' SHAHNAWAZ TARIQ, J.---Through the instant appeal, appellant Aijaz Mahmood has assailed the judgment dated 29-10-2009 and decree dated 17-11-2009 passed by the learned Banking Court No,IV, Karachi in. Suit No,137 of 1999, whereby the suit filed by the appellant for recovery of damages was dismissed.
2. Relevant facts in brief relating to the present appeal are that the appellant originally filed the suit bearing No,406/1989 before this Court for accounts and recovery of Rs,3,027,983.13 under the Banking Companies (Recovery of Loans) Ordinance, 1979. In the month of March 1989, under the banking jurisdiction of this Court. Subsequently, said suit was transferred to the Banking Court No, IV, Karachi due to change in pecuniary jurisdiction' under the Banking Companies (Recovery of Loans Advances, Credits and Finance, 1997), and was re-numbered as Suit No,137 of 1999. The appellant/plaintiff has stated in the plaint that the appellant opened a Current Account in the month of April 1983 with the respondent/defendant for the purposes of importing goods under various letters of credit and negotiated the credit facilities on mutually agreed rates of returns and terms of payments and further pledged the imported merchandise as security with the respondent to avail the said credit facility. The appellant opened three letters of Credits No,830084 dated 30-5- 1983, L/C No,830102 dated 18-8-1983 and L/C No,830203 dated 18-8-1983 for import of PVC resins.
On arrival of merchandise in L/C No,830203, the delivery of goods were unwarrantedly delayed due to the actions of the respondent i.e, escalation of prices by arbitrary adjustment, high interest, mark up and profit charges, deviation from the securities. The highly un-commercial practices, release of goods, foul practices, carelessness and negligence of the respondent caused the losses to the appellant to the tune of Rs,1,478,105. The respondent also charged Rs,1,031,376.49 interest beyond the agreed rate and further an amount of Rs,518,501.64 was not credited to the appellant's account by the respondent to render the accounts by the respondent. The appellant in the month of June, 1987 requested the respondent to render the accounts, however, the respondent instead of rendering the accounts, filed suit against the appellant. The appellant prayed for direction to the respondent to pay a sum of Rs,3,027,983.13 on account of damages, loss suffered and unaccounted for money or the amounts found to be due along with interest at the appropriate rate from the date of filing of the suit against the respondent
3. The respondent filed application under Order XXXVII, Rule 2, C.P.C. For grant of leave to defend the suit on 22-5-1989 and later on filed the amended application for leave to defend on 31-5-1989, which was allowed by the court vide order dated 24-12-1991.
4. Thereafter the respondent filed written statement whereby the maintainability of the suit and bar on ground of limitation were taken as preliminary objections. It was denied by the respondent that the account was for the purpose of importing goods only. Accordingly, the terms of the agreement between the parties were reduced in writing vide letter dated 9-9-1983, and the appellant was granted overdraft facility of Rs,3,50,000 and a documentary credit line of Rs,5.00 million at the interest rate of 4% subject to minimum of 14% per annum along with 5% over and above the said rate in case of delay, default or irregular payments of principal amount or interest by the appellant to the respondent. The said credit facilities were secured by General Security Agreement, 5% cash margin and hypothecation over stocks etc. The appellant also gave following other securities in addition to pledge of imported merchandise for the purpose of securing credit facilities:--
(a) Personal Guarantee of the appellant dated 31-7-1983.
(b) Promissory note in the sum of Rs, 300,000,0 (Rupees three millions) dated 11-8-1983.
(c) Letter of Hypothecation in the sum of Rs, 500,000 (Rupees five lacs) dated 1 1 th August, 1983.
(d) General Security Agreement relating to goods dated 24th December, 1983.
