NATIONAL BANK OF PAKISTAN Versus M. ISMAIL THAKURSONS LTD

This is a suit for recovery of Rs.1,09,334.42 filed by National Bank of Pakistan against the defendants.

2. Case of the plaintiffs is that they are the successors of the previous plaintiff‑Bank of Bahawalpur Limited. The defendant No.l had and still has an account with the plaintiffs Exchange Branch Karachi. The defendants caused the plaintiff to open Letter of Credits from time to time for imports of stainless steel sheets, CRCA sheets and chemicals. On receipt of L.Cs. referred to above the plaintiff informed the defendant No.l and asked him to retire the said documents. The defendant No.l did not retire the documents by making any payment but requested the plaintiff to get the goods cleared by making payment of customs duty, sales‑tax, clearing charges and all other dues and charges. Consequently the plaintiff paid a sum of Rs.16,995 on behalf of the defendant No.l towards these charges. The defendant No.l took the delivery of the goods imported under the L.Cs. referred to above on following dates against the Trust Receipts:

(1) 13 skids of stainless steel on 31‑7‑1968.

(2) 9 skids of stainless steel, 21 bags of enamel powder, 45 bags of chemicals and 3 bundles of steel sheets on 22‑8‑1968.

(3) 35 bags of chemicals, 3 bundles of steel sheets and 5 bundles of CRCA sheets on 31‑3‑1970.

3. Consequently on 30‑6‑1969 a sum of Rs.61,526.97 was due against the defendants to the plaintiff. Defendant No.l acknowledged in writing his liability for the said amount and promised to pay the same. The defendant No.l also deposited various amounts in his account in partial liquidation of the plaintiff's dues as shown in detail in para. 8 of the plaint. On 27‑10‑1971 a sum of Rs.84,034.71 was due and payable by the defendant No.l to the plaintiff. The defendant No.1 acknowledged its liability and promised to pay its dues. He also executed a pronote on 27‑10‑1971 for a sum of Rs.84,034.71 with interest at 10 per cent per annum with monthly rests. He also executed letter of guarantee on the same day. Hence this suit for Rs.1,09,334.42 with interest at the rate of 11 per cent per annum with quarterly rests from the date of suit till payment as well as costs.

4. The suit has been contested by the defendants. Defendant No.l is the limited company while defendant No.2 is its Managing Director. It admitted that the defendant No.l had and still has an account in its name as a limited company and that the defendants had caused the plaintiff to open L.Cs. as alleged. It is however, stated that the defendants have imported only one skid of stainless steel sheets of very small value while the other items of import were CRCA sheets, steel cuttings, chemicals and enamel powders. They denied that they had received 13 skids of stainless steel on 13‑7‑1968 or 9 skids of stainless steel on 22‑2‑1968 or 5 bundles of CRCA sheets on 31‑3‑1970. It is further alleged that even one skid of stainless steel sheets which was imported by the defendants is still in plaintiff's custody. It is alleged that in the year 1968‑69 the plaintiff had obtained signatures of defendant No.2 on certain blank trust receipts, blank pronote, blank letter of guarantee and other blank documents, which were subsequently filled in by them by typewriter and have been used in this suit.

On the pleadings of the parties the following issues have been framed:‑---

(1) Whether the plaintiff got the goods in question cleared from the customs authorities?

(2) Whether any goods of the defendants are with the plaintiff?

(3) Whether the defendant No.2 was not in Karachi on 31‑3‑1970 and he did not sign the Trust Receipt dated 31‑3‑1970?

(4) Whether any blank Trust Receipt has been utilized by the plaintiff?

(5) Whether the defendant No.2 was out of Karachi on 27‑10‑1971 and as such did not sign the promissory note dated 27‑10‑1971?

(6) Whether the defendant No.2 did not sign the letter of guarantee dated 27‑10‑1971 and was not in Karachi on the said day?

(7) Whether the suit is barred by limitation?

My findings on these issues are as follows:‑

(1) As follows.

(2) As follows.

(3) As follows.

(4) Yes.

(5) Yes.

(6) No.

(7) As follows.

(5) Reasons.;

Plaintiff has examined P.W. Ayazuddin Khan Bank Officer as exhibit 5, who has produced the following documents:

(1) L.C. exhibit 5/1.

