1. ' Plaintiff Muslim Commercial Bank has filed this suit against defendant Anwar Rehmani for recovery of Rs,12,35,264.95. According to the plaint the defendant being proprietor of two firms, namely, M/s. Galaxy International and M/s Continental Trade Enterprises, was doing business in the names of said firms. While doing so the defendant was maintaining his account at Muslim Commercial Bank, Merewether Road Branch Karachi and Muslim Commercial Bank Ltd. Frere Road Branch, Karachi. The plaintiff claimed to have granted over-draft facility to the tune of Rs,5 lacs to the defendant on 9-9-1994 and the defendant utilized such facility in full as further stated in the plaint. The amount of the over-draft was repayable with interest at the rate of 3% per annum above Bank rate minimum rate being 12% per annum with quarterly rest. In consideration of the over-draft facility the defendant is said to have executed a promissory note in favour of the plaintiff. Besides this the defendant hypothecated his goods supposed to be lying in a godown, with the plaintiff as additional security, but this was all on paper as no goods were stored in the godown, as alleged. For having granted over-draft facility to the defendant on 9-9-1974 the plaintiff claimed Rs,5,31,677.95 from him. It was further stated in the plaint, that the defendant was also maintaining an account in name of M/s Galaxy International in Frere Road Branch, Karachi, of plaintiff bank and in that account he was granted commercial loan facility to the extent of Rs,3,25,000, which facility was utilized by the defendant in full. The amount of the commercial loan was repayable with interest at the rate of 3% above bank rate with minimum 12% per annum with quarterly rest. In consideration of obtaining commercial loan, the defendant executed a Promissory Note and a Delivery Note in favour of the plaintiff Bank, and delivered the same to the Bank but the same went in possession of Police due to a criminal case having been registered. As an additional security, the defendant pledeged with the plaintiff under a deed 149 drums said to be containing chemical but on actual inspection they were found to be containing sand. The defendant also hypothecated in favour of plaintiff Bank a stock of papers supposed to be lying in a godown at G.
2. Allana Road, Karachi and executed such Agreement of Hypothecation in favour of the plaintiff. But during an inspection it was found that no such stock of papers was lying over there. In respect of the commercial loan of Rs,3,25,000 and the over-draft facility to the tune of Rs,3,25,000 obtained by the defendant from the plaintiff Bank, the latter claimed from the former Rs,3,38,900 and Rs,3,64,687 respectively. In this way a total amount of Rs,12,35,264.95 Ps was claimed, in the suit, from the defendant.
3. ' The suit was contested by the defendant, who in his written statement denied doing business in the name and style of M./s Galaxy International or maintaining any account with Frere Road Branch of plaintiff bank in his name or in name of M/s Galaxy International. Defendant admitted that he was maintaining account in Merewether Road Branch Karachi of the plaintiff bank, in name of M/s Continental Trade Enterprises and that he was granted the loan/over-draft facility to the tune of Rs,5 lacs against hypothecation of stock of goods and the said amount was repayable with interest as shown in the plaint. The defendant reiterated that he was granted the loan/over-draft facility against hypothecation of his stock of goods the existence of which was properly verified by the plaintiff Bank, by way of spot inspection etc. Plaintiff bank was said to be receiving from time to time stock reports about the hypothecated goods and in the stock reports location of the godown was shown at Mewa Shah Road. Said goods were said to be insured with Eastern Federal Union Insurance Company Limited for Rs, ten lacs. Before being stored in the godwon at Mewa Shah Road the pledged goods were lying in godown of the defendant in Edulji Dinshaw Compound at G. Allana Road, Karachi, as further stated. The defendant challenged maintainability of the suit and took exception to joining of different causes of action in one suit.
4. ' On pleadings of parties, this Court adopted certain issues on 13-5-1978. However, on 21-2-1990 said issues were struck off and in their place following issues were framed:- "(1) Whether the suit is not maintainable and is bad for misjoinder of causes of action?