5. The respondent further stated that the L/C No,830203 was opened by the respondent on the instructions of the appellant and the respondent paid the amount in respect thereof and debited the account and the consignment of PVC resins were kept in custom bonded warehouse and the appellant took over the delivery of the goods from the warehouse upon payment made by the respondent and issuance of delivery orders. The respondent is not responsible for the damage to the bags of PVC resins as the same were discharged by the Vessel in the damage condition and fact of damage condition was admitted by the appellant in his letter dated 8-12-1986 addressed to the respondent. Similarly the loss due to re-packing of damaged bags was not the responsibility of the respondent. It was further stated that the respondent was entitled to the interest paid on the custom duty. The respondent denied the claim of the appellant being false and baseless pleaded that no extra charge has been levied and the claim of the appellant on this account is already sub-judice before the Court in another Suit No,764/1987, New Suit No,1 r83/1997. The appellant's account has been maintained by the respondent in accordance with sound banking practice and law. The appellant has filed this suit with mala fide intention only to pressurize the respondent to its suit for recovery already filed by the respondent, therefore, appellant's suit is fit to be dismissed with cost.
6. From the pleadings of the parties issues were framed by the trial Court on 8-3-1992 which are reproduced as under:--
(1) Is the suit maintainable against the defendant under the Banking Companies (Recovery of Loans) Ordinance, 1979?
(2) Is the suit barred by limitation?
(3) Whether the delay in the delivery of the goods to the plaintiff was caused by the defendant?
(4) Whether the defendants have debited to the account of the plaintiff interest and penal interest in contravention of the agreement between the parties?
(5) Did the plaintiff suffer any loss or damage on account of any of the actions of the defendant? If so, what is the amount of such damage?
(6) What should be the decree be?"
7. The appellant and the respondent both of them produced one witness each before the learned trial Court. After completion of the evidence, the parties also filed their written arguments in support of their respective claims, and ultimately the learned Banking Court No, IV, Karachi has passed the impugned judgment and decree whereby Suit No,137 of 1999 of the appellant was dismissed by the court as referred above, therefore, the appellant has filed the instant appeal before this Court.
8. Learned counsel for the appellant has vehemently contended that the appellant opened L/C with the respondent but the respondent delayed in payment of overdraft, which resulted in sustaining the losses to the business and imported goods details of which have been stated in the memo of appeal and evidence of the attorney of the appellant. He has further contended that the claim of the appellant has been proved by way of convincing evidence produced by the appellant as such the appellant has brought on record the whole material showing the sustaining of losses and damages to him, therefore, the impugned judgment and decree may be set aside and the instant appeal may be allowed.
9. Conversely learned counsel for the respondent while vehemently controverting the arguments advanced by the learned counsel for the appellant, has submitted that the suit has been filed as counter blast to the Suit No,1183 of. 1997 already filed by the respondent for recovery of outstanding dues against the appellant. He further contended that the present suit has been filed subsequently with ulterior motives only to avoid and delay the payment of dues already claimed by the respondent. He also contended that the evidence is miserably lacking to show that the appellant sustained any loss or damage due to any default in payment by the respondent, as such the learned trial Court has rightly dismissed the suit of the appellant and the appeal is also liable to be dismissed.
10. We have heard the learned counsel for the parties and scanned the material available on record with their assistance.
11. Perusal of record reflects that the case of the appellant is that the appellant was operating his current account with the respondent, and he also opened three L/Cs. The appellant imported the consignment and same was negotiated by the appellant with the shipper at Brazil directly. On arrival of merchandise the delivery of goods was delayed due to non-payment of the dues by the appellant to the official authorities as well as to the respondent as per terms and conditions of agreement as well as other relevant documents executed by the appellant. In support of his claim, the appellant has examined one Umer Mehmood, being his attorney, who also filed his affidavit in evidence and reiterated the whole claim setup by the appellant in his plaint.
12. Admittedly, onus to establish the series of allegations levelled by the appellant regarding causing of alleged damages as agitated in his suit, absolutely and unquestionably lies upon the part of the appellant that the alleged losses and damages were caused by an act, omission or unnecessary negligence committed by the respondent or the respondent had deliberately failed to comply with its responsibility for which the respondent was bound under the correspondence and documents duly executed between the parties. But the appellant has failed to establish his claims of damages against the respondent through adducing persuasive evidence supported by the relevant documents before the learned trial court.
