' RAUF AH MAD SHAIKH , J. - - -The appellant has assailed the judgment and decree dated 14-5- 2002 passed by learned Judge, Banking Court, Gujranwala, whereby a suit for recovery of Rs,3,33,05,348 with 19% interest till payment or in the alternative delivery of goods, filed by the plaintiff/appellant against the defendants/respondents was dismissed.
2. The plaintiff/appellant, a registered firm had contended that in the year 1962 it obtained loan from Australasia Bank Limited, Gujranwala, succeeded by respondent No,1 by providing the securities mentioned in para-4 of the plaint. Australasia Bank had filed a suit against the plaintiff/appellant for recovery of Rs,7,96,730 allegedly due at the time of institution of the suit. The plaintiff/appellant filed the written statement and controverted the contentions of the Bank. On 27- 10-1969 the plaintiff/appellant filed a suit against the defendants/ respondents for rendition of accounts, which was contested by the defendants/respondents. On 13-3-1973 a preliminary decree was passed in favour of the Bank and against the defendants and the trial Court appointed the Local Commission, who submitted the report on 3-1-1981. The plaintiff/appellant contended that in October, 1992, the defendant/respondent No,2, who was the Provincial Recovery Chief of respondent No,1 made a proposal to the plaintiff/appellant that if a sum of Rs,8,40,000 was paid, the suit against it would be withdrawn and all the securities provided by the plaintiff/appellant would be redeemed/restored and the plaintiff/appellant should also withdraw the suit for rendition of accounts filed by it. After negotiations the parties entered into an agreement and accordingly the agreement deed dated 23-12-1992 was executed and duly signed by the parties. The plaintiff/appellant deposited a sum of Rs,8,40,000 with the respondent No,1 on 23-12-1992 and the suit for recovery filed by respondent No,1 was dismissed. The plaintiff/appellant also withdrew the suit for rendition of account. The plaintiff/appellant made a request for return of the title deeds, pledged goods and redemption of the immovable properties mortgaged in favour of the respondents. It is contended that the Bank authorities informed that they were ready to redeem the immovable properties, return the title documents and would direct the concerned officers to hand over the pledged goods and machinery after recovering the same from defendants Nos.10 to 15.
The documents of title except the land situated in Mandialla Warriach, Chah Nawan, Tehsil Gujranwala, were returned. The title documents of the above-mentioned property were also withheld illegally and the plaintiff/appellant apprehends that the same has been misappropriated.
It was alleged that the defendants Nos.10 to 15 of the original suit had taken illegal possession of the mortgaged factories and removed the machinery but the defendants withdrew the suit against them also illegally. It requested the Bank authorities to hand over the machinery and pledged goods but they have refused to do so. With these contentions, the plaintiff/appellant prayed for a decree for recovery of stocks, machinery and title deed or in the alternative for a sum of Rs,3,33,05,348 being price of the pledged goods, price of the land at Mandialla, Gujranwala and machinery.
3. The defendants contested the suit on factual and legal grounds. It was contended that the properties were redeemed and the title deeds were obtained by the plaintiff/appellant from the Banking Court. It was urged that the goods and machinery were not in possession of the Bank and that the suit against defendants Nos.10 to 15 to whom the management and possession was given by the plaintiff/ appellant itself stood withdrawn along with other defendants including the plaintiff/appellant. The learned trial court accordingly framed the following issues:--
(1) Whether the plaintiff has no locus standi to file this suit? OPD
(2) Whether the suit is barred by time? OPD
(3) Whether the suit is bad for mis-joinder of defendant No,2, if so, its effect? QPD
(4) Whether the plaintiff is entitled to recovery any money from the defendants, if so, to what extent? OPP
(5) Whether the defendants have committed breach of the agreement, if so, its effect? OPP
(6) Relief.
4. After recording the evidence and hearing the arguments, the learned trial Court proceeded on to dismiss the suit. Issue No,3 was decided in favour of the plaintiff/ appellant whereas the remaining issues were decided against it. The findings on these issues have been challenged.
