BANK CREDIT AND COMMERCE INTERNATIONAL (OVERSEAS) LTD., KARACHI Versus GLOBAL PRODUCE LIMITED
ORDER
This application is moved by the defendants Nos.l to 5 for un‑conditional leave to defend the suit.
2. The suit has been filed by the plaintiffs, who are Banking Company for the recovery of Rs.79,832,124.20 under Order RXXIV, C.P.C. read with the Banking Companies (Recovery of Loans) Ordinance, 1979. The defendant No. 1 is a registered company and defendants Nos.4, 5 and 6 are its Directors. Defendant No.l has various accounts with the plaintiffs Bank at Karachi. At the request of the defendants, the plaintiffs extended credit and banking facilities in the nature of overdraft, advances and loans including Bank guarantee, and defendant No.l in consideration whereof as security for repayment loan, executed documents of indebtedness including Promissory Notes from time to time in respect of its overall outstanding. The last promissory Note was executed on 4‑8‑1983 in the sum of Rs.86,951,321.39. The defendant No.l also executed various documents including agreement of pledge of goods, The defendants Nos.2 to 6 executed letters of guarantee. Defendant No.l also deposited documents of title of its property bearing No. CF‑1‑5 Survey No. 158, Clifton, Karachi together with construction standing thereupon and executed a deed of collateral mortgage which was registered on 20‑2‑1984. Defendant No.l also executed registered mortgage‑deed in respect of plot bearing Survey No.123, Survey Sheet No.CF‑1‑ Karachi with construction standing thereon on 26‑11‑1983. As a further security for repayment of loan on 5‑7‑1983 the defendant pledged to the plaintiffs various goods and stocks of the defendant No.l including caustic soda, Soyabean oil and Tallow which was held and was in possession of the plaintiff, through their Agents/Bailee/Muccadams, namely Karachi Tank Terminal Ltd. The said Bailees of the plaintiffs attempted to reverse the position of the said pledged goods, therefore, the plaintiffs filed Suit No.463 of 1983 in the High Court of Sind against the said Bailees and others in respect of said goods and Receiver was appointed by the Court. It was found that the said Bailees had handed over the entire quantity of Soyabean Oil to defendant No.l and also a substantial quantity of Tallow leaving behind only 73.351 Metric Tons. The Receiver in pursuance of the orders of the Court sold the Caustic Soda and after depositing specific amount in the High Court, the balance amount of Rs.15,290,798.01 was credited to the LIM accounts of defendant No.l. The plaintiffs then joined the defendant No.l as party to the said suit claiming damages from him to the tune of Rs.2,72,70,000. The defendant failed to lift the other pledged goods which consequently deteriorated and depreciated in value, which were sold by the plaintiff with consent of the defendant and the sale proceeds were credited to the relevant account of defendant No.l. The total outstanding balance against the defendant No.l in various accounts amounted to Rs.79,832, 124.20, for which the plaintiffs filed this suit for the preliminary decree and final decree for the sale of the mortgaged property, and also for money decree against the defendant.
3. The defendant in support of their application for leave to defend the suit have raised various pleas. It is contended that there are long standing dealings between the plaintiffs and the defendants and the plaintiffs had taken blank documents signed by the defendant for the purpose of satisfying the requirements of the State Bank and it was agreed that the documents would not be filled without the consent of the defendant. It is further contended that the registered mortgage‑deeds were also executed for the said purpose and it was further agreed that they were not to be acted upon. It is further submitted that the suit amount includes interest which is in excess of the agreed rate of interest and that 2,00,000 L (Ster'g pounds) paid by the defendant to the plaintiffs Bank at London have not been accounted for.
4. It is also contended that the Bailees of the plaintiffs had misappropriated Caustic Soda to the extent of Rs.29,00,000 and illegally debited the plaintiff with excess storage charges of Rs.43,00,000. It is further submitted that by sale of the goods by the plaintiff, the defendant have suffered loss.