13. For the sake of our convenience, the relevant portions of cross-examination of the attorney of the appellant namely Umer Mehmood are reproduced as under:-- "It is fact that Aijaz Mehmood plaintiff is the sole proprietor of Mehmood Industries. It is correct that overdraft facility was granted to Aijaz Mehmood by the defendant Company. It is fact that all the banking documents were signed by the plaintiff, Aijaz Mehmood, who was operating the account No,01-007178-01 and it was opened in April, 1983. It is fact that Aijaz Mehmood had availed overdraft facility against his said account. It is fact that Aijaz Mehmood had opened three letters of credits in order to import the goods. It is correct that in L/C No,830203, the plaintiff had imported 300 metric tons PVC resins from Brazil. It is fact that value of abovementioned L/C, C&F value of consignment was Rs,26,80,207.20. It is fact that the custom duty was paid Rs,18,99,074.00. It is correct that the consignment was imported and same was negotiated by the plaintiff with the shipper at Brazil directly. It is fact that I was not present at the time of discharge of goods from the ship, at Karachi.
It is fact that I have not produced any document from the Port Authorities to show the condition of the consignment at the time of discharge. It is fact that it was plaintiffs responsibilitu to pay custom duty as well as Day the value under L/C to the bank. The suit consignment was discharged at KPT in October/November, 1983. We had paid the custom duty in month of March Aril 1985 &ler Passing one year of custom bonded warehousing facility. The customer authority had imposed penalty due to delay of the custom duty. It is correct that it was our responsibility to pay godown charges and other hiring charges. The said stock of PVC resins the consignment under L/C was pledged with the defendant. It is correct that as per our requirement we first used to pay to the bank according to the value of bags and then obtained delivery orders of such bags from the defendant and then released from the warehouse. It is correct that 401 bags are still lying under pledge with the defendant. The pledged goods were to be released by the plaintiff within six months from the date of its pledge. It is fact that since we did not make the payment to the defendant, therefore, the pledge bags could not be released within the period of six months. It is correct that we have to pay the defendant the value of 401 .Led .e b. As. It is correct that defendant never restrained us to release the all pledge goods upon payment. We did not issue any notice or protest to the bank alleging damage and its extent done to the pledged goods. It is correct that the consignment of PVC resins were packed in bags in paper bags. The damage comprised of the pledged goods was only due to tonnage of the paper bags. The consignment was packed in the paper bags by the shipper. It is correct that the plaintiff had not got survey of the damagedbays.
It is correct that the plaintiff has any the unfit of the said PVC resins due to damage. It is correct that defendant has filed recovery suit against the plaintiff in year 1987 for recovery of Rs,14,89,621.00. It is correct that we have filed the present suit in April, 1989. It is correct that no onboard survey of the consignment was carried out. It is correct that the damage to the goods/consignment was only due to torn-age of the paper bags. It is fact that we did not protest against the delivery of the suit consignment. It is fact that we have received the consignment as per delivery orders issued by the defendant. It is fact that the consignment so released to us has been fully utilized bu us. The consianment was insured with insurance company. It is correct that the insurance of and the insurer. It is orrect that it was our responsibility to pay the premium and other charms of the insurance. It is fact that we had not issued any notice to the defendant bank prior to filing the suit about the damages caused to the consignment."
