1. ' These are cross-suits between same parties in respect of the same subject-matter and therefore I propose to dispose them by a single judgment. Suit No, 475/77 had been filed by Muhammad Hussain Prop. Of Messrs Muhammad Saeed Muhammad Hussain hereinafter called the "firm" for recovery of Rs, 2,84,474.13. The plaintiff is an exporter of sheep casings. He had an account with United Bank Ltd. Chakiwara Branch hereinafter referred as the "Bank". Initially, against Packing Credit facilities the Bank had granted a limit of loan for Rs, 1,00,000 which was extended to Rs, 2 lacs on condition that advance was to be secured against pledge of stocks of sheep casings. The limit granted to the firm was utilized from time to time and on 30th January, 1975 the total value of the goods pledged by the plaintiff was Rs, 6,84,000 and the firms drawing was enhanced to Rs, 3,42,000. On 30th January, 1975, 120 tins of sheep casings and 30 bags of original casings worth Rs, 4,20,000 were pledged and stored by the Bank in the commercial cold storage. Stock worth Rs, 2,64,000 were also pledged and kept in the godown of the firm. The firm has alleged that thz pledged goods were under the control of the Bank and the firm had no access to it. On 5th January, 1977, the Bank asked the firm to be present for shifting the stock from the premises of Commercial Cold Storage to some other place as the cold storage of Commercial Cold Storage was not working for the last 25 days. It is alleged by the firm that prior to this no information had been given to it that the cold storage had ceased to function. The pledged goods stored in the Commercial Cold Storage were completely destroyed. The firm has further alleged that the pledged goods were stored in tile Commercial Cold Storage at the instance and on the instructions of the Bank who at all material times had the custody and control of the goods and as they failed to make necessary arrangement for its preservation, the goods were destroyed due to their negligence and failure in discharge of their duties, they are liable to compensate the firm for Rs, 4,20,000. The firm further alleged that on 14th February, 1977 the Bank made a demand for Rs, 1,35,525.87 as outstanding against the firm in its account. On this point it is pertinent to reproduce para. 11 of the plaint which reads as follows :- "That the plaintiff (firm) claims from the defendant bank the above-said sum of Rs, 4,20,000 and after deducting the abovesaid sum of Rs, 1,35,525.87 as demand by the defendant bank vide their letter dated 14th February, 1977, the liability of which is not admitted by him, the plaintiff would still be entitled to claim from the defendant bank the balance sum of Rs, 2,84,474.13 and to have the said amount credited to his account without prejudice to right of defence to the claim of the defendant for the said sum of Rs, 1,35,525.87".
2. ' The plaintiff firm thus prayed for decree of Rs, 2,84,474.13 with interest at the rate of 13 per cent per annum from the date of filing of suit till payment.
3. ' The Bank in their written statement have admitted that the firm had an overdraft facility and the advance was allowed against export which was to be secured by export of goods. In view of the firms flourishing business the Bank had extended the loan limit to the firm. It has further been averred in the written statement that the firm was required to export the pledged goods immediately but the same was not done and it continued to export goods from its own godown. It is further alleged that the goods stored in the Commercial Cold Storage were not meant to be stored for indefinite period and the firm improperly and dishonestly kept the pledged goods stored and failed to export them. The Bank have denied that they were in any manner responsible for hiring the Commercial Cold Storage. It is also denied that for the first time in January, 1977 the firm was asked to shift goods from the cold storage. Actually the firm was informed as far back as in middle of 1975 and asked to replace the pledged goods stored in the cold storage as the same had deteriorated. It is alleged that the firm had agreed to replace the goods as they had deteriorated but deliberately failed to do so. It is further alleged that the cold storage was selected by the firm who being the owner of the goods were responsible for its preservation and export. The sank have denied that the firm is entitled to claim adjustment and further stated that proper court- fee has not been paid and no decree can be passed against them.
