1. The first plaintiff is a statutory corporate body, having been established under the National Insurance Corporation Ordinance, 1975 followed by Act XXIII of 1976 and carries on insurance business as provided by the Act. The second plaintiff is a National Airlines. The first defendant is a foreign carrier, the second and third defendants are the agents and the fourth defendant is the local agent of the foreign carriers and carried on business in Pakistan on behalf of the principals. In the year 1982 the second plaintiff imported 104 bales containing white ivory cardboard from Japan to Karachi as per invoice issued by the foreign exporters. The consignment was supplied at Karachi per vessel "BLUE EXPRESS" belonging to the first defendant. The case of the plaintiffs as set out the plaint is that the said consignment was shipped in entirely good order and condition and bore permanent marks and numbers and the packing used was sufficiently strong for the voyage of sea from Japan to Karachi. Before the acceptance of the consignment for shipment the defendants verified the description, quality, quantity, value, weight, marks, numbers and the manner of packing and 'in token of such satisfaction issued their clear bill of lading No. KKA.18 dated 30-4-1982. On 10- 6-1982, while on passage to Colombo and Karachi, the vessel suffered a breakdown of steering gear, but the weather conditions were not good and salvagers were engaged to salvage the vessel under Lloyd's General Form and tow the vessel to Colombo. As a result thereof the ship-owners declared General Average and appointed General Average Adjusters. The General Average Adjusters M/s. Stevens Elmslie and Company required the cargo interest to provide security to the Salvagers and advised the fourth defendant that the cargo cannot be delivered unless both the Salvagers and General Average Adjusters are protected and guarantees are furnished by the cargo owners.
2. It is alleged in the plaint that the cargo was transhipped per S.S. "CHERRY LAJU" which brought the cargo to Karachi. The above consignment was insured with the first plaintiff under their marine cargo insurance policy in the terms and conditions mentioned therein. The consignment asked the first plaintiff to furnish the necessary security for getting the release of the cargo and the first plaintiff furnished such a security but this security was found to be not satisfactory to the Lloyd Agents. For the removal of these objections some time was consumed but the second plaintiff was in a hurry to get delivery of their consignment as heavy amount of demurrage was accumulating for non-clearance of the cargo and therefore on the suggestion of the fourth defendant, they deposited Rs. 95,918.82 instead of b 7550 which was acknowledged by the fourth defendant by their receipt dated 11-12-1982. The second plaintiff deposited a further sum of Rs. 60,992.52, thus making a total of Rs. 1,56,840.74. Thereafter the first plaintiff also furnished the required security and the amount deposited by the second plaintiff became surplus. The case of the plaintiffs is that the said amount was required to be deposited or remitted to M/s. Mackinnon Meckenzie of Pakistan Limited, the local agents as confirmed by the fourth defendant vide telex dated 21-12-1982. On 10-2- 1983, the fourth defendant wrote a letter to second plaintiff confirming that the amount of Rs.
3. 1,56,840.74 received by them is against the salvage security deposited in respect of bill of lading No. KKA-18. The consignment of 104 white Ivory Cardboard arrived at Karachi per S.S. CHERRY LAJU on 19-9-1982 being salvage cargo of M.V. BLUE EXPRESS and no amount of demurrage was involved for this security deposit. Further they guaranteed that if any refund is to be made to the second plaintiff on this account, the same will be made-by the first defendant on behalf of local Lloyd agents. On 10-3-1983 the first defendant wrote to the first plaintiff as under:- "However we undertake to return the balance amount if any which would not be payable to our principals for average adjuster's report".
4. The fourth defendant has also confirmed that Average Adjusters had given their concurrence to accept the salvage security in Pakistan currency against Bill of Lading No. KKA-18 vide letter dated 12-3-1983. It is the case of the plaintiffs that the second defendant had two guarantees instead of one. First cash guarantee was furnished by the second plaintiff and later on first plaintiff also furnished required guarantee and therefore the amount deposited by the second .Plaintiff became surplus.
5. The fourth defendant by their letter dated 9-4-1983 informed the second plaintiff that they had received the amount from the second plaintiff in their capacity as agents of first defendant and unless the settlement of account is made between the first defendant and the owners of m.v: BLUE EXPRESS, they regretted that they will not be able to send cheque to Mackinnon Mackenzie & Company of Pakistan Ltd. And they advised to get the amount of Rs. 1,56,840.74 from the first plaintiff.
