' FAISAL ARAB, J.---Through this suit plaintiff-Corporation seeks recovery of the value of its stocks of rice which were misappropriated by the defendant from the plaintiff's Karachi godowns.
2. Brief facts of the case are that on 24-11-1991 the plaintiff-Corporation awarded a contract to the defendant for handling its stocks of rice stored at its Karachi godowns which pertained to the crop of 1991-92 season. Large quantities of various varieties of rice together with gunny bags were put under the control of the defendant. The contract after its extension came to an end on 30-9-1995.
Thus the defendant as contractor handled plaintiff's stocks of rice for about four years from November, 1991 to September, 1995.
3. From the documents that have been filed with the plaint it is evident that as early as March 1992 it became known to the plaintiff-Corporation that defendant has not handled his assignment professionally. The plaintiff-Corporation has been complaining to the defendant that he did not employ sufficient supervisory staff and his performance as handler had also been poor. This is evident from plaintiff's letters dated 28-3-1992 and 15-9-1992 filed as annexure "B/1" & "B/2" to the plaint.
4. The plaintiff-Corporation also did not seek verification of the stocks entrusted to the defendant until such verification for the first time took place in August, 1995 i,e, at the fag-end of the four years contract period. From annexure "C" to the plaint it is evident that on 10-2-1993 for the first time the plaintiff-Corporation sought physical verification of the stocks, however no such verification took place in the year 1993. It was only in August-September, 1995 that a Chartered Accountant's firm verified the stocks and submitted its summary to the plaintiff-Corporation on 25-9-1995 indicating shortage of about 11766 metric tons of rice. This summary is filed as annexure "D" to the plaint. In spite of this disclosure of colossal shortage, the plaintiff-Corporation vide its letter dated 19-10-1995 informed the defendant that the management is pleased to retrospectively extend the validity of the contract from 1-1-1994 to 30-9-1995 without even caring about the shortages of stocks. For shortages however it took plaintiff's management another two months to communicate with the defendant. This is evident from letter dated 23-11-1995 filed as annexure "E" to the plaint wherein it was for the first time stated that shortage of 11766 metric tons has been detected and the defendant should explain his position. Though the defendant on his part did not respond to plaintiff's letter dated 23-11-1995 but it took another seven months for the plaintiff-Corporation to write to the defendant letter dated 16-6-1996 which is filed as annexure. "F" to the plaint containing a 'request' for deposit of seventy five million rupees being the then value of the missing stocks.
Surprisingly, no allegation of embezzlement of 11766 metric tons of rice was alleged by the plaintiff- Corporation against the defendant. Without taking any other legal step for protecting the interests of the plaintiff-Corporation a similar 'request' was again repeated vide its letter dated 2-7-1996 which is annexed with the plaint. Thereafter, the management of the plaintiff-Corporation went into deep slumber for another six months and finally filed the present Suit bearing No, 459 of 1997 seeking recovery of the value of the embezzled stocks. So much for the efficiency on the part of the management of a public institution in discharge of its public duty.
5. The defendant in the meantime continued to enjoy the fruits of this wrong doings committed since 1992 worth more than seventy five million rupees without any fear of criminal prosecution. As to the present suit, the defendant very conveniently chose not to contest the proceedings though served through publication. The defendant must have thanked his stars that except for the belated action of filing this suit years after his committing misappropriations no coercive legal action, criminal or civil was taken against him.
6. On account of the failure of the defendant to come forward and contest the proceedings, this Court ordered that the suit to proceed ex parte against the defendant and directed the plaintiff- Corporation to file affidavit in -ex parte proof. The claim of the plaintiff-Corporation has gone unchallenged. Therefore there was no other alternative left but to accept plaintiff's version and decree this suit in the sum of Rs,7,52,57,276.51 as claimed along with mark-up at the rate of 14% per annum recoverable from the defendant from the date of the contract i,e, 24-11-1991 till the recovery of the entire decretal amount.
7. Before parting with this judgment, this Court strongly feels that the way the functionaries of the plaintiff-Corporation have handled the contract with the defendant the decree passed in this suit might prove to be no more than a paper decree without any chance of recovery. No security or guarantees whatsoever were obtained by the plaintiff-Corporation from the defendant while.
