UNITED BANK LTD. Versus ABDUL SATTAR & CO.
1. This is a suit for recovery of Rs. 66,498.66 filed by United Bank Limited against the defendants under Order XXXVII Rule 2 C.P.C.
2. The case of the plaintiffs is that on 19-10-1971, they had, at the request of the defendants, granted credit cash facility and arrangement for bills purchase facility to defendant No. 1 which were repayable with interest at the usual rate. The defendants availed of the said facility through his accounts at New Challi Branch of the plaintiff's Bank. The plaintiffs also accepted bills under the said arrangements and advanced amounts to the defendant No.1, as shown in the paras 7 and 8 of the plaint. No remittances in respect of the said bills were received by the plaintiffs at Karachi. Hence a sum of Rs. 66,498.66 was due to the plaintiffs.
3. The defendant No.1 filed the written-statement wherein it was pleaded, inter alia, that the plaintiff-Bank had not given credit to the defendants for four -payments received by the plaintiff-Bank at Khulna which payments were of an amount more than the plaintiff's claim. The defendants also claimed set-off of that amount of R01,205-and also paid the court-fees thereon.
4. The plaintiffs have filed additional written-statement wherein they have stated that there were no affective means of communication between East and West Pakistan and therefore the fate of the said bills could not be ascertained. On the pleadings of the parties following issues were framed.
(1) What were the contractual obligations of the defendants under the arrangement bill dated 19-10-1971?
(2) Whether plaintiff acted as defendant's agent in the matter of the said consignment. If so, whether they discharged their duties as agents, if not to what results?
(3) Whether the plaintiffs are liable for the payment of the value of the Bills of exchange of the said consignments?
(4) Whether the counter-claim is barred by limitation?
(5) Whether the amount of counter-claim is legally not recoverable?
(6) To what claim are the plaintiffs entitled?
(7) Documents and. Commission application if any within 3 months?
5. My findings on these issues for reasons therefore are as under:-
6. Issues Nos. 1 to 7 :
7. The plaintiffs have examined Maqsood Ahmed Mirza on 16-8-1988 in support of their claim whose cross-examination was reserved at the request of the defendant's counsel. Thereafter P.W. Maqsood Ahmed Mirza has not been tendered for cross-examination. Even his Advocate Mr. Inamullah has not appeared today. Hence I exclude the evidence of Maqsood Ahmed Mirza from the record. Mr. Naim states that in these circumstances he does not want to lead any evidence and closes his side. It is an admitted position that to secure repayment of the credit facility extended by the plaintiffs to the defendants the defendants used to deliver to the plaintiff documents of title of certain goods shipped to East Pakistan for collection from the consignees. The documents including the insurance policy used to be in the name of the plaintiffs. The defendant's case is that under the arrangement the plaintiff has received payment of four consignments referred to in para 2 of the plaint but corresponding credit has not been given to the defendants. The defendants have produced two original receipts showing payments made. Significantly the plaintiffs have no comment to make on these receipts nor have they denied the defendants' assertion that payment in respect of all the four consignments has been received by their Khulna Branch. Their only reply is that such remittances were not received by the plaintiff at Karachi. The least that the plaintiff should have done was to explain what happened to the goods that came into their possession by way of security.
8. The plaintiff has admitted that due to disturbed conditions there was no communication between the two wings hence the probability of the defendant's claim being true has not been ruled out by the plaintiff itself. Even if the evidence of P.W. Maqsood Ahmed Mirza was not excluded it would not have made any difference.
9. Under these circumstances I am of the clear view that the defendants have already discharged their liability towards the plaintiffs, if any.
10. I, therefore, dismiss the plaintiffs suit as well as set-off claimed by the defendants. The parties to bear their own costs.
11. M.Y.H./U-57/K
12. Suit dismissed.