' This is a suit filed for recovery of Rs, 47,250. Briefly the case of the plaintiff is that during November, 1971, they had imported a consignment of 1350 cases of safety matches from East Pakistan and the freight in respect of the carriage of this consignment had been paid in East Pakistan to the defendant company, on whose ship so."MAKBOOL BAKSH" the consignment came to Karachi.
According to the plaintiff, the original bill-of-lading was not received by them from East Pakistan on account of the extremely serious law and order situation in East Pakistan during November, 1971 and the defendant company refused to deliver the consignment to the plaintiff without production of the original bill of lading and as such under protest the plaintiff paid the freight amounting to Rs, 47,250 and also executed an indemnity bond, after which the consignment was delivered to the plaintiff. The case of the plaintiff is that the freight had, been prepaid and the defendant company was not entitled to demand freight again and the amount of Rs, 47,250 which was paid to the defendant company in Karachi under protest, is liable to be refunded to the plaintiff. The claim was contested by the defendant company, who filed a written statement. The following consent issues suggested by the learned counsel for the parties were adopted on 29-3-1974:-
(1) Whether. The freight was paid at the time of shipment by the plaintiffs, if so, what amount?
(2) Whether the defendant's refusal to produce the master copy of the bill of lading brought by the defendants ship was intentional and in order to get benefit out of the situation as arose at the of invasion of East Pakistan?
(3) Whether the defendants are liable to refund the amount of freight received by them at Karachi?
(4) What should be the order and decree?
2. On behalf of the plaintiffs, two witnesses were examined, namely P.W.1 Noor Muhammad (Exhibit 5), who is manager of the plaintiff company, and P.W.2 Muhammad Haroon (Exhibit 15), who was an employee of Dada Match Works, the shippers in Khulna, East Pakistan for about 11 years from November/December, 1970 to February/March, 1972. On behalf of the Defendants, D.W.1 Waiihuddin, an employee of the defendant company, appeared as their solitary witness. I have heard the arguments of Mr. Aziz Urfi, learned counsel for the plaintiffs and Mr. Iqbal Siddiqui, learned counsel for the defendants.
3. The only question involved in the present case is, whether freight in respect of the consignment in question was prepaid or was to be paid by the plaintiff on the arrival of the consignment at Karachi before its delivery was taken from the shipping company. The evidence of P.W.1 Noor Muhammad, Manager of the plaintiff company, is that the freight had been prepaid. He had produced a copy of the invoice, dated 18-11-1971 of the shippers Dada Match Works (Exhibit 7) which shows that the consignment had been purchased by them on C & F basis. He had also produced Exhibit 8, a non- negotiable copy of the bill of lading, dated 17-11-1971, which has endorsement to the effect that freight had been prepaid by cheque. The plaintiff's witness had stated that the plaintiff did not receive original bill of lading from the exporter, though it was posted by them from East Pakistan and on account of the invasion of East Pakistan by the Indian force on or about 23-11-1971 the plaintiff's contact with the exporter was cut off and as such bill-of-lading, though posted, did not reach them. He further stated that after the filing of the suit they received a non-negotiable copy of the bill-of-lading, which shows that the freight had been prepaid and which was produced by him as Exhibit 8. He also produced copy of the notice given by the plaintiffs' Advocate to the defendants' Advocate under Order XII: Rule 8, C.P.C. As Exh.
14. This notice required the defendants to show to the Court on the dates of hearing all the documents in possession of the defendants *in relation to the matters in question in the present suit particularly the master copy of the bill of lading.
' P.W.2, Muhammad Haroon (Exh. 15) has given evidence that at the relevant time he was working in Dada Match Works, the shippers, as a cashier and that Dada Match Works used to send their goods to the plaintiffs company at Karachi. He then deposed that the consignment in question was sent by Dada Match Works to Bhabha Limited, Karachi, prior to 1971 War. He then stated as follows:- "Bill of lading was typed in our office and then I took the bill of lading to the office of the defendants shipping company located in Nuttanpara and got it stamped as freight prepaid. I then came back and gave the bill of lading to our Manager. There were three originals of the bill of lading and five copies. On the five copies the word "non-negotiable" was written. I do not know what is meant by non-negotiable. I am shown Exh.
8. This is one of the copies of the bill of lading which was brought by me to the office of Dada Match Works after it was,got stamped by the defendant company. The freight for the consignment was paid by me through cheque to defendant company."
' A suggestion was put in the cross-examination of this witness that he was giving false evidence to assist the plaintiff in the case. The suggestion was denied by the witness.