Awarding the contract though stocks worth millions of rupees were being entrusted to the defendant. Of what use is a decree of a Court if there does not exist the remotest chance of affecting recovery of the decretal amount. The decree may be a source of sigh of relief for the management of the plaintiff-Corporation as now the burden to affect recovery has shifted upon the Court from the functionaries of the plaintiff corporation, some of whom may have also been involved in the scam with the defendant. They may have by now retired or may have 'honourably' left service. The way the defendant was allowed to handle stocks worth millions of rupees without any periodical check or verification of the stocks and the lethargy which prevailed over the management of plaintiff-Corporation even after the discovery of shortages indicate that plaintiff's officials may have deliberately looked the other way when the stocks were being pilfered by the defendant. The value of these stocks at the present value might be more than 400 million rupees.
8. A cursory examination of the record of this suit shows that defendant was allowed to handle the stocks for a period of about four years i,e, from November, 1991 to September, 1995. As early as March, 1992 plaintiff's management became aware that the performance of the defendant is poor yet the contract was allowed to be extended uptil September, 1995. Not only this, the most surprising aspect is that in this period of four years verification of stock actually took place only once and that too in September, 1995 i,e, at the fag-end of the contract as is evident from annexure "D" to the plaint. Even at this belated stage when the plaintiff-Corporation became award of colossal shortages in the entrusted stocks, instead of proactively initiating civil and criminal actions against the defendant, the functionaries of the plaintiff corporation vide letter dated 19-10- 1995 were 'pleased' to extent the defendant's contract retrospectively up to 30-9-1995 and then in a very nonchalant manner politely requested an explanation for shortages vide letter dated 23-11- 1995. It was a very serious matter involving misappropriation of 11766 metric tons of rice stocks worth more than seventy five million rupees at that time and any negligence on the part of plaintiff's managers should have put their job and reputation at risk but they did nothing. They remained unconcerned with the magnanimity of the crime and took another nine months after the verification of the stock just to make a 'polite request' to the defendant vide plaintiff's letter dated 16-6-1996 to deposit the price of misappropriated stocks. This `request' was again repeated on 2- 7-1996. That was about all. No one at the plaintiff-Corporation took the matter seriously and there was no cause of alarm at any level. Such inaction seemed to be deliberate on the part of interested functionaries of the plaintiff-Corporation who made sure that sufficient time be made available to the defendant to carry on with the process of misappropriation of stocks and then quietly disappear in the wilderness. It is for this reason that the management of plaintiff- Corporation did not bother to periodically check and verify the stocks given under the charge of the defendant. They were only constrained to file recovery suit after years of misappropriation just to complete a formality. Such a conduct is not expected to public functionaries who are entrusted with the assignment to deal with public assets. Public functionaries who manage and control public assets are trustees of the people and should be made accountable for their negligence and indolence which resulted in loss to public exchequer. In the present case the 'trustees' of public sitting at the plaintiff-Corporation seemed to be more interested in allowing the misappropriation of stocks to happen rather than to safeguard it. When the plaintiff's counsel was asked by this Court whether at the time of awarding contract to the defendant his past performance was taken into consideration or any solvent security or guarantees were obtained, the learned counsel very candidly after examining his file answered in the negative. All this show that this is not even a case of usual nonchalant approach which is common with a good number of public functionaries but is a case where a deliberate attempt has been made by functionaries of the plaintiff-Corporation to aid and abate the act of misappropriation of valuable stocks. The contract was awarded to a person who may now be untraceable and even if traced may not have sufficient assets in his name to satisfy even a fraction of the decree. All this leads this Court to believe that there may have been a conscious attempt on the part of some of the functionaries of the plaintiff- Corporation which allowed the defendant to misappropriate huge quantities of rice.
9. Office is directed to send copy of this judgment to Ministry of Commerce, Islamabad as well as to the Chairman of the plaintiff-Corporation for initiating appropriate disciplinary and criminal action against the concerned officers of the plaintiff-Corporation as well as criminal action against the defendant in the light of this judgment.