5. With regard to the contention of Mr. Nasim A . Farooqui learned counsel for the defendant that the plaintiffs had obtained blank documents signed by the defendant, it is submitted by Mr. Liaquat Merchant learned counsel for the plaintiff that the documents viz. Promissory Notes etc. were duly filled in, by the _ defendant at the time of the signing of the same, and in support he has relied upon the registered mortgage‑deeds in which the balance and the amount of Promissory Notes and its date are specifically mentioned.
6. It may be pointed that these mortgage‑deeds were registered much after the execution of the Promissory Notes. He has further relied upon the case of Bank of Oman Ltd. v. East Asia Trading Co. Ltd. (1987 C L C 288) wherein a learned Single Judge of this Court has held that filling in the blank in the letter of guarantee relating to amount of loan, advance or overdraft would be deemed to be understood being expressly written in the letter of guarantee that the said guarantor had in fact guaranteed for repayment of all monies which would be due from the debtor. Where amount was not denied, filling up of amount would go in favour of defendant, as being a fixed limit of liability in letter of guarantee.
7. In the case of M/s. United Bank Ltd. v. President Bazm‑e‑Salat and another P L D 1986 Kar. 464 another learned Single Judge of this Court has held that the person to whom blank promissory note was delivered to fill would have authority to fill the same. Such Promissory Note could be completed within three years from the date of delivery and the right to complete an inchoate document is a statutory right without any restriction and could be completed even after death of executant, but such document was to be completed within reasonable time.
8. With regard to the contention of the defendants that the registered mortgage‑deeds were‑executed with understanding that they will not be acted upon, it is contended by Mr. Liaquat Merchant learned counsel for the plaintiffs that oral evidence cannot exclude a documentary evidence specially when the document is registered and it is not contended that this document was signed by the parties under any coercion. It leaves us with the last contention of the' defendants that their pledged goods which were kept with the Bailee of the plaintiff were misappropriated by the Bailee and have not been accounted for. It requires a little detailed examination.
9. Admittedly certain goods of the defendants were pledged with the plaintiffs as security for repayment of the loan in question. Admittedly some of the goods have been disposed of by the bailee of the plaintiffs, who has also preferred a claim in sum of Rs.43,00,000 against the goods of defendant No.l. Admittedly the plaintiffs have filed the suit No.463 of 1983 against this bailee, namely Karachi Tank Terminal Ltd. and others including defendant No.l for the recovery of damages amounting to Rs.2,72,70,000. It is also admitted that some of these goods were delivered by the baliee to defendant No.l, but the defendant No.l has denied the allegation that he obtained delivery against forged delivery orders. Defendant No.l has also disputed the claim of the bailee against him for Rs.47,00,000. However, these questions can be settled only by the decision of that suit. The value of the pledged goods is not disclosed by any party, but the fact that the plaintiffs have claimed the said amount in the said suit, the value of those goods would be at least equivalent to Rs.27,270,000.
10. It is stated by Mr. Liaquat Merchant learned counsel for the plaintiffs that as soon as this amount is recovered, the same will be credited to the account of the plaintiff. Thus, there is dispute between the plaintiff and the defendant with respect to this amount.
11. It is also alleged by the defendant No.l that he deposited 2,00,000 L. (sterling) with the plaintiffs Bank at London. The fact of this deposit is not specifically denied by the plaintiff, but it is averred that this deposit, if any, was not towards the payment of loan in question. The plaintiffs do not disclose as to fop what purpose the said deposit was made by the defendants. There is no evidence as to what is the actual exchange rate of . (sterling) against Pakistani Rupees but it is more than Rs.28 per 6. (sterling).
12. In may opinion the defendant has raised plausible defence to the part of the suit amount equivalent to the amounts involved in the two aforesaid disputes. However, defence with regard to the rest of the claim of the plaintiffs is vague.
13. Under the circumstances leave to defend the suit is granted to the defendants on furnishing security to the satisfaction of the Nazir for Rs.4,60,00,000 within three months. The defendant is at liberty to offer the mortgage property as security for the said purpose. It is contended that the plaintiffs had accepted the two properties as sufficient security for Rs.90,00,000 in 1983, but the value of the property has escalated since then. Be that as it may, the Nazir will assess the present market value of the proparty for the purpose of security on the basis of the evidence that may be produced by the parties.
H.B.T./B‑53/K Leave granted.