NASIR MEDICAL STORES Versus THE NATIONAL BANK OF PAKISTAN
This appeal is directed against the judgment/decree dated 12‑2‑19 passed by IInd Additional District Judge, Khairpur, in First Class Suit No.2 1976 (old Suit No.32 of 1970 ).
2. The brief facts leading to the riling of the above appeal are that the appellant opened an account with respondent No.2 on 17‑7‑1963 and availed facility of cash credit limit of Rs.6,000 which was for a period of six months against hypothecation of stocks/goods. The above facility was extended and raised to Rs.10,000 on 10‑2‑1964 and again to Rs.40,000 on 31‑7‑1964 and on 9‑3‑1966. On 15‑8‑1966 there was an outstanding balance of Rs.43,489.04. The appellant executed an agreement for cash credit limit on the above date, Ex.43, and pledged goods mentioned in Ex.42. Deceased respondent No.2 who is now represented by respondents Nos.2 to 4, executed an Agreement of Guarantee Ex.41. The appellant also executed a promissory note on the same date Ex.46. It is the case of the respondent No.1 that on 13‑3‑1969 the appellant acknowledged the balance amount of the loan and interest thereon namely Rs.46,171.59. It appears that on 14‑2‑1970 a sum of Rs.50,101.57 i.e. Rs.40,000 being the principal amount and Rs.10,101.57 being the interest amount was due, which was not paid. Consequently, respondent No.1 filed aforesaid Old Suit No.32 of 1970 on the above date for the recovery of the above amount. The above suit was transferred from the Court of the Senior Civil Judge to the Court of IInd Additional District Judge and was numbered as Suit No.2 of 1976. The above suit was resisted by the resisted by the present appellant inasmuch as a written statement was filed, in which inter alia, it was pleaded :hat the goods of the estimated cost of Rs.73,573 were kept in pledge with respondent No. f/plaintiff in its exclusive custody in its own interest and that the appellant/defendant was not liable to pay any salary of the Chowkidar and the Clerk. It was also pleaded that respondent No.1/plaintiff kept the above pledged goods to the godown of the appellant /defendant' under its own seal and exclusive custody and, therefore, they were liable to pay compensation for use and occupation which should be set off against the valid dues of the plaintiff. It was also alleged that the respondent No.1 in spite of repeated requests refused to release the pledged goods to be sold. On the basis of the pleadings of the parties the learned trial Court framed the following issues:
"(1) Whether the defendant No.1 signed the blank forms and if so what is its effect?
(2) Whether the acknowledgements were signed by the defendant No.2, by the threats and they have no value?
(3) Whether form `K' is a bogus document and the goods of the shop did not belong to the defendant No.1?
(4) Whether the plaintiff is not entitled to charge the salary of chowkidar and clerk in the account of defendants?
(5) Whether the plaintiff is entitled to any set off. If so how much?
(6) Is the interest charged by the plaintiff improper. If so to what extent?
(7) Whether the defendant No.2 is not responsible for any amount towards this account?
(8) What should the decree be?"
3. Respondent No.1 in support of the suit examined P.W.1 Muhammad a Supervisor in respondent No.1 Bank, P.W.2 Ishrat Hussain, another respondent No, 1, in whose presence Exhs.40, 41, 42, 43, 44, 47 were‑filled up and signed by the defendant and as a witness by the The appellant in defence examined aforesaid Muhammad Muslim, D.W.1 and Nasir Abbas mentioned as Nasir Hussain Rizvi as D.W.2.
The learned Additional District Judge, after hearing the learned counsel for the parties, recorded his findings on the above Issues Nos.1, 2, 3 and 5 in the negative, whereas on Issues 4 and 6 in the affirmative and under Issues Nos.7 and 8 he passed the above decree.
The appellant being aggrieved by the above judgment/decree has tiled the present first appeal.