(2) Bill of Entry exhibit 5/2.

(3) Trust Receipts exhibits 5/3, 5/4 and 5/5.

(4) Letters of request of defendants exhibits 5/6 to 5/19.

(5) Letters of the clearing agent to the bank intimating delivery exhibits 5/20 to 5/28.

(6) Bill of Lading exhibit 5/29.

(7) Pay order exhibit 5/30.

(8) Letter of the Eastern Atlantic Company exhibit 5/31.

(9) Lending permit exhibit 5/32.

(10) Octrol receipt exhibit 5/33.

(11) Loan application form exhibit 5/34.

(12) Pro‑note exhibit 5/35.

(13) Letter of guarantee exhibit 5/36.

(14) Letters of acknowledgements exhibits 5/37 and 5/38.

(15) Pay in slips exhibits 5/39 and 5/40.

(16) Agreement of clearing agent exhibit 5/41.

(17) Letter of disbursement of loan exhibit 5/42.

(18) Fate memo exhibit 5/43.

(19) Letter regarding gas charges exhibit 5/44.

(20) Stock possession exhibit 5/45.

(21) Statement of accounts exhibits 5/46, 5/47 and 5/49.

(22) Confirmation letter exhibit 5/48.

As against this the defendant No.2 has examined himself as exhibit 6.

6. The plaintiff's witness Ayazuddin exhibit 5 has stated that defendant Mohammad Ismail had opened L.C. No.199 of 1967 in their bank through Habib Bank Limited Foreign Exchange Branch. When the documents arrived they asked the defendants to retire the same but they did not do so. Consequently, the goods were cleared from the Coustoms Department by the plaintiff who kept them in godown. The L.C. has been produced as exhibit 5/1 and the bill of entry as exhibit 5/2. He has further stated that the bank paid the Customs duty and sales‑tax of the goods. He has produced 3 trust receipts exhibits 5/3, 5/4 and 5/5 and stated that these receipts purport to bear the signatures of defendant Mohammad Ismail but he does not remember if he signed the same in his presence. He has also produced letters exhibits 5/6, 5/7 and 5/8 on the basis of which delivery was ordered and trust receipts were obtained after the delivery of goods to the defendant. He has also produced delivery order exhibit 5/9.

It will be necessary to compare these documents with each other and to see if the plaintiff is able to prove from these documents his allegation that he delivered to the defendant all articles mentioned in trust receipts as stated in para 6 of the plaint.

7. A perusal of plaintiff's own document L.C. exhibit 5/1 would show that the defendants had opened L.C. for mild sheet CRCA gauges C.B. 16, 24 and 26 and stainless steel of gauge B.G.24 on 11‑11‑1967 and bill of entry exhibit 5/2 shows that on 19‑6‑1968 miled steel sheet only had been sent by the consigner for the defendants.

The first letter written by defendant Mohammad Ismail to the bank exhibit 5/6 is dated 18‑5‑1968. Its reference number is CRCA/1168. By this letter the defendant had asked the plaintiff to deliver the following skids against trust receipt:‑

"No. Gauge Net Weight Lbs.

(2) 29 1620

(3) 30 4260

(?) 30 5370

(8) 30 4050

(9) 38 5540

(10) 30 2875

(12) 28 1405

(13) 30 1105

(14) 30 2630

(15) 30 4090

(16) 30 945

(18) 30 5335

(22) 28 1525

40810 at 13/6 Lbs. per rupee.

The amount comes to Rs.18,836."

