1. ' This is a suit for cancellation of documents and recovery of Rs,82,000.
2. The plaintiff claims that the defendants Nos.1 and 2 improperly got a letter of guarantee signed from him and also pressurised him to deposit sums totalling Rs,82,000 with them. Cancellation of documents is sought and recovery of Rs,82,000 is prayed for. In defence, the plea of the defendant No,1 bank, the defendant No,2, an officer of the bank, having been already deleted upon demise, is that the plaintiff and the defendant No,3 were responsible, though in certain assumed names, for opening letters of credit whereunder documents were negotiated and received at Karachi but were not retired nor the goods were cleared. As a result of enquiries, it was found that the plaintiff and the defendant No,3 were responsible and as such, admittedly, the plaintiff paid two sums namely, Rs,77,000 and Rs,5,000 totalling Rs,82,000 to the staff attached to the office of Senior Executive Vice- President of the defendant No,1 Bank. The rest of the allegations and claims in the suit are denied.
3. ' In this state of pleadings the suit proceeded on the following issues, which were adopted on 31-5- 1980:- "(1) Did the plaintiff execute guarantee in favour of the Bank under coercion or fraudulent misrepresentation?
(2) Did the plaintiff make payment to the Bank under coercion or fraudulent misrepresentation?
(3) Was any payment made by the plaintiff on behalf of defendant No,3? (suggested by defendant No,3),
(4) To what relief is the plaintiff entitled?"
4. ' In evidence the plaintiff has examined himself and maintained that apart from improper pressurisation and obtaining signatures on the disputed letter of guarantee dated 15-6-1978, cancellation whereof has been sought, the defendant's officers received in the manner aforementioned sums totalling Rs,82,000 from the plaintiff without so much as even issuing a receipt therefor. The defendant No,1 has examined Abdul. Qayyum Khan, Senior Vice-President, Habib Bank Limited, who has stated that letters of credit at the Foreign Exchange Branch of the defendant No,1 were opened on behalf of the firms of Munna Merchants, Deluxe Trading and Peoples' Import Agencies. Documents under the letters of credit were received by the defendant No,1 Bank but were not retired by such three firms. As a result enquiries were made and it was discovered that the documents, Exhs. 6/8, 6/10 and 6/11 were signed by the defendant No3. Exhs.
5. 6/8 is an Invoice, Exhs. 6/10 is a Bill of Exchange and Exh. 6/11 is again an Invoice. The defendant No,3 examined himself and disclaiming liability, has attempted to shift the responsibility for the transactions covered by the letters of credit on the plaintiff. ISSUES NOS.1 and 2.--Issues Nos.1 and 2 I must find against the plaintiff. On evidence it cannot be said that the plaintiff executed the disputed guarantee in favour of the defendant No,1 under coercion or fraudulent misrepresentation or payment was made by the plaintiff under coercion or fraudulent misrepresentation. In fact, the documentary as well as oral evidence does suggest that the plaintiff and the defendant No,3 were responsible for the transactions in respect of which the guarantee was executed by the plaintiff and payment was made totalling Rs,82,000 also by the plaintiff. It would also seem that the plaintiff and the defendant No,3 were concerned with the establishing of the letters of credit and, therefore, payment was rightly claimed and realised from the plaintiff.
6. ' ISSUES NOS.3 and 4--As regards issues Nos.3 and 4 the plaintiff seems to be as much connected with the transaction for which payment was realised as the defendant No,3. Signatures on Exhs.
7. 6/8, 6/10 and 6/11 are clearly those of the defendant No,3 but such defendant maintains that he was collaborating in business with the plaintiff and his son. The plaintiff and the defendant No,3 were, therefore, rightly resorted to by the bank. However, taking issues Nos.3 and 4 together it would appear that the officers of the defendant No,1 did not act with any degree of propriety after having collected the payment of Rs,82,000 from the plaintiff. It was expected that proper receipts would have been passed on by the defendant No,1 to the plaintiff on collection of payments from him.
8. Next and that is more important upon receipt of payments the plaintiff should have been allowed by the defendant No,1 bank to retire to documents in the context of which the payments were collected. If the plaintiff was not inclined to collect the documents, for which no evidence has been led, the defendant No,1 Bank should have addressed due letter(s) indicating refusal or avoidance of the plaintiff. None of this was done or claimed to have been done. It is not known what happened to the goods for which the letters of credit were established. Obviously such goods could not be cleared without the documents having been first released by the defendant No,1. The defendant No,1 is a responsible banking company and is expected to act with adequate care and caution.
9. None of officers was competent to appropriate the money(s) without crediting it in the account of the defendant No,1. The defendant No,1 seems to have condoned that conduct. Even so, the corresponding obligation of crediting the account with the amount has not been shown to be discharged. Nor, as said, the plaintiff or the defendant No,3 were allowed to collect the documents for obtaining the goods which could have been got released only on c the basis of such documents. The defendant No,1, therefore, has failed to discharge its commercial and public duties.
10. Accordingly and on these issues, finding must arise against the defendant No,1. Learned counsel for the defendant Nol, in this situation, contended that there was no such issue on the question. Such issue is inherent in these proceedings and is essentially covered both by issue No,3 and issue No,4, as plea of defendant No,1 was that neither documents were retired nor the goods were got released.
11. ' Accordingly while plaintiffs prayer for cancellation the guarantee is disallowed relief for recovery of Rs,82,(X)0 is granted to the plaintiff against the defendant No,1.