' The plaintiff has brought this suit for recovery of Rs,72,172.69 against the defendants on the pleas raised in the plaint which briefly are summarised below:
1. (i) That the defendant concern which formerly was owned by one Mr.Saeed Ahmed, as the sole properietor had contracted to import some scrap rubber from abroad in 1964-65. In that connection he approached the plaintiff bank to open three letters of credit in favour of their foreign sellers in Singapore and United Kingdom. At thc: request thus made, the bank opened the 3 letters of credit. On receipt of the documents relating to the 3 consignements, the plaintiff called upon the defendant to retire the said documents and get the goods cleared from Karachi Harbour but the defendant failed to do so.
(ii) The defendant however, requested the plaintiff to clear the goods agreeing that the goods so cleared shall be stored by the plaintiff and the defendant would be responsible to pay for the monthly godown. Charges. The defendant also represented that he would take the delivery of the goods from time to time after making prior payments and would liquidate the entire advance so created in due course in a short time.
(iii) It is also the case of the plaintiff that at the request of the defendant it advanced a sum of Rs,13,768.08 for the retiring of the documents on 27-4-1964 which was against the imported merchandise and thus a loan account LIM No,294 was opened with the plaintiff bank in the name of the defendant, carrying interest at the rate of 616 per annum with monthly rests. The defendant appointed Messrs Muhammad Amin, Muhammad Siddique as the clearing agents and the charges for clearing the said consignements including customs duty, sales-tax, etc. Were paid by the defendants themselves in this transaction.
(iv) Further loan of. Rs,15,199.84 was advanced to the defendant on 28th July, 1965 against imported merchandise and thus account LIM No,727 in the name of the defendant carrying the same rate of interest was opened. In this account a sum of Rs,15,971.73 was debited on 25-11-1965 as the defendant had requ.Ested the plaintiff to pay the clearing bill which the plaintiff did.
(v) Account LIM No,784 was opened on 8-11-1965 in favour of and at the request of the defendant. In this account loan of Rs,8,351 was advanced on the same terms as stated above. A further sum of Rs,5,000 was debited in this account for customs duty paid in advance by the plaintiff bank on behalf of the defendant of Messrs Pakistan Corporation Ltd. Who were appointed as the clearing agents by the defendant for clearance of the consignments. A further sum of Rs,6,257.10 was also debited in the defendants account as per clearing bill dated 7-1-1966 which included besides customs duty, sales-tax, storage charges for Rs,6,005.
2. The plaintiff has further pleaded that the defendant was able to take delivery of some of the goods only against LIM Account No,294, delivery order of Rs,1,100 was obtained by the defendant on 2nd July, 1964 and the amount was duly credited in the account of the said defendant. In the LIM No,727 three delivery orders were obtained by the defendant on 29- 11-1965, 17th July, 1966 and 14-2-1966 and the amount received against the said delivery orders were duly credited in the account of the party. In the LIM Account No,784 one delivery order for Rs,7,700 was obtained by the defendant on 14-2-1966. The said amount was credited in the defendant's said account.
' Thereafter the defendant did not get the goods released after making payment and liquidating the loan advanced to him. However, in December, 1966 at the request and undertaking of the defendant the goods pertaining to L.I.M. Acounts Nos.294 and 727 were released on trust receipt wherein the defendant undertook to pay the entire amount within 41 days. The defendant however, in spite of the realising the sale proceeds did not pay the outstandings to the bank even though they, had obtained the delivery against trust receipt.
3. The plaintiff has also pleaded that promissory note, dated 20th December, 1966 for the entire outstanding amount of the L.I.M. Accounts then due (Rs,57,356.08) was executed by the defendant and delivered to the plaintiff, promising to pay interest at the rate of 4% above the .State Bank of Pakistan rate with minimum of 9% per annum with monthly rests together with usual banking charges.
4. Correspondence was exchanged between the parties. The defendant though acknowledged his liability was pleading for reduction of godown rent but failed to clear the dues in spite of the demands made. The plaintiff, therefore, sent legal notice, dated 18th October, 1969 calling upon the defendant to clear the dues within 7 days with a warning that in case of failure the pledged goods would be sold away at the defendant's risk and costs and suit would be filed. As no favourable reply was received from the defendant the goods after notice, dated 25th November, 1969 were sold away and a sum of Rs,7,311 was realised on account of such sale which amount was credited to the defendant's account L.I.M. 784 thus leaving shortfall of Rs,72,106.69 recoverable from the defendants in all the 3 L.I.M. Accounts. As the amount remained due and outstanding and the defendant did not come forward to make the payment the present suit was filed by the plaintiff for recovery of Rs,72,172.69 as on 20-7-1970 claiming interest thereon at the rate of 9% per annum from the date of suit till realisation besides costs of the suit.
5. The defendant filed a written statement raising a number of pleas which need not be reproduced herein as the same are reflected in the issues framed in the suit which are reproduced below:- "(1) Whether the suit is barred by limitation ?
