' The plaintiff has brought this suit for recovery of a sum of Rs, 1,91,229.47 against the defendant. It is asserted in the plaint that the plaintiff who is the sole proprietor of M/s. Azizuddin Mohammed Ali & Company on 10th January 1973 obtained overdraft/cash credit facility under C. C. Account No, 119 which he had with defendant No, 2 subject to maximum limit of Rs, 5 Lacs against the pledge of stocks of wheat, wheat-flour and foodgrain. It is further asserted that the pledged goods used to be stored in the godown of Murtaza Flour Mills Ltd., Industrial Area. Korangi and plaintiff used to redeem the pledged goods in small lots against payment to defendants. The pledged stocks were duly insured, with Standard Insurance Company. It is stated that on-12th July 1973 the defendants had in their possession and effective control 3,000 bags of wheat valued at Rs, 1,44,000 (Rs, 48 per bag) under the pledge, stored in the aforesaid premises. It is claimed that defendants acts negligently or collusively parted possession of 3000 bags of wheat while holding them under the pledge and then falsely took up the stands that these goods were not pledged with them. The plaintiff in reply to a notice served upon him by the defendants claiming a sum of Rs, 97,284.60, due and payable by the plaintiff in the cash credit account, to the defendants, had claimed a sum of Rs, 1,12,715.40 as the difference payable to him after adjustment of the overdraft amount from the market value of 3000 bags of wheat which the defendants had allegedly misappropriated. It appears that after receiving the plaintiffs above reply the defendants on the basis of the amount due against him in the cash credit account filed a suit in this Court being Suit No, 57/74 for recovery of the same. Some time later the plaintiff also instituted the present suit in which he claimed a sum of Rs, 53,791.52 against the defendants after adjusting the amount claimed by the defendants in Suit No, 57/74. Both these suits proceeded together and evidence was recorded only in Suit No, 57/1974. However, on the basis of an admission made in the evidence. Suit No, 57/1974 filed by defendant's against the plaintiff was decreed by the Court on 22nd April, 1976. After decree in Suit No, 57/1974, was passed against the plaintiff, the plaintiff applied for amendment of plaint in this suit which was allowed and the plaintiff after including the decretal amount of Suit No, 57 of 1974 enhanced the claim to Rs, 1,91,229.47. On 14th December, 1976 the following amended consent issues were framed by the Court :- "(1) Was the overdraft facility of Rs, 5 lacs cancelled and adjusted, if so to what effect ?
(2) Was the overdraft facility against hypothecation or pledge of stocks ?
(3) Whether the defendant on 22nd May, 1973 granted a temporary overdraft facility of Rs, 1,29,924.04 against the security of hypothecation of wheat stocks as alleged by the defendant. If so, to what effect ?
(4) What is the effect of the declaration of stocks of wheat dated 22nd May, 1973, 30th June, 1973 and 12th July, 1973 filed by the plaintiff with the defendants ?
(5) In whose possession and control 3;000 bags of wheat were on 12th July, 1973 ?
(6) Whether the defendants negligently and collusively parted with the custody of 3000 bags of wheat as alleged by the plaintiff ?
(7) Is the claim barred by limitation ?
(8) Whether the suit framed is misconceived and not maintainable in law ?
(9) Whether any cause of action has arisen to the plaintiff at all ?
(10) What reliefs, if any ?
' After framing of amended issues no further evidence was recorded in this suit and the evidence already recorded in Suit No, 57/74 is treated by consent of parties as evidence in this suit. On 9th September 19801 heard the arguments in this suit and after hearing the learned counsel at some length I reframed the issues in the suit as follows :- "(1) Whether the defendant on 22nd May 1973 granted a temporary overdraft facility of Rs, 1,29,924.04 against the security of hypothecation of wheat stock of 3000 bags as alleged by the defendant or it was a pledge ?