5. It is contended by the learned counsel for the appellant that the learned trial court has failed to keep in mind that the High Court remained closed from 28-12-1995 to 8-1-1996 and as such the filing of the suit on 8-1-1996 was within time. It is urged that the agreement dated 13-12-1992 was not correctly interpreted and the trial court could not take notice of it that the Bank was under obligation to redeem the properties and release the machinery and stocks also but had not done so. The appellant had provided securities in the shape of mortgage of immovable properties and pledge of stocks and machinery, etc. And the Local Commission had categorically declared that these stocks were in possession of the Bank and this fact is further fortified from the copy of the plaint filed by the defendants/ respondents. It was urged that these are admitted documents and the learned trial court failed to appreciate the same. It was urged that the demand was made through institution of the suit, which could have been filed within three years of the accruing of the cause of action.
6. The learned counsel for the appellant has contended that the machinery attached to the ground forms part of the immovable property and as such clause-C of the agreement deed has not been rightly interpreted by the learned trial Court. In support of the contentions raised, they have placed reliance on the case law reported as Official Liquidator v. Sri Krishna Deo and others (AIR 1959 Allahabad 247), Duncans Industries Ltd. v. State of U.P. And others {(200 ( 1) A.W.C. 464 (S.C.)}, Addu Achiar v. The Custodian, Evacuee Property, Hyd-Decean (AIR 1953 Hyderabad 14) and J. Kuppanna Chetty, Ambati Ramayya Chetty and Co. v. Collector of Anantpur and others (AIR 1965 Andhra Pradesh 457). It is contended that no cross-examination was put in respect of the contents of Exhs.P.1 to P.5 so this part of the contention of the appellant regarding prices of the machinery goes unrebutted. In support of the contention raised, reliance is placed on Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba All Naqvi (1991 SCMR 2300), Jan Muhammad v.
Mulla Abdul Rehman and 4 others (1999 CLC 266) (Quetta) and Sakhi Muhammad v. Muhammad Nasir Bashir (1999 CLC 454). It is contended that the Bank was under obligation to keep the pawned goods intact and deliver the same on receipt of the money. In supported of the contention raised, reliance is placed on A.M. Burq and another v. Central Exchange Bank Ltd. And others (PLD 1966 (W.P.) Lahore 1), Nazarul Hussain v. The Collector, Lahore District, Lahore and 5 others (PLD 1990 Lahore 472) and Government of Pakistan, Secretaries, Works, Communications and Physical Planning v. Tauqir Ahmed Khan and others 1996 SCMR 968.
8. On the other hand, the learned counsel for the respondents has vehemently supported the findings recorded by the learned trial Court. It is urged that the suit was, in fact, for, recovery of damages so it could have been filed within three years only and as the same was not filed within three years of accruing of cause of action, if any, so was hopelessly barred by time. It is urged that the agreement deed on the basis of which the previous suits were decided is an admitted document and it does not provide that any stocks or machinery was in possession of the respondents/ defendants and was required to be returned. It is contended that the oral evidence in respect the contents of this document is not admissible in evidence. In support of the contention raised, reliance is placed on Hazratullah v. District Council, Haripur (1997 SCMR 1570), Parveen Begum and another v. Shah Jehan and another (PLD 1996 Karachi 210), Maula Bakhsh v. Allah Ditta (1989 MLD 4633) (Lahore), Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385) and Saleh Muhammad and others v.
Subedar-Major Muhammad Bakhsh and others (PLD 1960 (W.P.) Lahore 231).
9. The High Court remains closed for the Judges of the High Court till 8th January every year. The suit was filed on the last day of the winter holidays so it was not barred by time and the findings of the learned trial court on issue No,2 are not maintainable and the same are reversed.