(Emphasis added)
14, We have examined thoroughly the evidence adduced by the appellant's attorney namely Umer Mehmood who has admitted all claims of the respondent. He, in his cross-examination, has candidly admitted the availing of overdraft facilities by the appellant and execution of all the bank documents which were signed by the appellant Aijaz Mehmood, He further admitted that the appellant availed the overdraft facility against his account with the respondent and the appellant had opened three letters of credits. He further admitted that vide L/C830203, the appellant had imported 300 metric tons PVC resins from SANTOS, Brazil and the value of the said consignment was Rs,2,680,207/20, and the custom duty was paid in the sum of Rs, 1,899,074/80. He further admitted that at the time of discharge of goods from ship at Karachi Port, he was not present there. He also admitted that he did not produce any document from the Port authorities to show the condition of the consignment that at the time of discharge it was in damaged condition. He again admitted that it was responsibility of the appellant to pay custom duty as well as pay the value under L/C to the respondent. He further admitted that it was their responsibility to pay godown charges and other hiring charges. He also admitted that the stock of the PVC resins was pledged with the respondent and that 401 bags of PVC resins are still lying pledged with respondent. He further admitted that the pledged goods were to be released by the plaintiff within 6 months but they did not make payment to the respondent, therefore, the pledged goods could not be released within the period of 6 months. He also admitted that the appellant has to pay the respondent value of 401 pledged bags and the respondent never restrained them to release all the pledged goods. He further admitted that the -appellant did not serve any notice to lodge any protest with the respondent regarding alleged damages caused to the pledged goods. He further admitted that the damage to the consignment was only to the extent of damage to wrappers of the consignment, which were wrapped in common paper bags, and further admitted that the plaintiff had not got survey of the damaged bags nor the appellant got any report from the Lab regarding unfit condition of the PVC resins due to damage.
15. The evidence of the appellant is self explanatory which completely negates the claim of the appellant and it has established the damage to the consignment was only to the extent of its wrapper and damage to the wrapper in any way could not be treated as damage to the whole consignment. The appellant has not produced any evidence to show that what was the nature of the damage to the consignment and to what extent the consignment was damaged, nor the report from official surveyor, showing any damage to the consignment has been brought on record and since the independent evidence has not been brought on record to show that the consignment was damaged because of any fault or negligence of the respondent, therefore, it could not be concluded that the appellant sustained any loss due to any fault of the respondent.
The witness of the appellant has admitted that the consignment was insured and the appellant was required to pay the wrapper charges of the excess packing and it has not come on record to show that the appellant had paid the insurance charges to the insurance company or lodged any claim before the insurance company regarding any alleged damage caused to the imported goods. Even the said insurance company has not been impleaded as party in the present case.
The execution of the documents in respect of three L/Cs have been admitted by the appellant, as such it could not be said that the respondent was not required to claim any interest or profit against the terms and conditions of the agreement of the L/Cs. The appellant himself did not step in the witness box to depose about the alleged damage to the consigntnenc because of any fault of the respondent and the witness of the appellant, as discussed above, in his cross-examination has admitted simply tornage of wrapper of the consignment which was wrapped in paper bag and has not stated about any damage to the consignment itself. The attorney of the appellant has also admitted that all the released consignment has been fully utilized by the appellant. Appellant himself was responsible for not getting the consignment released promptly. The evidence led by the appellant is, therefore, miserably lacking to prove that the appellant sustained any damage because of any fault of the respondent.
16. The attorney of the appellant has admitted that the respondent has filed suit for recovery of amount (old No,764/1987, New No,1183/1997) against the appellant, while the appellant has filed his suit (old No, 406/1989, New No, 137/1999) for damages after about 2 years in the month of April, 1989. The attorney of the appellant has also admitted that no notice was issued to the respondents for the alleged damages prior to the institution of suit. The appellant miserably failed in discharging the burden to prove that he suffered the alleged losses because of the respondent, and due to this reason, the burden never shifted to the respondent to prove the contrary.
17. In view of the facts and circumstances discussed supra, we are constrained to hold that the appellant has failed to point any illegality or irregularity in impugned judgment, which is absolutely justified and in consonance with the record and does not call for any interference by this Court.
Consequently, the impugned judgment dated 29-10-2009 and decree dated 17-11-2009 passed by the learned Banking Court No, IV, Karachi are maintained and instant appeal being devoid of merits stands dismissed.