2. Suit No, 696/77 has been filed by United Bank Ltd. Hereinafter referred as Bank against Messrs Muhammad Hussain, proprietary firm of Muhammad Hussain hereinafter referred to as the firm, for recovery of Rs, 1,54,812.07. The Bank had granted loan to the extent of Rs, one lac against a promissory note, letter of Packing Credit, undertaking and the letter of pledge of goods executed by the firm. This limit was enhanced to Rs, two lacs and fresh promissory note was executed for the same amount on 21st December, 1974. The bank has admitted that the goods worth Rs, 4,20,000 were stored in the cold storage and loan advanced to the firm on that date stood at Rs, 2,03,232.76.
4. It has been alleged in the plaint that there might have been some shortfall in the required freezing temperature which must have affected the sheep casings. It is further alleged that it was the responsibility of the firm to store the goods in a proper cold storage with requisite temperature facility and ensure that they were exported without any delay. However, the firm exported the goods stored in its factory but completely ignored the goods stored in the cold storage. Due to inattention of the firm the sheep casings in the cold storage started deteriorating. The Bank reminded the firm of the same requesting it to adjust the advance. The firm failed to liquidate the amount of Rs, 1,54,812.02 which is claimed by the Bank.
5. ' In the written statement the firm has made all the averments stated above as contained in the plaint of Suit No, 475/77. The firm reiterated that it has already filed a suit for recovery of Rs, 2,84,474.13 after adjusting the said amount of Rs, 1,35,525.87. It has further been stated that since the goods had perished in December, 1976 the Bank is not entitled to Claim any interest, godown rent and chowkidar pay or any other charges from the firm after that date and all the entries to that effect in the statement of account have been denied. On the basis of these pleadings the following issues were framed :- "Suit No, 475/1977":
(1) Whether the suit is bad for non-joinder of Messrs Commercial Cold Storage.
(2) Was the plaintiff informed by the defendant in the middle of 1975 about the deterioration of the subject goods and kept at the premises of Messrs Commercial Cold Storage.
(3) Was the plaintiff responsible for the preservation and export of the subject goods ?
(4) Is defendant bank liable to compensate the plaintiff for the loss of goods worth Rs, 4,20,000 ?
(5) Is the defendant bank entitled to claim storage charges and insurance premium in respect of the subject goods after December, 1976 ?
(6) Has the plaintiff no cause of action against the defendant ?
(7) What should the decree be ?
6. ' Issues, Suit No, 696177 :
(1) Whether the defendant can adjust the sum of Rs, 1,35,525.87 before the adjudication of his claim in Suit No, 475/77 under the circumstances narrated in the written statement ?
(2) Whether the defendant is liable to pay the suit amount in addition to Rs, 1,35,525.87 ?
(3) What should the decree be ?"
7. ' Additional Issue.
8. ' Whether the price stated in the stock report (Register) dated 30th January, 1975 is based on export value or local price ?
9. Issue Nos. I and 2 in Suit No, 696177 :
(1) Whether the defendant can adjust the sum of Rs, 1,35,525.87 before the adjudication of his claim in Suit No, 475/77 under the circumstances narrated in the written statement ?
(2) Whether the defendant is liable to pay the suit amount in addition to Rs, 1,35,525.87 ?
(3) I will first deal with the above issues in Suit No, 696/77.
