1. ' MUHAMMAD TASNIM, J.---This is an application under section 151, C.P.C., filed on behalf of auction-purchaser, whereby it is prayed that Official Assignee be directed to release the amount of short bags i.e, 1362 as well as also release the amount of income tax in proportion to the auction- purchaser.
2. ' In support of C.M.A. No,10904 of 2009 learned counsel for Auction-Purchaser has submitted that her client had paid Rs,1,32,00,000 (one crore thirty two lacs) for 11,070 bags of sugar, but Auction- Purchaser was delivered only 9708 bags. She further says that 1362 bags were to be lifted by the Auction-Purchaser but the sugar available at the Godown cannot be lifted in bags form. She further says that sugar has turned into black and it is injurious to health and not for human consumption. She further says that Auction-Purchaser has refused to collect said sugar from the Godown for the aforesaid reason. Through present application Auction-Purchaser has prayed that costs of 1362 bags lying with learned Official Assignee may be ordered to be refunded to the Auction-Purchaser as 1362 bags of sugar have not been lifted by the Auction Purchaser.
3. ' Learned counsel for Auction-Purchaser has further submitted that vide order dated 26-8-2009 this Court, by consent, appointed learned Official Assignee as Commissioner to sale stocks of sugar by inviting bids strictly in accordance with law and after fulfilling all the legal requirements. In compliance with aforesaid order, learned Official Assignee submitted Reference No,1 of 2009 on 7- 10-2009, paragraph-5 whereof reads as under:-- "(5) The Official Assignee respectfully submits for acceptance of highest offer of Rs,1.32 Crore of Messrs Muhammad Tariq Traders for the purchase of 11,070 bags of imported sugar packed in poly woven bags with polythene lining (i.e, 50 k.g.) with conditions that offer is free from all liabilities, taxes etc. And as per weight of 50 kg. Per bag."
4. ' Learned counsel for Auction-Purchaser has further invited my attention to the advertisement dated September 12th, 2009 appeared in daily "DAWN", whereby bids were invited for sale of 11,070 bags of sugar lying in polythene bags of 50 kgs and on "As is where is" basis and in response thereto the Auction-Purchaser made offer, which -was submitted by the Official Assignee, per Reference No,1 of 2009 dated 1-9-2010, and such reference was accepted by this Court per order dated 21-10-2009. Relevant whereof is quoted hereunder: "I would accept the learned Official Assignee's Reference No, 1 of 2009 dated 7-10-2009, in terms whereof he has sought acceptance of the highest offer of Rs,1.32 crores, ultimately submitted by Messrs Muhammad Tariq Traders for the purchase of 11,070 bags of imported sugar packed in poly woven bags with polythene lining and so it has now been agreed between the plaintiff and the auction purchaser that the auction-purchaser shall purchase the entire stock which consists of 12,473 bags on the same terms and conditions as noted above and submitted by the learned Official Assignee through the above reference, on "as is where is" basis, to which Mr. Mansoor-ul- Arfin, advocate has no objection.
5. ' Delivery orders in respect of 11,070 bags shall be issued by the learned Official Assignee against payment of Rs,1.32 crore by the auction purchaser. Such payment shall be made within 15 days; and for the delivery of balance quantity/numbers 1,403 bags, the plaintiff shall issue delivery order upon receiving payment of Rs,1,672,953 within 30 days from today, which amount in terms of kilo gram comes to less than Rs,24 per k.g."
6. ' Learned counsel for Auction-Purchaser further submitted that on 6-10-2010 C.M.A. No,10904 of 2009 was taken up and the Court passed following orders:-- "In order to resolve this controversy, it would be expedient to depute the Official Assignee to visit the Godown and make proper inspection regarding the condition of remaining bags and its weight with another important aspect, whether it is fit for human consumption or not. The Official Assignee will submit his comprehensive report for the remaining 1362 bags lying in the Godown and pledged with Soneri Bank Ltd. The Official Assignee will also show in his report the weight of each bag separately and mark numbers with marker and also report the quantity of torn bags, and any stock which is not fit for human consumption will be packed separately and marked separately. The Official Assignee will send sample to the reputable laboratory and obtain report whether the stock is fit for human consumption or not. The Official Assignee will inspect the stock with advance notice to the parties."
7. ' In compliance to the aforesaid directions of the Court learned Official Assignee submitted Reference No,3 of 2010 on 27-10-2010, wherein in paragraphs Nos.3, 4 and 5, it is stated as under:-- "(3) At the very outset I would like to mention that from the general appearance of the stock of sugar, it appeared that the condition of Sugar is totally in ruinous and damaged condition. All the bags containing sugar were also in damaged, torn and dilapidated condition. It is not possible to take weight of the bags in their present condition. Most of the bags were in torn condition and were lying scattered on the ground. The colour of sugar was changed from white to black brown. The colour of bags had also totally changed to blackish. There was "sheerah liquid" of brown and blackish colour spread over on the ground which did not appear like sugar. The entire sugar is not fit for human consumption. It would be wastage of money and time to call for' the report of such sugar from the laboratory. However, the samples have been collected from the spot which are produced before the Hon'ble Court in plastic packets. There is no question of taking weight of the sugar in its present condition for the reason that the condition of bags is totally miserable not possible to be lifted or to be removed from the present position.