(2) Whether the plaintiff had an earlier account with the defendant prior to the granting of the temporary overdraft facility which was adjusted and a fresh facility was granted ?
(3) Whether the plaintiff is entitled to sue for damages ?
(4) To what amount of damages, if any, plaintiff is entitled ?'
' After reframing of the issues I heard at length Mr. Hyder Mota, Advocate for the,plaintiff and Mr. J.
H. Rehmatullah for the defendant. Issue No, I :- ' This issue is the main issue in the suit. It has been asserted on behalf of the defendants that the stock of 3000 bags of wheat which was kept by the plaintiff in the godown of Murtuza Flour Mills was not under pledge but was under hypothecation. It is strongly denied by the defendants that the said stocks of wheat was under a pledge with them. On the other hand the plaintiff has vehemently contended that 000 bags of wheat were with the defendants under a pledge. In support of his contention that the above stocks of wheat was pledged with the Bank the learned counsel for the plaintiff has placed reliance on Exhs. 6/1, 6/2 to 6/11, 6/20 to 6/22. All these documents were produced by the defendants in evidence in suit No, 57/74. Exhs. 6/1 and 6/20 to 6/22 are the monthly statement of stocks lying in the godown of M/s. Murtuza Flour Mills Ltd., Industrial Area at Korangi, Karachi. Exh. 6/20 is dated 22nd May 1973, Exh. 6/21 is dated 30th June 1973 and Exh. 6/20 and 6/1 are dated 12th of July 1973. All these documents are in a standard printed form and start with a recital as follows : - "Statement of stocks Hying in godown of M/s. Murtuza Flour Mills Limited situated at Industrial Area at Korangi belongs to M/s. Azizuddin Mohammed Ali & Company and pledged with Standard Bank Ltd. In terms of their agreement with the Bank."
' After the. Above recital in the body of these documents the stock of goods and their value is mentioned.
' All these documents are signed by an authorised person on behalf of the plaintiff. After the signature of the plaintiff the following further endorsement appears in the documents:-- "Certified that the goods mentioned in the stock report are in out possession and effective control and that the rates mentioned are according to the ruling market quotation today. Bank's name board has been duly displayed. We further certify that the warranties contained in the Insurance Policy/Policies covering the above goods .Are duly observed and complied with by us."
' Thereafter the following persons who are supposed to have signed the said endorsement are mentioned :-- L Godown keeper.
2. Manager.
3. Officer.
4. Makadum.
' Out of the above for documents 6/1, 6120 to 6/22, three of them Exhs. 6/1, 6/21 and 6/22 are signed by one Dhanjee Godown-keeper. On Exh. 6/20 only the signature of authorised person of plaintiff appears. Mr. Rehmatullah the learned counsel for the plaintiff on the basis of the evidence on record admitted that Dhanji, Godown-keeper, who signed the above documents is the Godown- keeper of defendants. Exhs. 6/2 to 6/11 are the debit advice vouchers produced by the defendants showing that the account of plaintiff with the defendant was debited between the period from 31st January, 1973 to 28th July, 1973 for conveyance charges paid to the said Dhanji for visiting the godown of Murtuza Flour Mills where the said stock of wheat was lying. The particulars of payment mentioned in these vouchers are very material and are in identical terms as follows :- "To account of conveyance charges paid to Mr. Dhanji or Godown Keeper fromto.. @ Rs, 6 per day posted at your Murtuza Flour Mills."
' Mr. Rehmatullah tried to support his contention that the goods were under hypothecation and not pledge, by referring to document Exh. 6/18. I will consider the effect of this document under issue No, 2 as this document was strongly relied in proof of issue No, 2 also. In view of the documentary evidence discussed above I feel no difficulty in holding that the goods shown in the documents (Exhs. 6/1, 6/20 to 6/22) were in possession of the defendants under a pledge. The defendants have not been able to prove that the goods were only hypothecated with them and that the possession and the effective control of these goods all along remained with the plaintiff.