(2) Whether the plaintiff had properly verified existence of the goods in godown of the defendant in Edulji Dinshaw Compound, G. Allana Road, Karachi before acceptance of their hypothecation and permitted shifting of those goods to defendant's godown at Mewa Shah Road, Jahanabad, Karachi?
(3) Whether this suit could not have been filed without cancellation of the agreement of hypothecation?
(4) Whether the defendant maintained his account with Frere Road Branch, Karachi of plaintiff Bank in name of his firm M/s Galaxy International.
(5) Whether the defendant was granted by the plaintiff a commercial loan of Rs,3,25,000 repayable on or before 25-12-1974 with interest at 3% above bank rate with minimum 12%?
(6) Whether the defendant also obtained from the plaintiff over draft facility to the tune of Rs,3,25,000 in his account with Frere Road Branch of the plaintiff Bank and utilized the facility in full on the understanding that he was to pay to the plaintiff on said amount interest at the rate of 3% above bank rate with minimum 12% per annum with quarterly rests?
(7) Whether the defendant executed the documents as mentioned in paras 13, 14, 15 of the plaint?
(8) Whether the defendant is liable to pay to the plaintiff Rs,7,03,587 on account of having taken loan/over draft of Rs, five lacs from the plaintiff On 9-9-1974?
(9) Whether the defendant is also liable to pay to the plaintiff Rs,3,38,900 . If issue No,5 is proved?
(10) Whether the defendant is further liable to pay to the plaintiff Rs,3,64,687 if issue No, 6 is proved?
(11) What should the decree be?"
5. ' On 9-9-1992, learned counsel for the defendants Nos.1 to 3 made statement in Court that out of the issues framed on 21-2-1990 he was not pressing issues Nos.1, 2 and 3. Said issues were therefore dropped as not pressed, under an order passed by a learned Single Judge of this Court on 9-9- 1992.
6. ' The plaintiff bank led evidence by examining P.Ws. Muhammad Baqar (Exh.5), Yousuf Ismail (Exh.6) and Umar Saleem (Exh. 7). The defendant did not lead any evidence and his counsel gave such statement on 19-5-1992.
7. ' After closing of evidence, I have heard Mr. Rizwan Ahmad Siddiqui, Advocate for the plaintiff and Mr. M.A. Baig holding brief for Mr. Syed Sami Ahmad, Advocate for the defendants. Both the learned counsel had earlier filed written arguments.
8. ' My findings to above issues follow, with reasons: ISSUE NO. 4: P.W. Umar Saleem (Exh.3), who was Manager, Frere Road Branch of plaintiff Bank in the beginning of 1974 deposed that he was familior with the account of M/s Galxy International. He added that M/s Galaxy International was the sole proprietorship of Anwaruddin. P.W. Umar Saleem was shown the statement of Accounts Exh.3/1 in respect of M/s Galaxy International and he admitted his signature over the same. He added that M/s Galaxy International was granted advance by Frer Road Branch of the plaintiff bank in two heads for a total amount of Rs,6,50,000.
9. That M/s Galaxy International utilized the whole limit of advance. That M/s Galaxy International was asked to return the amount but it failed to do so. That a complaint was lodged with FIA regarding M/s Galaxy International. The copy Exh.3/1 of the statement of Account shows that M/s Galaxy.
10. International was account holder of Muslim Commercial Bank Ltd. Frere Road Branch, Karachi with Current Account No, 732. P.W. Umar Saleem added that he had met in his Office Anwaruddin as Proprietor of M/s Galaxy International. In his cross-examination. Umar Saleem said that he did not know in his personal capacity Anwardin. That he always met him in his official capacity. It is interesting to note that this suit is filed in name of Anwar Rehmani and not Anwaruddin. There is nothing to show if the defendant is also named as Anwaruddin. In his entire evidence Umar Saleem Exh.3 did not state if the account of M/s Galaxy A International was operated by Anwar Din or by defendant Anwar Rehmani. I, therefore, hold that an Account in the name of M/s Galaxy International was maintained in Frere Road Branch of plaintiff Bank, but it is not established on record if said account was operated by the defendant. This issues is found accordingly.