10. ' The firm has claimed an adjustment of Rs, 1,35,525.87 in its claim of Rs, 4,20,000 and has filed Suit No, 457/77 for recovery of the balance amount of damages from the Bank. The allegations of the firm are that it has suffered a loss of Rs, 4,20,000 due to the negligence and breach of duty on the part of the Bank and therefore it is entitled to recover this amount. On the other hand the Bank has claimed Rs, 1,54,812.07. The firm after giving credit to the Bank by adjusting Rs, 1,35,525.87 has claimed decree for the balance of Rs, 2,84,474.13. I have already reproduced the relevant portion of the pleading in the aforestated part. From this it is clear that the firm has completely admitted its liability to pay Rs, 1,35,525.87. A party can give credit by adjustment only if it admits the claim of the other side. No credit can be given to a disputed amount. The fact that after adjusting Rs, 1,35,525.87 the firm has reduced its claim from Rs, 4,20,000 to Rs, 2,84,474.13 clearly establishes that the firm has submitted the claim of the Bank to that extent. Mr. Khalilur Rehman the learned counsel for the firm has contended that the firm had pledged the goods and since the security has been destroyed by the bank therefore in view of PLD 1966 Lab. 1 the Bank is not entitled to recover the said amount. Although the firm in its plaint and in the written statement filed in Suit No, 696/77 all along pleaded that the security has been destroyed due to the negligence and breach of duty committed by the Bank still nowhere it has been stated that due to these reasons the Bank is not entitled to recover this amount. A In fact the firm voluntarily gave adjustment to the extent of Rs, 1,35,525.87. In the fact of this admission the plea raised by the learned counsel for the firm is not tenable. I, therefore, hold that on the basis of the account the Bank is entitled to Rs, 1,35,424.87 but the question for consideration under this issue is whether this amount can be adjusted in the claim of Suit No, 475/77. In the suit filed by the firm the specific plea has been taken that the goods worth Rs, 4,20,000 were pledged with the Bank. If in Suit No, 475/77 it is held that the goods were damaged due to negligence of the Bank and the Bank is liable to compensate the firm then while passing a decree the Court can take into consideration the claim made by the Bank and adjusted in the amount claimed by the firm. The learned counsel for the Bank has contended that as the firm has not paid court fee for the claim of adjustment which amounts to a counter claim, therefore, no adjustment can be granted. The firm's suit (475/77) is for recovery of Rs, 2,84,474.13. This amount has been calculated after adjusting the Banks claim to the extent of Rs, 1,35,525.87, in its claim of Rs, 4,20,000 claimed as damage suffered by the firm. No court-fee has been paid on this amount of Rs, 1,35,625.87 ' Therefore the firm's claim in Suit No, 475/77 shall be restricted only to the amount of Rs, 2,84,474.13.
11. The firm cannot claim adjustment without paying any court fee on the amount which is required to be determined and adjudicated as damages suffered by it this was pointed out to the learned counsel for the firm but he stated that the firm was prepared to pay the court fee after the decree has been passed. It is well settled that the plaintiff has to first pay the Court fee on the amount claimed by him and unless the Court-fee is paid normally the claim cannot be considered. A claim for adjustment is in the nature oa counter claim therefore court fee is payable.The firm had sufficient time to make proper application for payment of court fee on the claim for damage which included adjustment and recovery of the Balance but no step was taken nor even a genuine attempt was made in good faith to pay proper Court-fee. I would therefore allow the firm to restrict its claim of damages to the extent of Rs, 2,84,484.13 and if decree is passed in favour of the firm it shall be entitled to adjustment to the extent of Rs, 1,45,525.87 being the claim of the bank admitted by the firm.
12. Additional Issue.-Both the learned counsel agree that according to evidence on record the price of the goods stated in the stock report is based on export value.
13. Issue No, 1 in Suit No, 475/77.-It is an admitted position that the goods worth Rs, 4,20,000 were pledged with the bank and those goods were stored in Commercial Cold Storage. Mr. Inamul Haque, the learned counsel for the Bank has contended that this was an arrangement of the firm itself who had selected this cold storage for storing the goods at its own risk and responsibility and the Bank had merely constructive possession of the goods. This contention does not find support from even the Bank's evidence. The Bank has admitted that these goods were pledged to them under an agreement of pledge. The documents filed and produced by the parties show that the Bank had entered into negotiations with the Commercial Cold Storage and the oral evidence also proves that an arrangement was made by the Bank to store the sheep casings of the firm in that cold storage. Muhammad Nasir the Bank's P. W. 1 has stated that there was an agreement between the Bank and Commercial Cold Storage for hiring it for storing the goods. This agreement has not been produced by the Bank. Muhammad Hussain P. W. I has also stated that the Bank had entered into the hiring agreement with the Commercial Cold Storage and the sheep casings were selected by the Manager for the purpose of storing there and all these casings which were fit and proper were taken out from the godown and stored in the Commercial Cold Storage.