Issue No, 2 :- ' 1, now take up issue No,
2. It is contended on behalf of defendants that the overdraft facility of Rs, 1.29.924.04 availed by the plaintiff on 22nd May 1973 was a flesh facility and under a fresh arrangement. The plaintiff on the other hand contended that he had only one cash credit account with the defendants namely CC Account No, 119 and that overdraft of Rs, 1,29,924.04 was availed by him in this account. To support this contention the learned counsel for the plaintiff relied upon the statement of account filed by the defendants for the period, both, before 22nd May 1973 and after 22nd May 1973. It is an admitted position that in the statement of account produced by the defendants for the entire period namely from the date the original cash credit facility was granted on 10th January 1973 till the filing of suit ; the account number of plaintiff is shown as CC 119. The plaintiff has also relied upon the letter of defendant No, 2 dated 10th January, 1973, (Exh. 10(5) granting overdraft facility to plaintiff. According to this letter which is a sanction of cash credit facility to plaintiff the limit was Rs, 5 lacs and the arrangement was to remain valid upto 30th June, 1973. And this facility was granted against the pledge of stock of wheat, wheat-flour and other foodgrain. It is however, contended by Mr. Rehamtullah, the learned counsel for the defendants that in spite of the fact that this facility granted to plaintiff by the defendants in Account No, 119 was valid upto 30th June, 1973, but this account was squared up on 21st May, 1973, on account of a credit balance in favour of plaintiff on that date and when plaintiff availed the overdraft facility of Rs, 1,29,924.04 on 22nd May, 1973 it was altogether a new arrangement and a new account for all practical purposes. To support his contention the learned counsel relied upon the promissory note dated 22nd May, 1973 (Exh. 6/16). The letter accompanying demand promissory note (Exh.. 6/17) and letter dated 22nd May, 1973 addressed to Standard Bank Ltd. By the plaintiffs Exh. 6/18. The contents of all these three documents are denied by the plaintiff and it is contended that these documents were executed by the plaintiff in blank at the time he was granted cash credit facility in January, 1973 and these blanks have been filled in by the defendants subsequently in a manner to support their pleas in the proceeding before the Court. In Exhs. 6/16 to 6/18 relied upon by the learned counsel for the defendants, there is no mention of account number to which they relate.
Exh. 6/18 which is relied upon by the learned counsel as a document creating hypothecation, it is stated as follows : - "With reference to overdraft limit of Rs, 1,29,924.04 allowed by you against security of hypothecation in or favour we confirm the following arrangement :- (1)We have executed all the necessary documents required by you in connection with the overdraft limit.
(2)
(3) ...
(4)
' Mr. J. H... Rehmatullah the learned counsel for the defendants admitted before me that although it is stated in Exh. 6/18 that all the documents required in connection with overdraft limit were executed by the plaintiff but apart from Exh. 6/18 there is no separate hypothecation deed in respect of the stock alleged to have been hypothecated with the defendants. He, however, maintained that hypothecation of goods was credited by force of Exh. 6/18 itself ; but the fact remains that no details of hypothecated goods are mentioned in Exh. 6/18. On the state of evidence referred to above, 1 find it absolutely difficult to hold that 3000 bags of wheat were under hypothecation with the defendants by virtue of Exh. 6/18. I may also point out that although it is contended by the learned counsel that the Exh. 6/16' to 6/18 amount to creating a new arrangement of overdraft facility to the plaintiff the statement of account produced by the defendants in evidence relating to the period subsequent to the alleged new arrangement shows the account number of plaintiff with the defendants as CC A/C. No,
119. Mr. Rehatmullah was unable to explain as to why the same account number was continued if the facility granted to the plaintiff on 22nd May 1973 was a new arrangement altogether. Judged in this context the contention of the plaintiff that the documents Exhs. 6/16 to 6/18 were executed in blank at the time the original overdraft facility was granted to plaintiff and that the blanks were subsequently filled in by the defendants to support their pleas, cannot wholly be ruled out as without any substance. However, on the evidence as on record. I am inclined to hold that the overdraft facility of Rs, 1,29,924.04 availed by the plaintiffs on 22nd May 1973 was in the old Account No, CC 119 which the plaintiff already had with defendant No, 2 and which was valid upto 30th June 1973. The defendants have failed to establish that this facility granted to the plaintiff was under a new account of new arrangement.
