MIAN SAQIB NIS.AR, J.---The noted E.F.A. No.130 of 2006 as also E.F.A. No.522 of 2006, E.F.A. No.523 of 2006 and E.F.A. No.524 of 2006, are interconnected, having tie same facts, arising out from' the single judgment of the learned Banking Court, therefore, are being decided together.
2. The very brief facts of the case, which are relevant for the purpose of these appeals, are that the respondent-Bank had brought four suits against the appellants for the recovery of certain "Finances"; two suits were filed by Messrs G.A. Traders and Messrs Makma Steel Crafts (Pvt.) Ltd.
Against the respondent-Bank for the recovery of damages and redemption of the pledged stocks.
Through a compromise dated 13-9-1999 entered into between the parties, all these matters were settled and the suits of the respondent-Bank were decreed and the two suits of the appellants were withdrawn. The learned Banking Court, on the same day passed a decree in pursuance and in terms of the agreement, which is Exh.P.A.
3. It is stated by Mr. Muhammad Khalid Mehmood khan, learned counsel for the appellants, that the total liability of the appellants in accordance with the above compromise and the decree was Rs.67.448 Millions, which was payable within the period of five years according to the schedule given in the agreement along with a mark-up of 17% upon the unpaid amount. The appellants in compliance of the decree have paid a sum of Rs.60 Millions to the respondent-Bank and then sought the return of their pledged goods, which was refused by the bank. Rather, the respondent-Bank for the purpose of recovery of the balance amount due from the appellants, brought the execution proceedings. In the circumstances, the appellants moved an application under sections 12(2) and 47, C.P.C. Read with Order XXI, rule 29, C.P.C. And section 19(7) of the Financial Institutions (Recovery of Finances)
Ordinance, 2001; this application was replied by the respondent-Bank and the learned Executing Court, through the impugned order dated 10-12-2005, dismissed the same holding that it cannot proceed/go beyond the decree.
4. Learned counsel for the appellants contends that the appellants had never required the Court to violate the above settled principle, rather the nature, of the decree, based upon Exh.P.A., was reciprocal and Under the decree, the respondent-Bank was obliged and duty bound to return the pledged goods to the appellants at the time of receiving the amount and as this was not done by the respondent-Bank, therefore, the appellants were not under any obligation/liability to pay the balance amount, but were entitled to the recovery of the amount equivalent to the pledged goods.
It is further stated' that there were two kinds of the pledged goods, one which were duty paid and were in the absolute and exclusive custody/possession of the respondent-Bank, whereas_the other for which the duty was yet payable and were lying in the bounded warehouse and under the control and authority of the respondent-Bank: some goods out of the second category, were sold by the Custom Department because of the non-payment of the customs duty, which accordingly was the responsibility of the respondent Bank, but was not discharged; whereas the other pledged goods have been misappropriated by the bank. .
5. We have heard the learned counsel for the parties. The relevant clause about the pledged goods contained in the agreement (Exh.P.A.), which also has become a part of the decree of the learned Banking Court, is No.5(ii) and is reproduced below:-- "Customer No.1 undertakes that if it succeeds in getting condonation from CBR regarding remission of penal surcharge, it will pay a further sum of Rs.20.00C million through sale of stocks comprising hot rolled cold steel sheets which are presently lying in Shahid Bonded Warehouse situated at Lahore. The Bank will release all pledged goods against payment by Customer No.1 of all dues including customs duties and warehouse charges etc. The bank will not be responsible for any damage to, or shortage or deterioration in value, of the said pledged goods. However, it is ultimately agreed between Customer N0.1 and the Bank that in case of any short-fall in the goods lying in the Custom bonded Warehouse, the Bank will extend all co-opeation to Customer No.1 and both will lodge joint claim against the Bonded Warehouse for this short-fall in accordance with law."
This clearly shows that the only responsibility of the respondent-Bank was to release the pledged goods, which were lying in the Shahid Bonded Warehouse situated at Lahore. The claim of the appellants that there were certain goods, which otherwise were under the pledge of the bank but were of a different finance and the pledged letters in this behalf are available on the record at pages 50, 51 and 52, thus, the bank is under obligation to return those goods, suffice it to say that neither in the agreement nor in the decree, there is any mention or the distinction regarding the pledged goods on the basis of different finances, rather only one category of the pledged goods has been referred to i.e. Which were lying in the Shahid Bonded Warehouse and the pledged letters, upon which the appellants counsel has relied, clearly shows those goods to be lying in the same bonded warehouse. Thus, the respondent-Bank on the basis of the decree was not under any liability to return any other pledged goods to the appellants, which allegedly are duty paid and were in the custody and possession of the respondent-Bank.
6. If, there were any other pledged goods, which were duty paid, were lying with the respondent- Bank, and were different from those mentioned in sub-clause (ii) of Clause-5 of the agreement, there should have been a specific stipulation in .Exh.P.A. For the return of such goods. Therefore, when the agreement and decree are silent about it, obviously the learned Executing Court had no power to go beyond the decree and to grant the relief of return of the alleged duty paid goods lying in the custody of the respondent-Bank, which are now claimed by the appellants, were based upon different "Finances".
7. It may also be mentioned here that in the letter dated 27-4-2002, which the appellants had addressed to the respondent-Bank, it is clearly mentioned '------------- material was misappropriated by the Bond Owner due to the negligence of the bank, the Customs Authorities lodged an F.I.R. Against the Bond Owner who filed the writ petition against the Customs Authorities, bank and ourself. The bank has not claimed the shortfall of the pledged stocks and tried to wriggle out from the liability by ignoring the facts and agreement." Under Clause-5(ii) of Exh.P.A., which has been incorporated in this judgment, the respondent bank was not responsible for any shortfall or damage due to storage and the deterioration of the pledged goods, therefore, on the account of above mentioned misappropriation of the goods as well, there was no liability of the bank to compensate the appellants. Lastly, it may be held that according to the facts narrated to us by the learned counsel for the appellants, two suits mentioned in paragraph No.2 filed by the Messrs G.A.
Traders and Messrs Makma Steel Crafts (Pvt.) Ltd., through which, the return of certain pledged goods was sought, admittedly were withdrawn by the appellants unconditionally, and for the return of the alleged goods, there is no mention either in the agreement (Exh.P.A.) or the decree. From the above, the obvious conclusion can be drawn that the appellants gave up their claim in this regard and therefore, they could not re-agitate the matter before the learned Executing Court through the above application. Therefore, all these appeals have no merits and are hereby dismissed with special costs of Rs.25,000.