MUHAMMAD HANIF Versus NATIONAL BANK OF PAKISTAN

MUHAMMAD ASADULLAH, J.‑ ‑The respondent filed a suit for recovery of Rs.1,02,372.59 with costs and interests against the appellant alleging that the appellant had received a loan of Rs.74,905 after pledging 207 Maunds of Tobacco on 29‑4‑1975 but had then failed to pav back the same alongwith the interest accrued thereon. The suit was decreed by the learned Special Judge (Banking) Lahore, vide judgment, dated 10‑12‑1983. The present appeal has been filed against the said judgment and decree by the appellant in forma pauperis. We have perused the record and have heard arguments.

2. The learned counsel for the respondent has argued that under Article 170 of the 1st Schedule to the Limitation Act, 1908, as also under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, the limitation for filing of an appeal is 30 days. A This period of limitation is not disputed by the appellant. He has filed an application under section 5 of the Limitation Act 1908 for condonation of delay which of course is opposed by the learned counsel for the respondent. The only ground taken by him for the condonation of delay is that he had, on wrong advice of a lawyer, taken that the appeal could be filed within 90 days and. therefore, he could not file the appeal earlier. No evidence to prove such a plea is necessary. Ordinarily, in civil cases ‑the period for limitation for a first appeal to the High Court is 90 days. Therefore, we believe that the appellant had some misunderstanding about the law and as he was filing the appeal himself in forma pauperis he could not check up the legal requirements himself and due to the said reasons he could not file the appeal within the prescribed time. The appellant has not contested the claim against him. His only plea had been that the Tobacco pledged by him had been lost due to the negligence of the respondent and he was entitled to deduct the price thereof from the debt against him. It is an admitted fact that except for 75 Maunds of Tobacco the' remaining Tobacco has been lost due to one reason or the other and B the appellant is the real person to suffer on account of the same. Keeping in view this conduct of the parties it is all the more necessary that the delay in filing the appeal should be condoned. Accordingly we condone the delay in filing the appeal.

3. Tobacco weighing 207 Maunds was admittedly pledged by they appellant with the respondent Bank. The respondent had insured the said pledged goods and had been burdening the appellant with the C costs incurred on the same. Similarly, they have been burdening the appellant with the salary of the Chaukidar appointed to guard the godown and the pledged goods stocked therein. A Local Commissioner was appointed by the learned trial Court who found that except for 75 Maunds of Tobacco the remaining Tobacco was non‑existent. The appellant contends that the remaining 75 Maunds of Tobacco is in fact not the real Tobacco but is a mixture of leaves and dust. However, there is no evidence to prove or even to show that the said 75 Maunds of Tobacco is not a real Tobacco. Therefore, we cannot hold that the said quantity now lying in the godown of his son is not Tobacco. However, the remaining Tobacco weighing 132 Maunds cannot be accounted for by the respondent. In fact when they had insured the goods and when they had been guarding the stock through a Chaukidar and that too on the expenses of the appellant it was the duty of the respondent to account for the same. Even if the Tobacco was pilfered or stolen they could take up the matter with their insurer and could recoup the deficiency by legal means. In any case the loss was due to the negligence of the respondents and they are, therefore, liable to account for the same to the appellant. In other words they are bound to allow the deduction of the price thereof from the amount outstanding against the appellant. There is no evidence on record that the price of Tobacco had risen after the same was pledged with the respondent. According to the statement of accounts/pledge the price of Tobacco then was Rs.370 per Maund. Therefore, the loss of 132 Maunds has to be evaluated at the said rate. The same will come to Rs.48,840.

4. The appeal is partly accepted. A sum of Rs.48,840 shall be deducted from the decretal amount. Subject to this deduction the decree of the learned trial Court is maintained. The cost and interest awarded by the learned trial Court will also be recalculated on the decretal amount (less the said amount of Rs.48,840). The costs of this Court will be borne by the parties themselves.

S.Q./M‑654/L Appeal partly accepted.