date of hearing in the appeal which was 17-12-
2007. On the said date the matter was adjourned without fixation of
any specific date.
Thereafter, the case was again fixed on 29-1-2008 on which date the
main counsel for the appellants again failed to appear and a request
for adjournment was made. The case was adjourned to a date in
office.
That upon receipt of the notice counsel for the present Petitioner
appeared before the Honourable Court on 18-6-2008 and filed his
Power of Attorney. The case was adjourned to be listed for limine
hearing without any particular date being fixed. The order passed on
18-6-2008 is reproduced here-in-below for ease of reference:
4. That on 30-6-2008 the Honourable Single Judge of the Lahore High Court
acting as the Executing Court had approved the terms of a court auction of
the various properties available for an attempt to satisfy the huge liability of
the Respondents towards the present Petitioner. The said order dated 30-6-
2008 had duly taken into account the objections raised by the Respondents
and the reserve price for several properties was enhanced after taking into
account the contentions advanced on behalf of the Respondents. It may
kindly be noted that the process of approval of the terms of sale and
fixation of reserve prices a sensitive to time and circumstances and once
disrupted can take a long time before fresh orders approving the terms of
sale may be procured. That a great deal of work and effort on the part of the
court auctioneers had been expended so as to bring matters to a stage
enabling the order of 30-6-2008 to be passed.
5. That the Impugned Order dated 2-7-2008 is without lawful authority and is
liable to be set aside inter alia on the following:
GROUNDS
ii) That the Respondents had filed an Objection Petition before the
Honourable Executing Court which was disposed off, after being
partially accepted, vide Order dated 30-6-2008. Any grievance
against the aforesaid order dated 30-6-2008 ought to have been
agitated in independent proceedings and not by way of an
application in the pending appeal against the judgment and decree
dated 12-10-2007. That the suspension of the execution process
through the order dated 2-7-2008 has been made in a capricious
manner and the relatively paltry amount of Rs. 39.3432 million that
the Respondents have been directed to deposit was arrived at
arbitrarily.
iii) That the Impugned Order has blocked the recovery of amounts that
are admittedly due to the Petitioner.
iv) That the Impugned Order has been passed in neglect of the terms of
the Order 21 Rule 23A of the Code of Civil Procedures, 1908.
PRAYER
It is most respectfully prayed that the interim relief before this Honourable
Court may be pleased to suspend the order dated 02-07-2008 so as to allow the
execution proceedings to continue.
Any other order deemed just and fair by this Honourable Court may also
kindly be made.
DRAWN BY FILED BY