2014 C L D 1220

2014 C L D 1220
[Peshawar]
Before Malik Manzoor Hussain, J
Messrs UNITED RUBBER (PVT.) LIMITED and 4 others---Plaintiffs
Versus
BANK OF KHYBER, (BOK)---Defendant
B.O.S. No. 2-P of 2012, decided on 3rd February, 2014.
Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---
----S. 5(8)---Specifc Relief Act (I of 1877) Ss. 42 & 54---Consolidated suit for
recovery of fnances fled by Financial Institution and suit for declaration,
permanent injunction and rendition of accounts fled by customer/borrower---
Appointment of amicus curiae for assistance on technical aspects of banking
transactions---High Court observed that the moot issue between parties was
with regard to availed fnancial facilities and disbursement of the same; which
could be adjudged by invoking provisions of S. 5(8) of the Financial Institutions
(Recovery of Finances) Ordinance, 2001---Borrower had already applied for
appointment of a commissioner and had offered payment of fee(s) for said
commissioner therefore it would be in the interest of both parties that a well
reputed and experienced commissioner be appointed to properly audit the
accounts submitted by the parties---High Court appointed a commissioner to
audit the accounts maintained by the bank with that of the borrower for the
purpose of fnding out the liabilities of the parties and directed that the fee for
said audit be settled by the borrower and further directed the parties to
associate themselves with the commissioner and make available to him, the
concerned record as and when required.
Saalim Salam Ansari for Plaintiffs.
Nazirullah Qazi for Defendant.
Date of hearing: 3rd February, 2014.
JUDGMENT
MALIK MANZOOR HUSSAIN, J.---This single order is meant to decide (1)
C.M. No.5-P of 2013 fled in suit B.O.S. No.2-P of 2012 for consolidation of Suit
No.1-P of 2013 and Suit No.2-P of 2013, (2) C.M. No.9-P of 2013 fled in Suit
No.1-P of 2013, (3) C.M. No.8-P of 2013 in Suit No.1-P of 2013, (4) C.M.
No.10-P of 2013. As all the C.Ms. are fled in respect of Common issues
involved in both the suit between the same parties pending disposal before this
Court.
2. The suit bearing No. B.O.S. No.1-P of 2013 titled Bank of Khyber v. Messrs
United Rubber (Pvt.) Limited and others has been fled on 1-1-2013 by the
Bank for recovery of Rs.17,23,57,266 of amount as persistent default. While
the suit B.O.S. No.2-P of 2012 titled Messrs United Rubber (Pvt.) Limited and
4 others v. The Bank of Khyber has been fled on 10-11-2012 by the borrower
for recovery excess paid amount of Rs.140,581,162 declaration, permanent
injunction, rendition and settlement of account.
3. Perusal of record reveals that subject matter of above caption suits is the
same as the dispute, issues, mortgage property, parties and the impugned
fnances of both the suits are the same. Thus prayer for consolidation of both
the suits seems genuine and would be in the interest of justice as well as in the
interest of both the parties, because joint trial of both the suits would certainly
obviate possibility of the confict of Judgments. Thus in order to avoid
multiplicity of proceedings, the application bearing numbers C.M. No.5-P of
2013 in Suit No. B.O.S. No.1-P of 2013 for consolidation of suits is accepted.
4. As observed above that the moot issue between the parties is with regard to
availed fnancial facilities and disbursement of same which can be adjudged
through invoking the provision of section 5(8) of Financial Institutions
(Recovery of Finances) Ordinance, 2001. Since the borrower has already
applied for appointment of the Commissioner and had offered the payment of
charges of the Commissioner, therefore it would be in the interest of both the
parties that a well reputed, experienced Commissioner be appointed to
properly audit the accounts submitted by the parties, in order to resolve the
controversy amicably.
5. Today on behalf of Borrower Company Mr. Iqbal-ur-Rehman is present in

Court, while on behalf of Bank learned Counsel Mr. Nazirullah Qazi, Advocate
is present. Both the parties were required by this Court to provide list of
reputed Charted Accountants or any other professional ofcial to be appointed,
as Commissioner. The list provided by the Borrower Messrs United Rubber
(Pvt.) Ltd. comprises the names of:--
(1) Ashfaq Ahmad, AVP (R),

Habib Bank Limited, MBA
(Finance), LLM; PGDPA, DAIBP (S-1), C/O Ashfaq and
Associates, TF-40, Deans Trade Centre, Saddar Road,
Peshawar Cantt.
(2) Shahid Sami & Co.

Chartered Accountants, Lamsy Arcade,
1st Floor, Fakhr-e-Alam Road,
Peshawar Cantt.
(3) Shahid Ahmad & Co.,

Chartered Accountants,
19 A, Jamrud Lane, University Town;
Peshawar.
The list provided by the Bank Comprises the names of:--
(1) FTC Rayga Finance & Tax Consultants

a Multi-Dimensional Consultancy Firm TF-340,
Third Floor, Deans Trade Centre Saddar Road,
Peshawar Cantt. N.-W.F.P., Pakistan.
(2) Tariq Ayoub Anwar & Co.

Chartered Accountant
Flat No.9, Sial Flats, Abadara Chowk,
University Road, Peshawar.
(3) Zeeshan Ali & Co.

Chartered Accountants
8th Floor, State Life Building
The Mall, Peshawar Cantt.
Both the lists provided are part of record of fle.
6. The names proposed by the Borrower Company were provided to the

learned counsel for the Bank and with the mutual consent of both the parties,
Mr. Ashfaq Ahmad, AVP (R), Habib Bank Limited. MBA (Finance), LLM,
PGDPA, DAIBP(S-1), C/O Shfaq and Associates, TF-40, beans Trade Centre,
Saddar Road, Peshawar Cantt. is appointed as Commissioner to audit the
account maintained by the Bank, with that of the Borrower for the purpose of
audit with fnding to the liabilities of the parties. The fee would be settled and
borne out by the Borrower. The learned Commissioner will submit his report to
Court within a period of two months from receipt of order of this Court. Both the
parties are directed
to associate with the learned Commissioner and make available the concerned
record as and when required. Adjourned to 21-4-2014.
KMZ/161/P Order accordingly.

;

2014 C L D 1220

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2014 C L D 1220

Before Malik Manzoor Hussain, J

Messrs UNITED RUBBER (PVT.) LIMITED and 4 others---Plaintiffs

BANK OF KHYBER, (BOK)---Defendant

B.O.S. No. 2-P of 2012, decided on 3rd February, 2014.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

Saalim Salam Ansari for Plaintiffs.

Nazirullah Qazi for Defendant.

Date of hearing: 3rd February, 2014.

5. Today on behalf of Borrower Company Mr. Iqbal-ur-Rehman is present in

(1) Ashfaq Ahmad, AVP (R),

(2) Shahid Sami & Co.

(3) Shahid Ahmad & Co.,

The list provided by the Bank Comprises the names of:--

(1) FTC Rayga Finance & Tax Consultants

(2) Tariq Ayoub Anwar & Co.

(3) Zeeshan Ali & Co.

Both the lists provided are part of record of fle.

6. The names proposed by the Borrower Company were provided to the

KMZ/161/P Order accordingly.

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