(2) What was the rate of Godown charges fixed and agreed between the parties ?
(3) What was the bank rate agreed between the parties ?
(4) Whether the plaintiff was authorised by the defendant to make payment to the Clearing Agents as alleged in para. 6 on the plaint ?
(5) Whether the amount claimed by the plaintiff in respect of various L.I.M. Accounts was exorbitate and excessive ? If so to what effect ?
(6) Whether the plaintiff was legally justified in putting the goods in their custody to auction ?
(7) Whether the plaintiff is entitled to the relief claimed ?"
6. Number of documents (Exhs.5 to 56) produced by the, plaintiff and admitted by the defendant and have been exhibited.
' The plaintiff also examined Syed Noorul Mohibullah Officer Incharge of L.I.M. Department, Foreign Exchange Branch of UBL who corroborated the facts stated in the plaint. The 4 delivery orders, dated 29-11-1965, 17th January, 1966, 20th December, 1966 and 2nd July, 1970 for delivering the goods to the defendant have also been produced and marked as Exhs. 65 to 68. The trust receipt, dated 20th December, 1964 under which the defendant took the delivery in trust undertaking to pay the sale proceeds to the bank has been produced as Exh.69. The promissory note, dated 20th December, 1966 executed and delivered by the defendant to the plaintiff promising to make payment of Rs,57,356.08 has also been produced as Exh.70.
' Notice for sale of the pledged goods given to the defendant has been produced as Exh.32. The plaintiff bank received 9 offers which have been produced as Exh. 71 to 79 out of which the highest bid offered by P.E.Malbari was accepted and the pledged goods were sold to him. The sale proceeds amounting to Rs,7,311 thus realised were credited in the defendant's Account L.I.M. No,784 on 3rd July, 1970.
' The plaintiff has also produced certified copies of statements L.I.M. Accounts Nos. 294, 727 and 784 which have been marked Exhs. Nos. 58, 60 and 64.
' The plaintiff's witness Syed Noorul Muhibullah (Exh.57) was examined on 26-11-1984 but neither the defendant nor his Advocate cross-examined the said witness. The defendant has not produced any evidence in the case. He was called out a number of times on 17-12-1985 as well as 18-12-1985 but neither he nor his Advocate appeared. The evidence was, therefore, closed and arguments of the learned counsel for the plaintiff were heard.
7. The documentary evidence duly supported by the oral evidenc given by Syed. Noorul Mohibullah (P.W:1 Exh.57) which have remained unrebutted conclusively proved that the defendant at the time of th filing of the suit owed Rs,72,172.60 to the plaintiff Bank. The rate of godown charges, bank rate and payments made to the clearing agent debited in the statement of accounts, which have been certified according to law and corroborated by Mr. S. Noorul Mohibullah have remained unchallenged. Except the bare statement made in the written statement and raising the pleas in the issues on which no evidence was led b the defendant, the claims made by the plaintiff cannot be deemed t have been rebutted. The defendant has chosen to remain absent. He neither stepped into the witness-box to give evidence in support o the pleas raised by him nor submitted himself to cross-examination. The 'story set up in the written statement and making the same subject matter of issues No,2 to 5, therefore, in the circumstances has to be totally disbelieved. I accordingly answer issues Nos.2 to 5 against the defendant holding that the rates of godown charges, bank rate and payments made to the clearing agents were duly authorised and as agreed between the parties.
8. As regards issue No,6 the plaintiff in view of the fact that the defendant was not coming forward to clear the outstanding in spite of repeated demands, by legal notice, dated 11-2-1969 (Exh.31) called upon the defendant to pay the sum of Rs,64,204.85 and Rs,5,050.87 outstanding against him in his L.I.M. Account with the plaintiff's branch at MecLeo Road Karachi within seven days. By the said notice the defendant was warned that if he failed to comply with the said notice the plaintiff would sell the defendant's goods pledged with them against oustandings and would recover the shortfall if any, by legal action. As the defendant failed to comply with the plaintiff's demand a fresh notice, dated 18th October, 1969 (Exh.32) was duly served upon the defendant by which the defendant was called upon to pay the sum of Rs,70,597.06 then oustanding against him in his L.I.M.
Account with the plaintiff's McLeod Road Branch, Karachi within 7 days. The defendant was warned that if he failed to comply with the said demand the goods pledged would be sold and the shortfall if any shall be recoverd by legal action. The defendant still remained a defaulter no step to clear the dues, consequently, the pledged goods were put to sale for which offers received has been produced as Exhs. 71 to 79. The plaintiff's witness Syed Noorul Mohibullah has supported above facts in his evidence. He produced nine offers which were received as Exhs. 71 to 79 and deposed that the goods were sold to the highest bidder namely P.E. Malbari and the sale proceeds were credited in the account -of the defendant. He also produced copy of the letter, dated 16th July, 1970 given to the defendant after the sale was made informing him that 123 bundles rubber scrap pledged with the plaintiff bank, had been disposed of for Rs,7,311 and that after crediting the same in his account the defendant still remained liable to pay Rs,72,162.69 to the plaintiff. The defendant was called upon to clear the said oustanding amount.