14. ' Mr. Khalilur Rehman, the learned counsel for the firm referring to Exhs. 5/21 and 5/22 has contended that the Commercial Cold Storage did not issue any letter to the firm with regard to hiring charges of the Cold Storage and all such letters were written to the Bank. It is thus established that the Bank had hired the Cold Storage for purpose of storing the pledged goods. In view of the aforestated oral and documentary evidence Commercial Cold Storage is not a necessary party. My finding on the issue is in the negative.
15. Issue No, 2 (in Suit 696177).-In this regard the learned counsel for the Bank has pointed out to Exh.5/17 a letter of Commercial Cold Storage addressed to the Bank on 15th September, 1975 stating that the goods stored in the cold storage were completely destroyed and they should be removed within 24 hours. The Bank has further stated that on receipt of this letter, on the same day a letter was sent to the firm intimating it of the correct position and the firm was asked to replace the goods immediately and the Bank called upon it to pay Rs, 2,30,906.98 which was due and payable on that particular date. A reference has also been made to the letter of the firm (Exh. 5/18) dated 17th March, 1976 in which a promise was made to pay Rs, 15,000 regularly. It was also stated that the stock worth Rs, one lac will be put by 15th April, 1976. The learned counsel for the Bank has construed this letter to mean that the firm had agreed to replace the stock as required by the Bank on 15th September, 1975. This construction does not seem reasonable because if the goods bad deteriorated to the extent as stated in the letter dated 15th September, 1975 the Bank could not have kept silent over the matter for 6 months for a reply that the firm would replace the stock. This letter, therefore, does not help the Bank in establishing their case, on this issue. On the other hand, the learned counsel for the defendant firm has contended that Exh. 5/16 which is purported to have been sent to the firm was never received by it and further that it was a forged and fabricated document merely to serve the purpose of the Bank. The learned counsel has referred to Exh. 5/15 and stated that from the evidence of P.W. 1 and D.W. 1 it is established that this letter was never sent and was never received by the firm.
6. Mr. Khalilur Rehman, the learned counsel has pointedly referred to the cross-examination of Ismail P.W. 2 where he has stated that all letters received in the bank are first entered into inward register maintained by the branch and inword number is marked on the letter received in the branch. He, however, admitted that no inward number was given to Exh. 5/17, the letter received from Commercial Cold Storage. The letter Exh. 5/15 is of doubtful existence because this letter is stated to have been served by peon book but the same has not been produced. The bank has not proved that they informed the firm in the middle of 1975 about the deterioration of the goods stored in the Commercial Cold Storage. Therefore, the question of replacement does not arise. One striking feature in this regard is that the Bank had allegedly written Exh. 5/15 when the situation as stated in the letter was alarming, the goods had deteriorated and the cold storage company had threatened to throw them out from its premises but no action was taken by any party. In spite of firms silence Bank also remained quiet till 5th January, 1977 when a telegram was sent by the Bank to the firm intimating it about the deterioration condition of the pledged goods stored at the cold storage. D.W. I has stated that immediately on receipt of this telegram he went to the cold storage with his brother and was informed that the cold storage was not working since 14th December, 1976. If the Bank had written letter on 15th September, 1975 under alarming conditions then normally during 15th September and 5th January, 1977 several letters and reminders would have been issued by them. The Bank admits that for about fifteen months they remained quiet. The very fact that the Bank remained silent over the matter proves that no such information was conveyed to the firm. The bank has failed to prove that in May 1975 they informed the firm about the deterioration of goods. My finding is therefore in the negative.