' On behalf of the defendants, D.W.1 Wajihuddin, an employee of defendant company, who had joined their services in 1961, gave evidence. During the relevant period he was working as Assistant in the Claim Department of the defendant company. In reply to the question as to whether the freight used to be paid to the defendant company in respect of the consignments booked from East Pakistan to Karachi in those days, he replied that sometime freight used to be paid in East Pakistan but in respect of the company having big office situated in Karachi the payment would be made in respect of the freight in Karachi in the office of defendant company. In answer to another question in the examination-in-chief as to whether the freight was paid for the consignment in the suit, he replied as follows:- "In respect of this consignment, the original bill-of-lading was not produced and it was not clear whether freight had been paid or not at Chittagong and therefore, at the time of giving the delivery order by our company, freight was taken from the consignment."
4. The case of the plaintiff is that the freight had been prepaid and they were forced to pay the freight again. The case of the defendant, ' however, as is apparent from the evidence of their witness, is that the defendants were not aware as to whether freight had been prepaid or not and as the original bill-of-lading was not produced by the plaintiff, the defendant-company insisted that freight be paid. Mr. Iqbal Siddiqui, learned counsel for the defendants, is correct in submitting that in this case the burden of proving that the freight had been prepaid is on the plaintiff company. The original bill of lading has not been produced. However, Exh. 8 is a copy of the bill of lading that has been produced. In the arguments addressed before me. Mr. Iqbal Siddiqui, learned counsel for the defendant company, challenged the genuineness of this copy and also contended that this copy was not admissible in evidence. It was argued that this copy had not been proved, that it had not been received during the normal course of the business by plaintiff company and that it does not bear any signatures of the defendant company.
In view of the abnormal conditions prevailing in East Pakistan during the end of the fateful year of 1971, the explanation given by P.W.1, Manager of the plaintiff company that the original documents, through posted, did not reach the defendant, is accepted. On account of the war-like conditions prevailing in that area it is reasonable to presume that postal communications between the two wings of Pakistan during those days were more or less not existing. Exh. 8 is non-negotiable copy of the bill of lading in respect of the consignment in question. It was produced by P.W.1. No objection was taken at the time it was produced. Then there is no cross-examination at all on the authenticity of this copy or that any endorsement on this copy has been unauthorized put, that is, the endorsement about the freight having been prepaid by cheque had been stamped later on without authority. It may further be observed that even in the examination of D.W.1 Wajihuddin, representative of the defendant company and solitary witness on their behalf, also no attack has been made on the authenticity of this copy of the bill of lading. In fact at one place in his cross- examination he states as follows:- "Exh. 8 shows that two bills of lading had been prepared."
' This answer also shows that the authenticity of Exh. 8 and the various entries made therein including the endorsement that freight had been prepaid were not doubted. At least one copy of the bill of lading must be in possession of the defendant company or their agents but no such copy was produced to show that the entries made in Exh. 8 at least to the effect that the freight had been prepaid by the cheque are unauthorized. There is evidence of D.W.1 Wajihuddin that the office of their agents in Chittagong had been looted by the "Mukti Bahenis" and their Manager had been killed but the witness was not able to answer the question about the month in which such action had been taken by Mukti Bahenis in respect of their agents' office.
' It was also argued by Mr. Iqbal Siddiqui, learned counsel for the defendants, that when copy of the invoice, dated 18-11-1971 could be received by the plaintiff at Karachi from East Pakistan, the presumption could be that they had also received the original documents including the original bill of lading and if the original documents had been produced it would have shown that freight had not been repaid. In the facts of this case and on the state of evidence on record, I am unable to accept this contention of the learned counsel for the defendants. Explanation has already been given about the non-receipt of the original documents and has been accepted. Reference has already been made about the abnormal conditions prevailing in East Pakistan at that time. Neither the plaintiff has been able to' produce original documents nor the defendant company has been able to produce any documents in respect of this consignment and this is so on account of the abnormal conditions in East Pakistan at the time and due to lack of communications between the two wings of the country.
In my view, the secondary evidence of the bill of lading through Exh. 8, a non-negotiable copy, is admissible and reliance could be aced by the plaintiff on the contents of Exh.
8. Exh. 8 shows tha right had been prepaid. The case of the plaintiff' that the freight ad been prepaid is also supported by' the oral evidence of P.W.1, manager of the plaintiff company and P.W.2, an ex-employee of the hippers. On the other hand, the evidence of the defendants' solitary witness was that the defendant company was not aware whether the eight had or had not been prepaid. On the basis of the evidence on record, the plaintiffs have established their case that the freight had prepaid and they had been forced to pay the freight again. The plaintiffs are liable to refund of the amount. Accordingly, issues No, 1 d 3 are decided in affirmative and issue No, 2 in the negative.
6. Suit No, 77 of 1973 is decreed in favour of the plaintiffs and as against the defendants in the sum of Rs, 47,250. In case this amount is not paid within one month from today, the defendants shall also be liable to pay interest on this amount at the rate of 14 per cent per annum from the date of this judgment till realization.
' There will be no order as to costs.