ROSHAN ARA ISMAIL Versus NATIONAL BANK OF PAKISTAN

In respect of this Revision Application No.17 of 1979 it is enough only to state that the applicant had imported certain tools and he had opened the L/C through National Bank of Pakistan. However, the applicant did not have funds to obtain these documents from the Bank' and, therefore, it took an overdraft facility of Rs.3,500 from the Bank. After granting the overdraft facility of Rs.3,500 by the Bank to the applicant, the Bank debited the account of the applicant with the sum of Rs.3,500 and the same was for the purpose of enabling the applicant to get the documents of title in respect of the goods in question. It is an admitted position that the promissory note and other documents which have been executed by the applicant were all for the purposes of guaranting the overdraft which had been allowed by the Bank to the applicant. The Bank had authorised Messrs Muhammad Amin and Muhammad Siddique, vide Exh.24, to deliver the documents to the importers directly. I have seen the statement made by Muhammad Ismail, Manager of the Bank, where there is no suggestion that Messrs Muhammad Amin and Muhammad Siddique were the persons holding the documents on behalf of the present applicant. In fact, this Exh.24 impliedly shows that the Messrs Muhammad Amin and Muhammad Siddique were holding the documents of title on behalf of National Bank of Pakistan and the Bank had claimed a lien against those documents. After the Bank had lifted its lien from those documents and the bank had received the value of those documents from the applicant in the form of debiting of the account of the applicant to the extent of Rs.3,500 only then it was the responsibility of the Bank to see that the documents of title of the goods were delivered by Messrs Muhammad Amin and Muhammad Siddique to the applicant but the Bank failed to do so. The applicant has clearly stated in his evidence that he had‑ tried to get the documents from Messrs Muhammad Amin and Muhammad Siddique but they refused to deliver the documents. The applicant wrote two letters to the Bank, Exhs.25 and 26, in or about October, 1971 and told them to get the documents delivered from Messrs Muhammad Amin and Muhammad Siddique but the Bank did not do anything to get these documents delivered to the applicant. Therefore, the pos, ion was that the promissory note was the basis of the overdraft which was allowed by the Bank in favour of the application and the applicant was debited with that amount for the purpose of getting the goods or at least documents of title but the Bank had failed to either deliver the goods or deliver the documents of title and, therefore, the initial presumption of consideration in respect of promissory note is shown to have failed ultimately when the documents of title were not delivered or got delivered by the Bank from Messrs Muhammad Amin and Muhammad Siddique to the applicant in spite of their demands.

2. The lower Courts have considered the matter only from the point of view of the presumption of consideration in favour of the Bank but they have failed to apprehend that it was the responsibility of the Bank to have the documents delivered to the applicant and their failure to do so, it resulted in the non‑delivery of the documents to the applicant and, therefore, the suit of the Bank to recover the overdraft amount from the applicant was not justified. The Bank could not burden the applicant with the overdraft and as well as keep the documents of title in respect of the goods with it or with the person to whom they have given the documents. This aspect of the case has been lost sight off by the two Courts below and, therefore, they have reached incorrect conclusion.

3. In these circumstances, there was no justification of passing the decree against the applicant for the overdraft facility, granted to the applicant by the Bank when ultimately the consideration had completely failed. The result of the above discussion is that the, judgment and decree of Rs.3,500 against the applicant is found to be unjustified and is hereby set aside and the decree of the lower Courts are reversed and the suit of the Bank is dismissed.

H . B . T . ???????????????????????????????????????????????????????? Revision petition allowed.