16. Issue No, 3.-It is an admitted position that the goods worth Rs, 4,20,000 were pledged with the bank and were kept in the cold storage. P.W. 1 an officer of the Bank has stated that an agreement was made between the Commercial Cold Storage and the bank containing the terms and conditions on which the pledged goods were to be stored in the said cold storage. He has further stated that the pledged goods were inspected by the manager before being stored in the Commercial Cold Storage and that the goods in the Commercial Cold Storage were in the custody of the Bank and without consent of the Bank no part thereof could be removed by the firm. He further admitted that the contract was between Commercial Cold Storage and the bank in respect of the goods stored therein and no dealings could have taken place between the Cold Storage and the firm. He further deposed that before sending goods to the said cold storage they were inspected and surveyed by the Manager of the Bank and at that time there was no complaint about the quality of the said goods. During the cross-examination the attention of the witness was drawn to the averment made in the plaint of Bank's Suit No, 696/77 wherein it was stated "that there might have been some shortfall in the required freezing temperature which must have affected that sheep casings."
17. He further stated that the Bank Manager used to personally go for checking of goods stored in the said cold storage every month. In January, 1977 according to him when the Bank Manager went with a representative of the firm to the Cold Storage he found that it was not functioning. Ismail was first examined by the Bank as P.W. 2 Exh. 6 and again he was examined in rebuttal Exh.
8. He has stated that he used to visit the cold storage every week and found the goods giving stinking small and insects were also visable. This fact according to him was known to Muhammad Hussain of the firm who had visited during November and December 1975. Ismail has admitted that having come to know about it he did not write any letter to the firm nor informed the head office of the Bank about this state of affairs. Nor did he write any report or any note to the effect that the goods lying at the Commercial Cold Storage were stinking or were in bad condition. At the end of his cross-examination he stated that it is correct that no information was given to the Health Department of K, M. C. He further stated that the goods lying in Commercial Cold Storage had not at all deteriorated but some of the goods which were affected were replaced by the defendant, Muhammad Hussain. Muhammad Hussain D.W. I has stated that the Bank had entered into hiring agreement with the Commercial Cold Storage and he was not consulted by the manager in the selection of the Cold storage. The key of the cold storage and its complete control had been with the manager of the bank. The stocks lying at the godown were also in the control of the manager of the bank. It is stated that for the first time it was on 5th January, 1977 that he received a telegram from the bank intimating him about the deteriorating condition of the pledged goods at the cold storage. He has further stated that he deputed his brother to whom the Commercial Cold Storage informed that since 14th December, 1975 the cold storage was not working and when he personally visited, the same information was conveyed to him on 7th January, 1977. When he went there he found the cold storage closed and thereupon he wrote a letter dated 14th January, 1977 to the Bank.
18. He has stated that he had no concern with Commercial Cold Storage which was entirely in the control and charge of the Bank. From the evidence stated above it is clear that the firm had pledged its goods as security for the export credit facility granted by the Bank to the firm. In consequence thereof the Bank got those goods stored in Commercial Cold Storage which was selected and hired by the Bank and was under their control. The Bank being bailees of the goods were bound to take as much care of the goods bailed to them as a man of ordinary prudence would under similar circumstances take of his own goods of the same quality and value. Mr. Inamul Haque the learned counsel for the Bank as contended that the goods were perishable in nature and they were not to be stored for an indefinite period and should have been exported within a period of 30 days. He further contended that the firm did not export the goods within the specified period and therefore it committed breach of agreement. He has taken up the position that the goods though pledged were in control of the firm and the Bank had only a constructive possession over the pledges goods. The contention of the learned counsel is against the weight of evidence on record and is not tenable and, therefore, the question of constructive possession does not arise. If the goods were stored in the godown under an arrangement between the firm and the Commercial Cold Storage then it was the duty of the Bank to have examined Commercial Cold Storage to show that the goods were stored there by the firm and not by the Bank. Various letters written by Commercial Cold Storage as stated above prov that there was direct dealing between the Bank and Commercial Cold Storage who used to increase the rent which was paid by the bank in the account of the firm without referring to the firm itself.
