' AMIR HANI MUSLIM, J.---The plaintiff has filed suit for recovery of Rs.66,73,269.20 against the defendant. In paragraph 12 of the plaint the plaintiff has claimed Rs.50,35,442, the admitted principal amount with interest @ of 14% per annum with quarterly rests. The facts as they appear from the plaint are that the plaintiff is a company incorporated under the Companies Act and its shares are fully owned by the Federal Government. The plaintiff deals with the supply of jute bags.
The Rice Export Corporation of Pakistan invited tenders for supply of 32280 bales of jute bags to be imported from Bangladesh for the purpose of packing/exporting rice. The plaintiff participated in the bid and its bid was accepted. Under the terms and conditions of acceptance of bid, the plaintiff was required to deliver the jute bags to the godown of RECP at Bin Qasim (Pipri), which is situated outside the Municipal limits of the defendant. The bags, which were to be imported by the plaintiff, were not to be used/sold or consumed within the octroi limits of the defendant.
2. The plaintiff started importing the bags from Bangladesh in the year 1984-85, which consignments arrived at Karachi Port Trust by various ships at times.
3. The plaintiff sought exemption from the payment of octroi for 32280 bags inter alia on the ground that the Bin Qasim/Pipri godown of the RECP were outside the municipal limits of the defendants. The defendant allowed the transit pass facilities by issuing pass against the security deposit of an amount of Rs.50,35,442, which was deposited by the plaintiff with the defendant as security with the understanding that the said amount of security would be refunded to the plaintiff on completion of the delivery of the said goods. The subsequent correspondence between the parties reflect that the defendant refused to refund the amount as a result of which the plaintiff approached the Tribunal and the Tribunal allowed the appeal against which the defendant filed a Constitutional Petition No.D-1316 of 1986, which was disposed of with the observation that the Administrator of the defendant may decide the question of refund of the security deposit of the plaintiff. It was further observed by the Division Bench that the proposed decision of the Administrator would be without prejudice to the judgment passed in the present proceedings. It may be noticed that during the pendency of the petition, filed by the defendant, the plaintiff had filed present suit in this Court on 14-5-1988. I am informed that the Administrator had decided against the plaintiff, which decision has been appealed against by the plaintiff. In the present proceeding the written statement was filed by the defendant and on 17-9-1989 the following issues were framed by the Court:--
(a) Whether the plaintiff is entitled to the refund of security deposit amounting to Rs.50,35,442?
(b) Whether the defendant has legally forfeited the above amount of security?
(c ) What is the effect of the order of the Tribunal dated 4-2-1986?
(d) What the relief, if any, the plaintiff is entitled?
4. The plaintiff has led the evidence by examining Mazharul Haq, P.W.1, who has produced the survey report as Exh.5/1, to establish the delivery of jute bags to the RECP at Bin Qasim godown by the plaintiff imported and transported to the godown of RECP. The plaintiff examined Abdul Qadeer P.W.2, who produced the survey report as Exh.6/1, reflecting the receipt of the delivery of the jute bags, imported by the plaintiff and delivered at the Pipri Godown of RECP against transport. The plaintiff also examined Syed Mehdi Raza, P.W.3, Inspector, Asia Inspection and Pest Control Services Limited, Saeed Ahmed Zuberi, P.W.4, Director of Asian Inspection and Pest Control Services Limited, who produced the receipt of jute bags by different godown of RECP at Bin Qasim as Exh. 8/1, survey report as Exh. 8/2, letter of the plaintiff as Exh. 8/3, letter of Muzaffer Naseem as Exh. 8/4, office order as Exh. 8/5, resignation as Exh. 8/6. The plaintiff examined Rafat Jawaid, P.W.5, Dy. Manager of RECP, who appeared and produced letter of RECP, address to the plaintiff, as Exh. 9/1, letter to RECP addressed to the plaintiff as Exh. 9/3. Plaintiff examined Abdul Qayymi P.W.6, Surveyor and Khalil- ur-Rehman P.W.7, Surveyor, Marine Consultant, plaintiff also examined Ziaul Hasan, P.W.8, Asst.
Executive Shipping, who produced letter of transit pass facility as Exh. 12/A and appeal preferred by the plaintiff against the respondent as Exh. 12/B and the letter of the Reader of the Chairman of the Appellate Tribunal as Exh.12/C, with the judgment in appeal and letter to the RECP, addressed to the plaintiff as Exh. 12/D, certified copy of C.P. D-1316/1986, filed in this Court by the defendant against the plaintiff along with the order passed thereon as Exh. 12/F, plaintiff after examining these witnesses have closed the side and the defendant examined only Shamsuddin D.W.1, Dy. Director, KMC, who produced order of the Administrator as Exh. D/1. In cross-examination he produced declaration as Exh. D-1/2.
