1. This is an application filed by the defendant under section 151, C.P.0 praying therein that Nazir of this Court be directed to encash the Defence Saving Certificates/securities lying with him and hand over the entire amount so encashed to the defendant through a cheque.
2. The facts in brief are hat defendant had entered into a contract with the plaintiff for handling Rice Crop 1982-83 at Landhi Rice Godown of the plaintiff corporation which according to the plaintiff was not performed satisfactorily by the defendant. It is not disputed that at the time of execution of the contract, the defendant had executed and furnished a security in the sum of Rs,4,50,000 by depositing Special Saving Certificates for the said amount for performance of the contract.
3. According to the plaintiff, the defendant failed to perform his duties resulting in substantial loss to the plaintiff corporation, hence a suit for recovery of Rs,2,83,12,114.20 was filed by the plaintiff against the defendant. It appears that during the pendency of suit an application was filed by the defendant that sufficient profit had accrued upon the said saving certificates and the liability of the defendant, if any, was to the extent of Rs,4,50,000 hence the defendant be allowed to collect the profits accrued thereon. Nazir was directed by the Court to collect the said certificates from the plaintiff and get same encashed. It was further directed that after investing the original amount of Rs,4,50,000 in some Government security the amount over and above the face value of the certificates be paid to the defendant. Such compliance was made by the Nazir. It further appears that ultimately the suit was dismissed by this Court by its judgment dated 10-10-2003 whereafter the defendant has filed this application.
4. It is the case of the defendant/applicant that since the suit has been dismissed and since the certificates are lying with the Nazir the same may be ordered to be returned to him alongwith the profit earned thereon. In support of his contention learned counsel has referred to an order passed on CMA No,8385 of 1999 by a learned Single Judge of this Court in another suit bearing Nc.796 of 1987 (Messrs Rice Export Corporation of Pakistan (Present Plaintiff) v. Messrs Star Trading Company). Mr. Samiuddin Sami, learned counsel for the plaintiff/objector, has argued at length with reference to the spirit and scheme of the counter claims and set-of in civil suits. He has pointed out that neither any set-of was claimed by the defendant nor any counter claim was setup which fact is evident from their written-statement. Learned counsel has referred to some cases from American Courts and English Courts so also the case law as Reported in PLD 1983 SC 5, 1988 CLC 1575, 1986 M LD 754 and 1987 M LD 380. I have considered the arguments of learned counsel for the parties and perused the order passed by a learned Single Judge of this Court in somewhat identical circumstances in Suit No,796 of 1987.
5. I find the said order to be distinguishable as the said order appears to have been passed without hearing the other side and the view point as argued today by Mr.Samiuddin Sami with the help of case law. It is not disputed that the amount claimed by the defendant relates to the security furnished by the defendant with the plaintiff at the time of execution of the contract. What further transpires that neither any counter claim was made by the defendant nor he claimed any set-of in his written-statement.
6. I am, therefore, of the considered view that dismissal of the suit would not automatically made the defendant entitled for recovery of the said amount in the absence of any counter claim or set off on the part of the defendant and any such decision in respect thereof in the suit. Thus, there appears to be no force in this application filed by the defendant, which is dismissed. However, keeping in view the principles of equity, I would direct that this amount lying with Nazir shall remain deposited with him for a period of three months from today subject to any order-passed by a Court, in case a suit is filed by the defendant against the plaintiff for recovery of the said amount. In case the defendant fails to file any such suit or to obtain any order from the Court directing the Nazir not to repay/refund the said amount to the plaintiff within the above stipulated period, the Nazir shall return the said amount to the plaintiff for being deposited in the relevant account-head of the Sindh Government.
7. Order accordingly.