6. The case of the plaintiffs is that the first defendant or their local agents arc bound to refund the said amount after proper security was furnished The proper security was furnished by the first plaintiff but they neglected to do so and therefore the second plaintiff filed their claim with the first plaintiff who settled the claim of the second plaintiff by payment of sum of Rs. 1,56,840.75 This was against the usual letter of subrogation. The first plaintiff could file this suit in their name but as a precautionary measure they have impleaded P.I.A.C. As the second plaintiff.
7. It is the case of the plaintiff that they are not concerned with the internal accounts of the owners of the vessel and their agents. The cash security was furnished by the second plaintiff on the suggestions of the defendants and when proper security in the Lloyd Form is furnished by the first plaintiff, the cash security became surplus and must be refunded to the plaintiffs. The defendant has no right to retain the said amount for its private use. Hence the plaintiff filed the above suit for recovery of Rs. 1,56,840.74 with costs and interest at the rate of 15% per annum from the date of institution till realization.
8. The service was held good on defendant No. 4 The defendant No. 4 appeared before the Additional Registrar (O.S.) on 20-2-1984 and at their request four weeks were allowed for filing written statement. Further four weeks were allowed by order dated 20-3-1984. On 9-4-1984 the defendant No. 4 was allowed two weeks more time for filing written statement. Again on 2-5-1985 four weeks time was allowed for filing written statement. On 9-5-1984 yet another two weeks time was extended for filing written statement. The defendant No. 4 was then debarred from filing written statement by order dated 19--1986.
9. The plaint was struck off against defendants Nos. 1 to 3 by order dated 25-4-1988. The plaintiffs filed affidavit of Naseeruddin in ex parte proof. The plaintiffs have placed before me the copy of letter dated 1-11-1983 addressed to second plaintiff, original letter of W.K. Webster and Company dated 24-6-1983 addressed to the first plaintiff alongwith photostat copy of telex dated 23-6-1983, photostat copy of letters dated-9-4-1983 and 12-3-1983 addressed to the second plaintiff. The plaintiffs have also placed before me the original letter of second plaintiff dated 9-7-1983 addressed to the first plaintiff, the first plaintiffs letter dated 21-6-1983 addressed to the second plaintiff. The plaintiffs also placed before me the original letter of Stevens Elmslie and Co. Average Adjusters dated 7-3-1983 addressed to the second plaintiff. The second plaintiffs letter dated 4--4- 1983 addressed to the fourth defendant, photostat copy of telex, original letters dated 15-1-1983, photostat copy of second plaintiffs letter dated December, 1982, original letters dated 14-12-1982, 15-11-1982, photostat copy of State Bank's letter dated 13-10-1982, original letter dated 16-12-1982 of defendants addressed to first plaintiff, original receipt dated 11-12-1982, second plaintiffs original letter dated 9-1-1983, fourth defendant's original letter dated 10-3-1982 addressed to second plaintiff, first plaintiffs letter dated 21-12-1983 and letter of subrogation.
10. The affidavit in ex parte proof and the original receipt and the correspondence exchanged between the parties prove that the second plaintiff furnished a cash security amount to the fourth defendant as the defendants raised objections to the guarantee furnished by the first plaintiff. The first plaintiff removed/satisfied the objections. In this view ' of the matter the defendants received two guarantees from the plaintiffs. The average adjusters Messrs Steven Elmslie & Company, vide their letter instructed the fourth defendant to transfer the salvage deposit to Messrs Mackinnon Mackenzie & Company of Pakistan Ltd. To Lloyd agents for custody but because of a dispute with the ship-owners they refused to release the deposit. The Average Adjusters vide their letter dated 7-3-1983 informed the second plaintiff that the dispute with the ship-owners does not entitle the fourth defendant to appropriate funds paid to them as cash security in a matter unconnected with the ship-owners.
11. The defendant No. 4 are not entitled to appropriate the amount of Rs. 1,56,840.74 as the first plaintiff had already furnished a guarantee. I therefore, hold that the plaintiffs are entitled to a decree for Rs. 1,56,840.74 against the fourth defendant. The plaintiffs are also entitled to costs and interest as claimed.