5. It is contended by the plaintiff's counsel that the plaintiff was entitled to the refund of the security, which he has made to avail the facility of the transit pass. He submits that the refusal and/or forfeiture of such refund by the defendant was unauthorized. The learned counsel further submitted that the defendant has failed to lead any evidence to show that the goods against which the transit pass facility was availed were either consumed or sold and/or disposed of within the local limits of the KMC. He has produced the correspondence and had examined substantial number of witnesses to establish that the goods imported were transported to the Bin Qasim godown of the RECP, which fell outside the municipal limits of the defendant. In support of the contention, he has relied upon the case of Al-Ghazi Tractors Limited v. The Province of Sindh and others reponied in 1991 M LD 1616.
' His next contention was that the contents of the documents, produced and exhibited by the plaintiff, could not be excluded by oral evidence in view of the bar contained in Article 103 of Qanun-e-Shahadat Order, 1984. He submitted that the documentary evidence produced by the plaintiff is sufficient to disbelieve the oral evidence of the defendant witness. He has relied upon the case of Mst. Baswa r Sultan v. Mst. Adeeba Alvi reported in 2002 SCM R 326(e).
6. As against this, Mr. Manzoor Ahmed, learned counsel for the defendant has contended that the Division Bench of this Court in its judgment has directed the parties to approach the Administrator.
The learned counsel submits that the Administrator had decided the issue against the plaintiff holding that the denial of the refund by the defendant was justified. The learned counsel submits that the decision of the Adminittrator has attained finality and, therefore, this suit is not maintainable. His doubt that the decision of the Administrator and/or of the Tribunal would be without prejudice to The decision in these proceeding. Therefore, the contention of Mr. Manzoor Ahmed that the decision of the Administrator against the plaintiff will in any way come is not correct. Moreover, the learned counsel for the plaintiff states that even the decision of the Administrator has been appealed against. I am clear in my mind that the decision in these proceedings is independent and will have no nexus with the decision of the Administrator and/or of the Tribunal as they are not judicial decision. The next contention which also requires consideration that the defendant has not placed any material/documentary evidence to establish that the plaintiff had misused the facility of transit pass in any manner either by consuming and/or selling the imported bags within the local limits of the defendant. The plaintiff admittedly is a Federal Government organization and the jute bags were imported for RECP, which is also owned by the Federal Government. There is sufficient evidence produced by the plaintiff which reflects that the imported jute bags were delivered at Bin Qasim (Pipri) godown and all such documents are exhibited without any objection from the defendant. The authenticity or the legality of these documents exhibited by the plaintiff was not challenged by the defendant in particularly Exhs. 8/1, 8/2 and 8/3, which show that the goods were delivered at the Bin Qasim godown. The survey reports had also been produced and exhibited by the plaintiff's witness. In the face of this second contention was that the goods against which. The transit pass was issued were not consumed and/or sold outside the limits of the defendant and, therefore, the plaintiff was not entitled to the refund.
7. I have hard the learned counsel for the parties and perused the record. Admittedly, the transit pass facility was availed by the plaintiff for importing jute bags from Bangladesh, which jute bags were to be delivered by the plaintiff at Bin Qasim godown, which place of the delivery was outside the municipal limits of the defendant. The evidence of the defendant on this issue was to whether the Bin Qasim Port (Pipri) falls within the municipal 'limits of the defendant is self-contradictory. It is an admitted position in law that the defendant can only issue transit pass facility once the goods are transported outside its municipal limits. Additionally, the defendant has not placed any notification to show that Bin Qasim (Pipri) falls within the municipal limits of the defendant. These two factors are sufficient to hold that the Bin Qasim (Pipri) godown of the RECP was outside the municipal limits of the defendant, otherwise, there was no occasion for the defendant to issue transit pass.
8. The next contention of the learned counsel for the defendant is also without force that the decision of the Administrator had any binding effect on the plaintiff and or on these proceedings.
The order of the Division Bench, Exh. 12/E, clearly spells documentary evidence, the defendant cannot refuse to refund the security amount which the plaintiff had paid to them at the time of available transit pass facility.
9. In view of whatever stated herein above I am clearly of the view that the amount of Rs.50,35,442 was unauthorizedly withheld by the defendant. The plaintiff is entitled to the decree against the defendant for a sum of Rs.50,35,442 with mark-up at the rate of 10% per annum from the date of filing of the suit till the entire amount is realized with costs.