8. Its corresponding delivery order is exhibit 5/9. It shows that the bank had directed the godown keeper of their Exchange Branch to deliver 13 skids of CRCA of numbers 2,3,7,8,9,10,12,13,14,15,16,18 and 22 to the defendant. No letter has been produced by the plaintiff's witness from Jowsons who were the clearing agents to show that they had delivered to the defendant any number of skids of stainless steel in pursuance of their delivery order. The plaintiff has produced letter exhibit 5/7 wherein the defendant had requested the plaintiff to deliver 45 bags of enamel powder against trust receipt on 2‑7‑1968, but neither any order of the bank directing the godown keeper of the clearing agent M/s.Jowson has been produced nor any other proof of the delivery of this enamel powder is available on the record. However, this point loses its importance because the defendant had admitted that he had made request for the supply of these 45 bags of enamel powder which had been delivered to him as well. Besides exhibits 516, 5/7, 5/17 and 5/18, all other letters of request from the defendant are for delivery against cash payment. Exhibits 7 / 7 , 5 / 17 and 5 / 18 are for bags of enamel powder which are not disputed. Hence it would appear that the only disputed letter is exhibit 5/6 which speaks about the CRCA sheets 13 skids. This letter of request supported by delivery order exhibit 5/9 makes it clear that these 13 skids of CRCA sheets were requested to be delivered on 18‑5‑1968 and the delivery order was also issued on the same date i.e. 18‑5‑1968. Hence the trust receipt exhibit 5/3 which is dated 31‑7‑1968 and which speaks of stainless steel 13 skids value 25000 rupees does not tally with either the description of the articles given in the letter of request and delivery order or with the date given in these two documents nor with the value thereof. Nobody will be prepared to deliver that the goods requested to be delivered on 18‑5‑1968 and ordered to be delivered on the same date as CRCA Sheets were delivered after 2 months as shown in the trust receipt and that also with a different name. The allegation of the defendant, that the signature on this trust receipt was obtained from him on blank form and filled in subsequently, appears to be weighty and substantial.

9. The second letter of request is exhibit 5/7 and is dated 2‑7‑1968. In this letter there is request for delivery of 45 bags of enamel powder only. No corresponding delivery order of the bank has been produced by the plaintiff nor the corresponding letter of Jowson making the delivery of these 45 bags has been produced. The corresponding trust receipt exhibit 5/4 is dated 22‑8‑1968. It shows that 9 skids of stainless steel, 21 bags‑of enamel powder, 45 bags of chemical and 3 bundles of steel sheets were delivered to the defendant on 22‑6‑1968. It is not believable that the delivery of these items was made to the defendant after one month and 20 days of the request. Similarly it is also not believable that 9 skids of stainless steel and 3 bundles of steel sheets could have been deliverd to the defendant by these trust receipts although there was no letter of request for the same nor any delivery order was issued by the bank nor any intimation by Jowson, the clearing agent, in whose godown these articles were lying has been produced. Signature on this letter is also alleged to have been taken from the defendant while it was a blank form and the particulars appear to have been typed subsequently. Since the defendant has not disputed the delivery of 21 bags of enamel powder and 45 bags of chemical mentioned in this trust receipt therefore .I do not propose to discuss the same. The third letter of request produced by the plaintiff's witness is exhibit 5/8, it is dated 18‑2‑1969. It relates to 3 skids of CRCA sheets. This letter of request states that delivery should be made against the payment and not against the trust receipt. Neither the corresponding delivery order nor the corresponding letter from M/s. Jowson intimating the delivery of these articles has been produced. It is not believable that the request made on 18‑2‑1969 would be complied on 31‑3‑1970 i.e. after more than one year and one month and that also on credit when the request was for delivery against the cash payment. This trust receipt has also been denied by the defendant and it is alleged that his signature was taken on the blank form and the particulars were wrongly filled in with typewriter. It is therefore quite clear that the plaintiff has hopelessly failed to prove that he had delivered to the defendant 13 skids of stainless steel on or about 31‑7‑1968 or 9 skids of stainless steel and 3 bundles of steel sheets on 22‑8‑1968 and 3 bundles of steel sheets and 5 bundles of CRCA sheets on 31‑3‑1970,on credit.

10. Mr. Mohammad Saleem, Advocate who appeared for the plaintiff has contended that the fact that the plaintiff has failed to prove the delivery of steel sheets etc. should be ignored, because the defendant himself had admitted vide confirmation‑ slips exhibits 5/37 and 5/38 that the balance of amount shown therein was outstanding against him on 30‑6‑1969 and 31‑12‑1969. He also executed a pronote for Rs.84,034.71 on 27‑10‑1971 and such a letter of guarantee on the same date. The defendant has admitted his signatures on all these documents but had denied their contents. He has alleged that the plaintiffs manager had obtained his signatures on the blank forms of all these documents, which was alleged by him to be the common practice of the bankers and had subsequently filled in these forms. It will be interesting to note that although all these document purported to have been executed on different dates and even in different months and years but the typewriter with which their blanks have been filled in appears to be the same and even the condition of the ribon which has been used in this typewriter is the same. This clearly supports the allegation of the defendant that the blanks of all these documents were filled in at one particular time. Even P.W. Ayazuddin, plaintiff's only witness, had admitted that the defendant had not signed these documents in his presence. Hence I am satisfied that these documents were no doubt signed by the defendant but were not signed on the dates shown therein and were not executed as alleged by the plaintiff for consideration, but signatures of the defendants were obtained on the blank forms of these documents and have been subsequently filled in.