' Issue No, 3 :- ' The burden of proving this issue is on the defendants Mr. Rehmatullah contended that in the stocks reports (Exhs. 6/1 and 6/22) relied upon by the plaintiff the stocks of wheat in the column of "description" is shown as "Government Stock". It is accordingly contended that the property in the goods did not belong to the plaintiff and as such he was not entitled to sue on the basis of the pledge of the goods. The argument of the learned counsel has no merit. Firstly, before filing of the suit, at no stage it was the case of the defendants that the stock of wheat kept in the godown of Murtuza Flour Mills did not belong to the plaintiff. Even in the written statement filed, in this suit by the defendants it was never contended that the property in the goods did not belong to the plaintiff. All that was said in the written statement was, that the plaintiff himself being an agent of Murtuza Flour Mills and having admitted that he used to procure the goods for them he was not entitled to sue for the loss and misappropriation of those goods. I failed to understand how this stand of the defendants could advance the plea now raised by the learned counsel that the goods did not belong to plaintiff. I also failed to understand the argument that by describing the stock of wheat as "Government Stock" the plaintiff ceased to be owner of these goods. It is not disputed that the defendants while accepting the stock reports Exhs 6/20 to 6/22 accepted the goods as belonging to the plaintiff. It is also not disputed, that no other person or agency has claimed the ownership of these goods at any time either before or after institution of the suit. I accordingly hold that the plaintiff is entitled to sue for damages in respect of the loss and misappropriation of 3000 bags of wheat which were pledged with the defendant. Issue No, 4 :- ' Coming to the quantum of damages, the plaintiff has claimed the value of the goods lost as contained in the documents Exh. NI and 6/22. It is asserted that this value was in accordance with the prevailing market value of the goods. This statement of the plaintiff with regard to the valuation of the goods was not at all disputed or challenged by the defendants in cross-examination. In Exh.
6/1 and 6/22 the value of the goods is disclosed as 1,44,000 by the plaintiff. The certificate appended to this statement by the Godown-keeper of the defendants states that the rates mentioned in these exhibits are according to the ruling market quotation on that day. It has not been urged on behalf of the defendants that the above endorsement made by their godown- keeper was incorrect or that it was collusively made. I accordingly hold that the value of 3000 bags of wheat on 12th July, 1973 which was pledged with defendants was Rs, 1,44,000. The loss of these goods is not denied. I accordingly hold that the plaintiff is entitled to recover from the defendants a sum of Rs, 1,44,000 being the market value of the goods pledged with them which the defendants had failed to account for. Besides the value of goods the plaintiff has also claimed a sum of Rs, 48,229.47 as damages for loss of interest and a further sum of Rs, 5000 for ruining the business of plaintiff. The plaintiff has however, failed to prove damages of Rs, 42,229.47 and Rs, 5,000 claimed by them. However, the plaintiff had demanded from the defendants adjustment of the value of the pledged goods against their overdraft account on 21st November 1973. The receipt of this letter is admitted by defendants. As the defendants wrongfully refused to allow adjustment of value of goods when demanded by plaintiff, I allow interest to the plaintiff on the value of goods at the rate of 9% per annum from the date of demand till the filing of the suit. I also allow plaintiff interest at the same rate from the date of filing of the suit till the amount is paid. The result is, that the suit is decreed against the defendants in the sum of Rs, 1,44,000 with cost and interest at the rate of 9% per annum from 22nd November 1973 till the amount is paid.