In view of the above evidence which has remained unrebutte as already noted above I hold that the plaintiff was legally justified I putting the goods in their custody to sale. The issue No,6 is according! Answered in the affirmative.
9. Under issue No,1 the defendant has raised the plea that the suit is barred by limitation. The existence of the loans taken by the defendant stand proved as discussed above. On the record has been produced promissory note, dated 20th December, 1966 which shows that on the said date the defendant acknowledged the liability to pay Rs,57,356.08 and promised to pay the same to the plaintiff with interest at the rate of 4% over the published State Bank of. Pakistan rate with a minimum of 9$S per annum with monthly rests. The plaintiff has also produced copy of the letter, dated 26th December, 1966 written by the defendant in which he gave direction for delivery of some of the items of pledged goods to Messrs Farzand Ali and requested the plaintiff to debit his account undertaking to pay the difference latest by 31st January, 1966. This letter related to L.I.M.
Account No,299. The plaintiff has produced various letters making demands upon the defendant to clear the outstanding dues on the L.I.M. Accounts. In his letter, dated 10th February, 1967 (Exh.52) sent by the defendant to the plaintiff while expressly notifying that he (defendant) was in a position, to clear 25% of his outstanding dues amounting to Rs,13,000 being 25$ of Rs,50,000 the plaintiff was assured by the defendant that theremaining 75% would be cleared by the end of the next week. Reference may also be made here to the legal notice, dated 22-11-1968 (Exh.55) sent by the plaintiff calling upon the defendant to pay Rs,61,684.65 and Rs,6,186.48 outstanding against the defendant in his L.I.M. And overdraft accounts in reply to which the defendant on 27th Novejnber, 1968 (Exh.56) took the plea that the plaintiff had accepted that Rs,5 per ton per month would be charged as storage charges at the time of final settlement. The defendant further stated: "You will appreciate that how we can settle the account unless we have a clear statement of account made on the basis of Rs,5 per ton per month as 'agreed in the above referred letter. We therefore, request you to kindly arrange to send us a detailed statement made on the basis of Rs,5 per ton per month at your earliest so that the same my be settled as early as possible....We however, wish to assure you that we would co-operate with you and we also expect co-operation from you."
' In reply to plaintiff's legal notice, dated 11-2-1969 (Exh.31) and the reminder sent on 18-10-1969 (Exh.32) the defendant on 30th October, 1969 (Exh.33) through his Advocate informed the plaintiff that the defendant, "has always been and is ready and willing to pay you the storage charges at the agreed rate of Rs,5 per ton per month from the date of custody of the goods " The correspondence exchange between the parties and the letter written by the defendant referre to above, show that the defendant in writing acknowledged his liabilit and had made promises/and given assurances to plaintiff that he woul clear the oustanding. The only dispute raised by the defendant was a to the settlement of the rate of storage charges which according to hi was payable at Rs,5 per ton per month.
' The letters referred above in my opinion are sufficien acknowledgement of liability coupled with promises made by the defendan that the debt was due and that the same 'shall be paid by him to the plaintiff. The period of limitation to file the suit was, therefore, extende from time to time. The last acknowledgement of the liability Navin. Been made in the letter on 30th October, 1969 (Exh.33) by the defendan' a fresh period of limitation is to be computed from the said date withi the meaning of section 19 of the Limitation Act on the principles lai down in the cases reported as M.G.
Qadie and Co. v. Abdul Latif PL 1970 Kar. 708 and Government of West Pakistan v. Syed Zainul Abid L D 1977 Kar.
297. It is accordingly held that the suit filed on 28th January, 1971 is within time. Issue No,1 is answered accordingly.
10. On the findings reached as above, under Issue'No,7 it is held that the defendant is liable to pay Rs .72,172.60 with interest at the rate of 9% per annum from the date of suit till realisation with costs of the suit as prayed.
' Before concluding it may be observed that on 8th October, 1984, Mst. Qudrat Begum widow of Saeed Ahmed Khan was dropped from the suit by plaintiff's Advocate. The defendant No,1 concern (Messrs Bombay Frontier Old Tyres Trading Co.) has been described in the plaint as a proprietary concern of Saeed Ahmed Khan. It has been brought on record that during the pendency of the suit the said Saeed Ahmed Khan expired and on an application made under Order XXII. Rule 4,' C.P.C.
(C.M.A. No,4163 of 1981) at ,the request of the plaintff the Court directed that the name of Mr. Aftab Ahmed Saeed son of deceased Saeed Ahmed Khan be substituted as his legal heir. The decree in the circumstances passed as mentioned above, shall be effective only against Aftab Ahmed ,Saeed son of the deceased Saeed Ahmed Khan and his liability under the decree shall be restricted in accordance with and to the extent contemplated by the relevant provisions of the C.P.C.