19. ' Under this pledge agreement Exh. 5/3 the goods mentioned in the schedule which included subject goods were delivered to the Bank as a security for the repayment of the loan that may be advanced to the firm. The concept of bailment is too well settled. It means the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose accomplished be returned or otherwise disposed of according to the directions of the person delivering them. The initial condition of bailment is that the goods pledged are delivered to the bailee. In the present case from the evidence it is sufficiently established that the Bank was a bailee. The fact that the firm did not export the goods does not mean that the contract of bailment was cancelled or vitiated. Muhammad Hussain the Prop. Of the firm has stated that his goods were stored in his own factory and also in the Commercial Cold Storage and both the godowns were under the charge and control of the Bank. He continued to export the goods under intimation to the bank and reduced his debit balance of Rs, 1,31,000. If the bank had any objection and the terms of agreement between the parties had not been complied with by the firm or that the export was not proper or that a preference was being given to the export of the goods stored in the factory's godown, the Bank had the right to cancel the contract or call upon the firm to pay the amount immediately. No steps were taken nor any such letter was written to the firm. In any event the Bank by their conduct have waived the breach if any. Therefore the objection raised by the learned counsel does not seem to be correct.
20. ' Mr. Inamul Haque the learned counsel then contended that the firm was granted a limit to the extent of Rs, 2 lacs and it was required to maintain a margin of 50%. According to Mr. Inamul Haque, the firm should have put security worth Rs, 1 lac only and no more and since the goods were worth Rs, 4,20,000 which was far in excess of the amount advanced to the firm and the margin required to be maintained, the Bank cannot be held liable for the loss of the excess goods which were pledged with the Bank. To appreciate the contention of the learned counsel it is necessary to refer to clause 6 of Exh. 5/3 which provides that an ordinary margin of 50% shall be maintained by the borrower. It clearly provides that the borrower shall maintain in favour of Bank a margin of 50% at the Bank's discretion between the market value of the securities and the balance due to the Bank.
21. Therefore, in terms of agreement for maintaining a margin of 50% the borrower had to pledge goods at least 1 times of the amount advanced to the borrower. The contention seems to have completely ignored this aspect of the case. It is, therefore, not correct to say that the margin was to be maintained only to the half of the amount. Further the defendant firm had put goods worth Rs, 4,20,000 which according to P.W. 2 Ismail was being examined by the manager regularly and the Bank at any stage did not object to the storing of the goods which were in excess of the amount of security. As the Bank knowing full well that the value of the pledged goods was in excess of the advance or the limit, accepted it and kept in their control merely to secure their interest they cannot be permitted to say that they were not responsible to preserve the excess security. As the excess security if any was accepted by the Bank for their own advantage the contention of the learned counsel for the Bank has no force. The learned counsel for the Bank then contended that the goods were damaged as they were of inferior quality. No document or evidence has been produced to prove this contention. In fact P.W. 1 has stated that at the time when the goods were removed from the godown to Commercial Cold Storage the Manager had personally inspected them. He had selected all such cases which according to him were of good quality or were not at all damaged. In view of this evidence the contention of the learned counsel for the Bank is not tenable. Having established that the Ban was the bailey of the goods which were pledged in good condition and were under the control of the Bank it was the duty of the Bank to have preserved those goods. However, export of the goods was the responsibility of the firm.
