2005 PLP 1067 (CLD)

SYED SAKHI HUSSAIN BUKHARI, J.

This judgment shall dispose of R.F.As. Nos.195 and 234 of 1995, as both these appeals arise out of the same judgment.

2. Relevant facts for the disposal of these appeals are that Chartered Bank (plaintiff/appellant in appeal No.195 of 1995) brought a suit for recovery of Rs.6,32,370.31 with interest against M.Y. Malik & Company and another (defendants/appellants in Appeal No.234 of 1995) and stated that defendants were granted overdraft and other banking facilities. The plaintiff further stated that with the increase in the business the defendants, asked to extend banking facilities in 1975 and as a security for repayment of loan, the defendants hypothecated their stock in trade present and future consisting of woolen carpets and chemicals vide deed dated 19-8-1975. The plaintiff maintained that defendants pledged their goods etc. with the plaintiff on 20-4-1976 as security for the repayment of the loan or overdraft. They also secured loan by way of deposit of title deeds to different properties with the plaintiff-Bank and executed two memos. of deposit of title deeds. The plaintiff-Bank asked the defendants on 29-12-1979 to pay Rs.3,27,401 and Rs.3,48,836.78. However, on 1-1-1980, the defendants promised to pay Rs.1,25,000 out of their pledged account and lift the goods pledged with the plaintiff-Bank. They deposited Rs.1,25,000 on 30-8-1980 and Rs.6,32,370.31 were outstanding against them but they failed to pay the same, therefore, they were constrained to file suit. The defendants mentioned in written statement that in fact plaintiff-Bank owed Rs.24,93,601.56 to the defendants. They asserted that they had informed the plaintiff-Bank about the loss occasioned to the defendants by the plaintiff-Bank due to removal of sufficient quantity of carpets pledged with the plaintiff-Bank, by tampering with the pledged carpets, causing the replacement of the superior quality and bigger in size carpets by inferior quality and smaller in size carpets and by causing damage to the pledged carpets in not taking proper care in odd whether. The defendants maintained that pledged carpets were lying in the control and custody of the plaintiff-Bank. They stated that 96 carpets pledged with the plaintiff-Bank were not given back to the defendants and they came to know about the same at the time of final delivery of the pledged carpets on 10-9-1980, therefore, they were entitled to get Rs.24,93,601.56 with interest from the plaintiff-Bank. They also claimed Rs.10,00,000 on account of loss of business. On the pleadings of the parties, following issues were framed:-- Issues:-- (1) Is the suit bad for misjoinder of causes of action? OPD (2) Has the suit been instituted by a validly constituted attorney? OPP (3) Is the plaintiff entitled to the suit amount? OPP (4) Are the defendants entitled to any set off and counter-claim on account of the alleged damage, misappropriation and tampering with the pledged goods? OPD (5) Is the claim of set off/counter-claim based on mala fide and frivolous grounds? OPD (6) Whether the defendants are estopped from claiming set off/counter-claim by their own conduct? OPP The parties adduced evidence in support of their respective claims. After hearing the parties learned trial Court decreed the suit brought by appellant-Bank to the extent of Rs.6,32,370.31 with interest and allowed Rs.7,70,589.92 as set off to the defendants vide judgment dated 15-6-1995. Hence these appeals. The plaintiff-Bank has filed appeal only to the extent of Rs.7,70,589.92 awarded to the defendants as set off. However, defendants. Company has prayed for enhancement of amount awarded as set off. So both the parties have challenged the findings of trial Court on Issues Nos. 4 to 6.

3. We have heard the arguments and perused the record.

4. As mentioned above the appellant-Bank had filed a suit for recovery of Rs.6,32,370.31 and the same was decreed with interest whereas respondents-company had claimed set off and learned trial Court had awarded them Rs.7,70,589.92 because their case was that appellant-Bank had not returned the total pledged carpets at the time of final delivery and that other carpets had been replaced and damaged as Bank had not taken proper care of the same. Also that bank received excess amount. The defendants have admitted their liabilities. The case of appellant-Bank is that there was no shortage in the carpets and that the same were not replaced or damaged. However, D.W.1 George Yaqoob stated that pledged goods were delivered vide Exhs.P.25 and 96 pieces of carpets were short and remaining were replaced and damaged. He further stated that Bank failed to take proper care, therefore, their carpets were damaged. He deposed that defendants had paid Rs.2,14,576.92 in excess in pledged account. He also gave detail of loss suffered due to damage and shortage of goods etc. D.W.2 Shahid Latif stated that 2583 carpets were pledged with the bank at different dates but 2357 were released, therefore, 226 carpets were short of the pledged figure. He was present when' Exh.P.25 was prepared at the time of receipt of carpets. He deposed that 226 carpets were damaged or short. The witness explained that 96 were short and other damaged. The godown was' under control of plaintiff-Bank and that defendants had made excess payment of Rs.2,14,

576. The statements of D.W.1 and D.W.2 are convincing and confidence-inspiring. Even otherwise Exh.P.25 shows that carpets delivered to the defendants were damaged. As stated above D.W.1 clearly stated that Rs.2,14,576.92 were paid to plaintiff-Bank in excess. He was not cross-examined on this point. Admittedly pledged goods (carpets) were in the custody of plaintiff-Bank. It is pertinent to note that 93 pieces of carpets were missing from the godown of plaintiff-Bank. The defendant vide letter dated 25-9-1980 (Exh.P.22) demanded Rs.4,56,013 as compensation. The plaintiff admitted in letter, Exh.P.23 about damage caused to pledge goods. P.W. also stated that at the time of delivery of goods, defendants gave note about `damage' on receipt Exh.P.25. The defendants demanded Rs.15,18,390 but learned trial Court allowed only Rs.4,56,

013. It is in evidence that defendants suffered business loss also. The plaintiff-Bank has failed to produce any worthwhile evidence. In these circumstances we find that findings of learned trial Court on Issues Nos.4 to 6 are just and proper. As such learned trial Court had rightly awarded the set off claimed by the defendants. The learned trial Court has decided the suit brought by appellant-Bank after evaluating the entire evidence produced by the parties. There is no illegality or infirmity in the impugned judgment, therefore, there is no justification to set aside the same.

5. The upshot of the above discussion is that these appeals have no force and the same are accordingly dismissed. No order as to costs. S.A.K./C-11/L Appeals dismissed.