(4) There are 3 lots of sugar bags lying on the ground. The position and condition of 3 lots have been found as under:-
(a) Lot No,1:- ' Consisting of 310 bags. All in damaged and torn condition and not possible to take weight of the sugar. Some of the sugar was in sweeping condition in "liquid Sheerah of Sugar". The colour of the sugar totally changed from white to brown, some of sugar lying scattered on the ground floor.
8. Sample was taken. This sugar did not appear fit for human consumption.
(b) Lot No,2:- ' Consisting of 130 bags in damaged condition. The colour of sugar changed totally from white to dark brown. The damaged bags are of blackish colour. From appearance, the bags which were in damaged condition are containing different weight but not possible to take weight. Some of the sugar is lying scattered on the ground in sweeping condition. The sugar is not fit for human consumption. The samples taken from bags.
(c) Lot No,3.
9. ' Consisting of 2327 bags of sugar. From the stock of sugar bags it appears that some bags are containing some quantity of sugar. The weight of which could not be determined, nor possible to take its weight. Some of the empty bags are lying on the ground near to pile up stock of damaged sugar bags.
(4) The General condition of the entire three lots of the sugar is totally in ruinous and damaged condition. It does not appear like sugar. The colour of the sugar has totally changed from white to black-brown. Some of the bags are containing liquid "Shirah" of sugar. It is not possible to be collected and filled in the bags. The entire stock of sugar is not fit for human consumption.
(5) The Inspection Notes taken at the spot in hand written have been signed by all who were present at the site in annexed as 'A'. Typed copy of Inspection Note for the convenience of the Hon'ble Court is also annexed as annexure 'B'. Three samples of sugar taken from the damaged bags, are placed in plastic packets before the Hon'ble Court. The compliance of order dated 6-10- 2010 has been made as per direction of the Hon'ble Court."
10. ' The examination of the above quoted reference would show that sugar is in ruinous and damaged condition, it does not look like sugar. The colour of the sugar has totally changed from white to black. Some of the bags containing liquid sugar. It is not possible to collect and fill in the bags. She further states that entire stock of sugar is not fit for human consumption.
11. ' Learned counsel for Auction-Purchaser has lastly submitted that in the circumstances of the case the Auction-Purchaser is ready to bear some loss in the entire transaction. She further says that an amount of Rs,16,24,067 is recoverable from the Official Assignee being the costs of 1362 bags, which were not delivered to the Auction Purchaser. She further says that as a gesture of good-will the Auction-Purchaser does not claim Rs,6,24,067 from the Official Assignee and only claims Rs,10,00,000 (Ten Lacs).
12. ' Such application is vehemently opposed by learned counsel for plaintiff. It is contended that Auction-Purchaser should have lifted sugar in the year, 2009. Learned counsel for plaintiff submitted that as per Survey Report, at the time of survey it was sugar and due to delay on the part of Bank as also Auction Purchaser the sugar has turned into black. He says that no amount be refunded to the Auction-Purchaser. On the contrary he says that an amount of Rs,16,72,953 may be ordered to be paid by Auction Purchaser to the plaintiff, which is the costs of 1403 bags, which were ordered to be delivered to the Auction-Purchaser by the plaintiff on receipt of Rs,16,72,953.
13. ' The examination of the Survey Report dated 4-7-2009 shows as under:-- *Wet/damaged, both sides stitched7.704 bags *Wet/damaged, refilled 2,515 bags *Wet/damaged, lesser quantity *(01 Kg to 20 kg) in the bags 2,254 bags Total 12,473 bags"
14. ' The perusal of the above indicates that at the time of inspection, the aforesaid sugar was wet/damaged and there were number of bags, which were containing lesser quantity ranging between 1 kg to 20 kgs.
15. ' Mr. Mansoor-ul-Arfin, learned counsel for defendant on instructions from the Bank Representative has no objection if amount of Rs,10,00,000 may be ordered to be refunded by the learned Official Assignee to the Auction-Purchaser.
16. ' From the above, it will be noticed that per order dated 21-10-2009 delivery order in respect of 11,070 bags was to be issued by learned Official Assignee against payment of Rs,1.32 crore by Auction- Purchaser, but only 9708 bags of sugar have been delivered to Auction-Purchaser. For remaining 1362 bags of sugar present application for refund of costs of 1362 bags has been made.
17. ' As per Official Assignee's reference, it is not fit for human consumption. It cannot be allowed to be given to Auction Purchaser to collect the same and sell it in the Market, which may cause serious health-hazards to the citizens.
18. ' In the circumstances, I allow this application with consent of Learned Counsel for defendant and order the Learned Official Assignee to return the amount of Rs,10,00,000 to the Auction-Purchaser on proper verification. Learned counsel for plaintiff says that he wants to file appeal against this order, hence he says that Learned Official Assignee be directed not to release the amount to Auction Purchaser for two weeks. In the circumstances and keeping in view the request of learned counsel for plaintiff, Learned Official Assignee is directed not to release such amount for a period of ten days from today.
19. ' Learned Official Assignee is directed to destroy the remaining stock of sugar putting it to fire/burning under his own supervision.