4. In support of the above appeal, Mr. Rehanul Hassan Farooqi, learned counsel for the appellant has urged as follows:‑
(i) That the respondent No.1 had pledged goods valuing Rs.2,09,818.75 though in para.17 of the written statement estimated cost given is Rs.73,573 and therefore, the appellant was entitled to an equitable set off in respect thereof.
(ii) That as under Ex.42 the estimated value of the pledged goods was Rs.73,513 but in the Commissioner's Report dated‑24‑4‑1976 submitted to the learned Trial Court the total value of the goods found was only about Rs.43,513 and, therefore, it can be inferred that the respondent No.1 had removed the remaining goods.
(iii) That the respondent No.1 having accepted the value of tile pledged goods as Rs.73,513, it is not open to them to urge that the value is less than the above amount.
Reverting to the above first submission, it may be observed that Mr. Farooqi has referred to Exhs.77/1 to 77/7, which are the pledged letters which the appellant got produced by above D.W. Muhammad Muslim. 1n this behalf it may be pointed that the above first submission is contrary to the pleadings as contained in para.17 of the written statement, where the value disclosed is Rs.73,513 which is in consonance with Ex.42, the pledge letter executed by the appellant on 15‑8‑1968. In this view of the matter, it is not open to the appellant to urge otherwise. As regards the question of set off, it may be stated that it has been rightly concluded by the learned trial Court that under the terms of the Agreement, inter alia, Ex.43 it was open to the respondent No.1 to have sued for the balance amount without disposing of the pledged goods. I am also in agreement with the learned trial Court that the appellant was not entitled to claim any set off. It may be observed that upon the application of the appellant dated 19‑1‑1976 Mr. Sher Muhammad Baloch, Advocate was appointed Commissioner for the purpose of examining the pledged goods for showing the cost and duration validity of the various drugs. He submitted his report on 24‑4‑1976, which indicates the names of the medicines pledged, their quantities, the prices, dates of manufacturing and dates of validity, which has been exhibited as Ex.86 on the file of the trial Court but apparently has not been included in the paper book. Be that as it may, the above report indicates that the validity period of the goods i.e. the medicines which were pledged under Exs.42, had already, expired by the above date as per above Commissioner's report. It is true the value of the goods is also indicated in the above report, total of which according to the learned counsel for the appellant comes to Rs.43,513 but the above value is evidently indicated on the basis of the price label on the medicines but it does mean that the above medicines could have fetched the above prices in spite of the expiry of the validity period. In any case the above question is not in issue before me. I may also observe that no objection to the above Commissioner's report was filed by either parry
Reverting to the learned counsel for the appellant's above second submission that as per above Commissioner's Report the pledged goods found were less than what were indicated in the pledge letter Ex.42, it will suffice to observe that this has not been pleaded in the written statement nor it was urged before the learned trial Court. 1f the appellant wanted to claim any damages, he was supposed to file either a counter‑clam or to have filed a separate suit.
Adverting to the above third contention that the respondent No.1 having accepted the value of the pledged goods as Rs.73,513, it is not open to them to urge that the value is less than the above amount, it may be observed that in my view the above contention is not pertinent to the controversy in issue. In any event the learned trial Court has rightly pointed out in the judgment that the validity," period of the pledged goods has already expired on the date of pledge under Ex.42 and that there was lapse on the part of the Manager of respondent No.1 as he was related to the appellant as admitted by him in his testimony. I may again observe that the above submission is not pertinent to the point in issue in the present appeal.
6. Then it was submitted by Mr. Rehanul Hassan Farooqi learned counsel for the appellant that m any case the respondent No.1 cannot have money decree and at the same time the pledged goods. In this regard it will suffice to observe that in case the appellant pays the decretal amount as per judgment, the pledge shall stand discharged but before making such payment, he cannot claim any relief.
7. On merits of the case, I have examined the evidence on record, which comprises of ocular and decree.
I, therefore, do not see any merit in the above appeal and, therefore, the same is dismissed but there will be no order as to costs.
These are the reasons in pursuance of a short order of even date.
AA./N‑103/K Petition dismissed.