8. Issue No, 4.-The evidence discussed above under issues Nos. 2 and 3 will also cover this issue.
22. The learned counsel for the Bank has contended that the Bank is not liable for the goods which were damaged. It has been held that the goods were in proper and good condition at the time when they were stored in Commercial Cold Storage. It has also been held that Commercial Cold Storage was hired by the Bank for the purposes of storing the goods there and the goods were under the control of the Bank. In these circumstances it is to be seen whether the goods were damaged due to the negligence and acts of omission or commission of the Bank in the discharge of their duties as bailees. As P.W. 1 has admitted that the goods were in proper and good condition the initial burden is upon the Bank to prove that the Bank had taken due care and discharged their duties as bailees properly. No such evidence has been produced by the Bank. In fact the Bank has relied upon the plea that the goods were in the control of the firm and, therefore, they are not liable for the loss suffered by the firm. From the evidence it seems that the goods were damaged when the cold storage did not function from 14th December, 1976. As the Bank had engaged the cold storage and the goods were in their control it was the duty of the Bank to have seen that proper care of the goods are being taken. Nothing has been produced by the Bank to establish the Commercial Cold Storage stopped functioning due to the reasons beyond the control of the Bank.
23. Mr. Inamul Haque has contended that the Court should take judicial notice of the vageries and inefficiency of the Karachi Electrict Supply Corporation in supplying power and light, Judical notice of such facts cannot be taken which are disputed in nature and require evidence for its proof.
24. Before any advantage of power failure is taken the dates and the duration during which there was power failure should be established. It is further to be proved that the cold storage machinery was working properly and proper temperature was regularly maintained. The Bank could have summoned Commercial Cold Storage to prove through its register the failure of power supply but not an iota of evidence has been produced to show that the Bank has discharged its duties as bailees properly. If a particular person is engaged in a business of cold storage it is his duty to see that it is properly maintained. If electric supply by the Karachi Electric Supply Corporation is irregular and it is so well known that the learned counsel wants me to take a judicial notice of this fact, then it should have been known to the Bank as well as to Commercial Cold Storage. In these circumstances it was the duty of the Bank as well as Commercial Cold Storage to have been more vigilant in the discharge of their duties. In case of power failure Commercial Cold Storage should have made alternate arrangements of power supply so that a proper temperature could be maintained. In the absence of any evidence on record that the Bank had discharged their duties as bailees of the goods, the Bank has failed to discharge the burden. The Bank is therefore liable to compensate the firm for the loss of goods which is admittedly worth Rs, 4,20,000. However, as the firm has paid Court fee on Rs, 2,84,474.13 and not on the entire amount the firm will be entitled to recover only Rs, 2,84,484.13. However, as the firm has given adjustment to the Bank for their claim to the exent of Rs, 1,35,525.87 the firm will be entitled to recover from the Bank a sum of Rs, 1,48,958.26.
25. ' Issue No, 5. -The Bank has claimed Rs, 1,54,812.07 on the basis of the statement of account Exh.
26. 5/23 which reflects the balance of the said amount as in September, 1977. There is no clear evidence on record to show what amounts if any, were charged towards storage charges and insurance premium after December, 1976. P.W. 1 has stated that the pledged goods were destroyed by K. M. C. Authorities in October, 1978. It seems that after the firm was aware of the damage in June, 1977 no steps were taken by it to mitigate the loss. The damaged goods remained stored till they were destroyed. In these circumstances my finding is that the firm has failed to prove that insurance premiums were charged after December, 1 975 and further that the firm is liable to pay storage charges.
9. In Suit No, 696/77 the Bank is entitled to a decree in the sum of Rs, 1,54,812.07. In Suit No, 475/77 the firm is entitled to a decree of Rs, 2,84,484.13. After giving adjustment of Rs, 1,35,525.17, as admitted by the firm, it will be entitled to decree of Rs, 1,48,958.26. However, after giving full adjustment of the decree of Rs, 1,54,812.07 passed in favour of the Bank the firm will be entitled to a decree of Rs, 1,29,672.06. The decree thus passed in favour of the Bank will not be executable.
27. ' The parties to bear their costs.