10. According to the appellant, the machinery and stocks were not released according to terms of the agreement deed so it is entitled to recover the same and as such the suit is maintainable. The contention of the learned counsel for the respondents that all questions as to the implementation of the agreement are to be determined by the learned Executing Court so the suit was not maintainable in view of section 47, C.P.C. Is without force because no decree was passed and the suit was withdrawn due to compromise in terms of the agreement. To determine as to whether the plaintiff has the cause of action or locus standi the contents of the plaint are to be kept in view. On the basis of averments made in the plaint, the plaintiff had the locus standi. Whether it fails or succeeds is a different question of merits. The findings of the learned trial Court on issue No,1 are also not sustainable and same are reversed.
11. The main controversy revolves around the interpretation of the agreement deed (Exh.P.20). The appellant and respondent No,1 agreed that a sum of Rs,8,40,000 would be paid by the appellant against the outstanding amount and would withdraw the suit for rendition of accounts and that on receipt of agreed amount, the respondent No, 1 would also withdraw its suit for recovery, release and redeem the immovable properties mortgaged/attached. The details of the properties were given in Clause-C of the agreement. It is true that if the machinery is attached or fastened with the ground of the immovable property, the same would be considered as immovable property as held in the case law cited at the bar but the stocks, etc., under pledge cannot be deemed to be part of the immovable property by any stretch of imagination. The main contention of the learned counsel for the appellant is that in the plaint of suit filed by respondent No,1, it had admitted that the stocks and the machinery were in its possession along with the immovable properties and other securities. The said suit was filed in the year 1965. It is mentioned in the plaint that immovable properties were mortgaged and the securities including stocks lying in the Mingora Odiogram Mill worth Rs,2,50,000 were provided. This was the position in 1965 but the agreement deed (Exh.P.20) was executed in 1992 so the position at that time would be brought under consideration. There is nothing on the record to prove that any stock was in possession of the respondents at the time of the execution of the agreement deed. Had there been any C pledged stock with the respondent, the same would have been specifically mentioned in the agreement deed. The oral evidence regarding the contents of admitted document would be excluded under Article 103 of the Qanun- e-Shahadat Order, 1984. The machinery and Mills were not mortgaged with possession. The possession remained with the plaintiff/appellant. Sh. Abdul Ghafoor (P.W.1) the sole witness produced by appellant had not mentioned that this was mortgage with possession or the possession was ever with the respondents/defendants. The quotations (Exhs.P.1 to P.5) have no relevance as the same do not prove that the machinery was in possession of the respondents or the same was ever removed therefrom. In fact, from withdrawal of the earlier suit till filing of the instant suit the appellant never raised the contention that any machinery was in possession of the respondents or was removed by them. The case law cited at the bar by the learned counsel for the appellant in this regard is not applicable on the facts of the present case.
12. The most important aspect of the matter is that on 23-12-1992 the learned counsel for the appellant and the learned counsel for the respondent No,1 got a joint statement recorded, wherein it was categorically stated that from the said date nothing was due from the parties to each other.
In view of this categorical statement of the learned counsel for the appellant, they cannot say that any stock or machinery was with the defendants/respondents or the same was misappropriated.
The objections were filed on the report of the Local Commission in the previous suit and it was never accepted as correct by the court as had never been proved. The said suit was filed with almost same contentions and was withdrawn unconditionally. The subsequent suit regarding recovery of the price of stocks or machinery was barred under Order XXIII, Rule 1(3), C.P.C.
13. The other contention that the title deed of the land situated in village Mandialla, Gujranwala, was not returned is also not substantiated because the record of the court, inter alia, proving that the same was not returned has been produced. Above all there is no tangible proof available to establish that this land was sold by the respondents so the claim that the respondent-Bank is under obligation to pay compensation for the land is baseless. The plaintiff/appellant had badly failed to prove its contention. The learned trial court properly appreciated the evidence and arrived at correct and just conclusions. The findings of the learned trial court on issues Nos.4 and 5 are confirmed and upheld.
14. For the reasons supra, the appeal is without merits and the same is hereby dismissed with costs.