11. ISSUES NOS. 5 & .6: There is evidence given by P.W. Umar Saleem Exh.3 to the effect that M/s Galaxy International with Current Account No, 732 was given advance in two separate heads for a total amount of Rs,6,50,000 and that said amount was utilized by the borrower. At the same time Umar Saleem named one Anwaruddin and not defendant Anwar Rehmani to be sole proprietor of M/s Galaxy International. Hence present defendant is not liable for such advances and issues Nos. 5 and 6 are found against the plaintiff.
12. ISSUE NO.7: According to para 13 of the plaint, the defendant executed Pronote and Delivery Note in respect of the commercial loan of Rs,3,25,000 obtained from Frere Road Branch of the plaintiff Bank.
13. According to para 14 of the plaint, the defendant executed a Deed of pledge in respect of 149 drums supposed to contain chemicals, pledged in favour of the plaintiff Bank. According to para. 15 of the plaint, the defendant executed an Agreement of Hypothecation in favour of plaintiff Bank.
14. None of the said documents was produced in evidence. All these documents were said to have been seized by FIA under a Seizure Memo, Copy Exh.6/29, dated 27-5-1975. It was plaintiff Bank which had lodged complaint copy Exh.6/30 with FIR as stated by P.W. Yousuf Ismail Exh.6 who produced said Memo Exh.6/29 as well as copy Exh.6/30 . This complaint copy Exh. 6/30 was besides the FIR Copy Exh. 5/1 lodged by the Manager Frere Road Branch of plaintiff Bank. In view of said documents having not been produced in evidence, for whatever reasons, issue No,7 is to be replied in the negative.
15. ISSUE NO. 8: P.W. Yousuf Ismail Exh.6 deposed that he was Accountant in Merewether Road Branch of plaintiff Bank from September, 1974 till April, 1975 and was conversant with the account maintained in said Branch by M/s. Continental Trade Enterprises owned by defendant Anwar Rehmani. Yousuf Ismail further stated that facility of over-draft of Rs,5,00,000 was allowed to Anwar Rehmani in September, 1974 and he utilized said amount through various cheques. He produced the cheques Exh.6/1 to Exh. 6/23. He also produced certified copy Exh. 6/28 of the Statement of Accounts. Yousuf Ismail further produced debit vouchers Exhs.6/24 to 8/27. In his written statement defendant Anwar Rehmani admitted maintaining Account No, 277 since 23-10-1973 with Merwether Brach of the plaintiff Bank at Karachi, in name of M/s Continental Trade Enterprises. He admitted that said account was granted over-draft/loan facility to tune of Rupees five lass. Defendant did not claim in his written statement if he had paid any amount to the plaintiff Bank towards payment of the amount of over-draft. Hence argument of learned counsel for the defendant that twelve cheques Exh.6/2, Exh.6/5, Exh.6/7, Exh. 6/10 to Exh.6/13, Exh.6/15, Exh.6/17 and Exh.6/21 to Exh.6/23 issued in name of the plaintiff covered the amount to be treated as repayment of over-draft amount by the plaintiff to the defendant, is without any substance. Hence the amount of said cheques cannot be deducted from the amount payable by the defendant to the plaintiff. In absence of the evidence in rebuttal, is to be held that the defendant is required to pay to the plaintiff Rs,5,31,677.95 as mentioned in the Accounts Statement Exh.6/28.
16. ISSUE NO. 9: In view of negative finding on issue No,5 this issue is also found in the negative.
17. ISSUE NO. 10: In view of negative finding on issue No,6 this issue is also found in the negative.
18. ISSUE NO 11: As a result of my finding on issue No,8, I decree the suit of the plaintiff against the defendant for recovery of Rs,5,31,677.95 Ps with D interest on said amount at the rate of Rs,12% per annum from 9-9-1974 till the date of recovery with proportionate costs.