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Petitioner: SHAHZAD KHAN VS Respondent: Khawaja M. ASIFHonorable Justice PARVEZ AHMADAshtar Ausaf Ali,Umar Masood and Jahanzeb Khan Bharwana
2003 M L D 1394
2003 M L D 1394
[Lahore]
Before Mian Muhammad Najam-uz-Zaman and Parvez Ahmad, JJ
SHAHZAD KHAN---Appellant
Versus
Khawaja M. ASIF and 3 others---Respondents
Election Appeal. No. 197-A of 2002, heard on 12th September, 2002.
Representation of the People Act (LXXXV of 1976)-----
----Ss.14(5) & (5 A)---Representation of the People (Conduct of Elections) Rules, 1977, R.5---Appeal---Appellant sought cancellation of nomination papers of respondent candidate, on the ground that he had availed loans from the Banks and had defaulted in repayment of these loans and different suits were pending and some had been decreed against him---In one suit which was pending in the High Court, it had been ordered by the High Court that till further orders the respondent be not treated as a defaulter while in another suit decree passed in favour of the Bank was against some other party and the respondent was not defendant in that suit---Respondent had disputed his liability and execution of the personal guarantee and the matter being pending in the Court no liability of repayment of loan by respondent had been determined yet---Respondent had though made payment of 25 % of his share out of the decretal amount,, in another suit, but the suit was decreed alongwith the cost of fund and law charges and the respondent was still to make the payment of the outstanding amount---Respondent was directed to make deposit the remaining amount within seven days from the date of the order otherwise his nomination papers would stand cancelled.
Ashtar Ausaf Ali for Appellant.
Umar Masood and Jahanzeb Khan Bharwana for Respondents.
Date of hearing: 12th September, 2002.
JUDGMENT
PARVEZ AHMAD, J.---The appellant seeks cancellation of nomination papers submitted by respondent No.1 for Constituency N.A.110, Sialkot that the respondent being proprietor of the Sialkot Dairies availed loans from the Agricultural Development Bank of Pakistan and that of Bankers Equity Ltd. and his defaulted in repayment of these loans.
2. Learned counsel for the appellant has submitted that in Suit No.5 of 1995 which is pending adjudication in this Court (suit for recovery of Rs.12,80,45.876) against the present respondent No.1, his spouse and others on interim decree amounting to 8.10,84,98,391 had been passed on 19-11-1999. It is also alleged that Agricultural Development Bank of Pakistan, Gujranwala brought a suit for recovery of Rs.70,48,932 before the Banking Court-II, Gujranwala which was decreed against respondent No.1, his spouse and others and the respondent has failed to .make repayment of the loan even in spite of an agreement to that effect before the Court. It was also alleged that respondent No.1 got a loan in the name of Sialkot Dairies from the Bankers Equity amounting to Rs.33,518,754 in which a decree has been passed and the amount has not been repaid. It was also alleged that a suit for recovery of Rs.5,860,003 is pending adjudication in the Banking Court, Gujranwala in which the present respondent No.1 is a party and has executed personal guarantee for it.
3. Learned counsel for the respondent has submitted that as regards the Suit No. 5 of 1995 the liability of defendant No. 1 which was not the present respondent was determined and the liability of the present respondent is still pending adjudication and it has been ordered by the High Court that the present respondent No. 1 be not treated as a defaulter. With regard to the decree of the suit from the Banking Court, Gujranwala amounting to Rs.70,48,932 it is alleged that respondent No.1 has paid 25 % of this amount as his share. With regard to the pendency of the suit the respondent No.1 has disputed his liability being that of even having executed a personal guarantee. With regard to the decree passed in this suit brought by the Bankers Equity Ltd., it has been submitted that it was' never passed against the present respondent No.1 and it was passed against the Sialkot Dairies in which the respondent No.1 was never a party.
4. Analysing the submissions of both the parties and perusing the material brought on record with regard to all the four suits it is observed as follows:--
(a)??????? With regard to Suit No.5 of 1995 it has been ordered by the High Court that till further orders the respondent No.1 be not treated as defaulter which fact is conceded to by learned counsel for the appellant as well as the representative of the Bank. Hence the contention of the appellant finds no force to this extent.
(b)??????? The record reveals that the respondent No.1 had made repayment of Rs.1,763.000 as 25% of this share out the amount of Rs.70,48,932 but. the copy of the judgment and decree reveals that amount of Rs.70,48,932 was decreed alongwith the cost of fund and law charges and as such the respondent is still to make payment of the outstanding amount worked out by the Bank which was Rs.1,20,50,614 and so liability to make repayment of the loan to the tune of 25% by the respondent, it comes to Rs.30,12,654. As such the respondent has failed to make payment of the remaining amount. Upon a question by this Court, the respondent is willing to make the deposit of the remaining amount. The respondent No.1 is directed to make the deposit of the remaining amount within a period of seven days from the date of this order.
(c)??????? As regards the decree passed in favour of Bankers Equity Ltd., the record reveals that it was passed against Sialkot Dairies in which the respondent No.1 was never cited as defendant and this fact is also conceded by learned counsel for the appellant as such it merits no further discussion.
(d)??????? Now coming to the question of pendency of the civil suit for recovery of amounting to Rs.12,80,45,876 in the Banking Court, the respondent has disputed his liability and has also disputed the execution of the personal guarantee and the matter is still pending, in the competent Court and there is not any determination of any liability of repayment of any loan by respondent No. 1. Hence contention of learned counsel for the appellant also is not supported from the record.
5. Concludingly the appeal is disposed of as follows that the respondent No. 1 is directed to make the deposit of remaining amount of Rs.12,49,354 within seven days from the date of this order. If the amount is paid as directed, the appeal shall stand dismissed. In case of his failure to deposit the amount within specified period in compliance of the direction of this Court, the appeal shall stand accepted and his nomination papers shall stand cancelled.
S.M.B./S-251/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.