11. Mr. Muhammad Saleem, Advocate who appeared for the plaintiff further submitted that since the defendants had admitted having signed the blank pronote which is a negotiable instrument the presumption that this was drawn for consideration, shall arise under section 118(a) of the Negotiable Instruments Act. He further contended that a person to whom a blank pronote was delivered would have authority to file the same by virtue of section 20 of the Negotiable Instruments Act. In this connection he relied upon the case of U.B.L. v. President Bazme Salat reported in P L D 1987 Kar. 464 and Bank of Oman v. East Asia Trading Co. reported in 1987 C L C 288. There can be no cavil with the proposition that where a pronote is signed on a blank form and delivered to the plaintiff he would have authority to fill in the same but such an authority has to be pleaded by the plaintiff. It is not the case of plaintiff that this pronote was given as signed on blank form with authority to fill and they had subsequently filled the same. Moreover, this pronote was proved to be without consideration and hence the plaintiff cannot be termed as the holder in due course. Section 20 would, therefore, not apply. There can also be no cavil with the proposition that the burden of proof of non‑payment of consideration in a case where execution is admitted of a negotiable instrument would be upon the excutant of the document but admission of signing a blank document does not amount to admitting its execution. Reliance was placed in Abdul Karim v. U.B.L. 1984 S C M R 568 in this behalf.

12. Even if it is assumed that burden to disprove the consideration was on the defendant, then also it is to be seen as to how the defendant may discharge that burden. It is a settled law that a defendant may discharge the burden of proof placed upon him under section 118(a) of Negotiable Instruments Act 1881 either by producing definite evidence showing that the consideration had not passed or by relying upon the facts and circumstances of the case and also by, referring to the flaws in the evidence of the plaintiff and may then contend that the presumption has been rebutted. Reference in this connection may be made to the case of Chandan Lal Joura v. Amirl Chand Mohaulal reported in A I R 1960 Punjab 500 (D.B.) Other circumstantial evidence can also be given to rebut this presumption. It is common knowledge that the Court is even obliged to rely mere upon circumstantial evidence than upon direct or definite evidence negativing the same presumption. In the case of Siraj v. Champoo reported in 3 Lahore Journal 439 where the plaintiffs agent made in consistent statements about the consideration the Court held that the onus was shifted. Similar view was taken in the case of Sudder Singh v. Khosi Ram reported in A I R 1927 Lah. 864. The defendant has in his evidence clearly stated that the plaintiffs claim is completely false. He had imported 14 bundles of M.S. Sheets and one bundle of stainless steel sheets. These goods were pledged with the Bank and have been in the custody of the Bank. The Bank did not give delivery of these goods to him. He had signed blank papers and given to the Bank. He has also denied that the articles mentioned in the three trust receipts were ever delivered to him, as already stated above. He has further stated that the statement of accounts is not correct. It shows that he had made withdrawal of Rs.18,836 but neither this amount was paid to him nor any goods of the said amount were delivered to him. No such delivery memo. has been produced. He has also stated that the entry dated 13‑2‑1987 for Rs.27,008.52 is wrong. He has alleged that these amounts had been misappropriated by the Bank. This was his export money. On 13‑9‑1969 this entry was reversed wrongly. It is, therefore, proved that the above documents were without any consideration.

13. I am, therefore, satisfied that the plaintiff has failed to prove that the suit amount is due to him from the defendant. I, therefore, dismiss the plaintiff's suit. However, the costs of the suit shall be borne by the parties in view of the special circumstances of this case.

A.A./N‑72/K Suit dismissed.