1989 PLP 3803 (MLD)

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15. Rs.3,30,645.90 = (iii) A letter of undertaking, dated 7th June, 1972. (iv) An indemnity bond, dated, 7th June, 1972. That the plaintiff after having released the goods against the execution of the aforesaid documents reminded the defendants on 2-9-1972 to repay the said amount in accordance with the trust receipts executed in favour of the plaintiff but the defendants failed to pay the same nor replied the notices, dated 27-10-1972 and 25-11-1972. The defendants have disposed of the entire goods without the payment of the suit amount. Hence a sum of Rs.40,28,872.64 is due and payable by the defendants Nos.1 and 2 and defendant No.3 is also equally liable for the release of the goods on a letter of which the authority is disputed whereupon the defendants, jointly and severally are liable to the plaintiff on the basis of the cash credit/original consideration/promissory note/trust receipts/ undertaking and indemnity bond as per documents mentioned above and as per statement of account dated 25-11-1972, which amount or any part thereof the defendants and each of them have failed/neglected/refused to pay in spite of repeated demands and requests made by the plaintiff. Hence the suit with the following prayers. (a) A decree for the amount of Rs.40,28,872.64 against the defendants jointly and severally. (b) Interest at the rate of 9 per cent from 7th June, 1972 till the realization of the amount; (c) Cost of the suit; (d) or alternatively the return of the goods released and held in trust with the defendants Nos.1 and 2, and (e) any other, further, additional relief or reliefs which this Hon'ble Court may deem just and proper in the circumstances of the case.

3. The suit was contested by the defendants Nos. 1 and 2 who have filed separate written statements. It is averred that defendant No.l was an East Pakistan Company incorporated in East Pakistan and carrying on business in the said province and except for defendant No.2 all its directors were and continue to remain in the breakaway State of Bengladesh and are the nationals and citizens of Bengladesh. The registered office of defendant No.l was never transferred to West Pakistan and continues to remain domiciled and operate in Bangladesh. The Eastern Mercantile Bank was incorporated having its registered office at Agrabad, Chittagong and after separation of East Pakistan cannot be called Pakistani national and continues to remain a non-Pakistani Company and from 7-12-1971 is a company incorporated under the law of the State of Bangladesh. Since then the defendant No.l was a customer of Eastern Mercantile Bank Limited Agrabad and Sadarghat branches and never had any account with Eastern Mercantile Bank Limited at Karachi or any other branch. Neither defendant No.l was ever a customer of the said Karachi branch. In 1971 defendant No.l had to his credit in the aforesaid two branches an aggregate sum of Rs.15 lacs in the fixed deposit. In addition, immovable property of defendant No.l worth Rs.25 lacs was also given as security by deposit of original title deeds, thus constituted a tangible security of above Rs.40 leas. Against the said security the aforesaid 2 branches at the request of defendant No.l granted cash credit limit of Rs.40 lacs. Utilizing the said limit the defendant No,l shipping 15 consignments of M. S. rods, M. S. plates and pig iron of the value of Rs.40,28,872.64 from Chittagong to Karachi which were shipped between 10-7-1971 and 10-11-1971 and thereby the cash credit account of defendant No.l was overdrawn to the extent of Rs.40 lacs or less on account of accrual of interest at 7 per cent on fixed deposits. The shipping documents relating to the said consignments were sent by the above two branches to Eastern Mercantile Bank Limited's District Manager at Karachi for, as and when received, being delivered to the defendant No.l. The said District Manager failed to deliver the said documents with the result that the General Manager had to issue instructions contained in his letter, dated 27-11-1971. Following the receipt of the above letter separation of East Pakistan took place. In spite of the fact that the defendant No.l had only paid or otherwise was fully covered in respect of the accommodation granted and the said fact having been only recorded in the above letter the District Manager Karachi insisted on obtaining from the defendant No.l the documents and the 10% margin. They and each of them was bound to give delivery of the shipping documents to the defendant No.l without complying with the said directions given in the normal course. The value of the consignments being over Rs.40 lacs and on account of the mala fide pressure and undue influence the defendant No.2 was made to sign documents referred to in the plaint. A sum of Rs.402,890 was illegally realised and was paid by the defendant No.2 from his own account which is liable to be paid by defendant No.l alongwith interest. As against the said overdraft the aforesaid branches there have appropriated the fixed deposit of Rs.15,12,670.50 together with the interest accrued thereon and have further appropriated the properties i.e. the Lazaf Estate mortgaged in favour of the said branches towards the dues/overdraft of the defendant No.l. By reason of the aforesaid appropriation the liability has already been realised and the dues thus paid. There is no amount payable by the defendant No.l to Eastern Mercantile Bank Limited at Chittagong. In the light of the facts the defendant No.l has denied and replied the averments made in the plaint. He has also made a counter-claim of the amount of Rs.402,830 with interest thereon. The written statement of defendant No.2 is also on the same lines.

4. On the pleadings of the parties the following issues were framed. (1) Whether the claim in suit has been validly and lawfully made by the plaintiffs? (2) Whether the plaint has been signed and/or verified by a person having authority to do so and to file the present suit? (3) Whether the defendant was/is liable to the plaintiff's Karachi Branch or the Chittagong Branch in respect of the amount claimed in suit? (4) Whether the financial accommodation was not given by the Chittagong Branch of the plaintiffs against fixed deposit and mortgage of property. If so, what is the effect? (5) Whether the fixed deposit and the mortgage property have not been appropriated by or available for such appropriation with the said Chittagong Branch against the said financial accommodation liability. If so, what is the effect? (6) Whether the Karachi Branch, in case the amount claimed in the suit is decreed, is not liable to make over the securities valued in 1971 at Rs.56 lacs and the accrued interest. 1f so, will the securities not exceed the amount claimed in suit and are the plaintiffs not liable to repay the refund the excess? (7) Whether any new transaction had taken place with the Karachi Branch. If so, did any liability arise thereunder and to which Branch? (8) Whether the bills for delivery of goods were submitted to the defendants drawn against payment, and if so, has the payment been made to the plaintiffs? (9) Whether the documents, Trust Receipts, promissory note, undertaking, indemnity bond executed by the defendants are void and of no legal effect? (10) What is the effect of the Transfer of Assets and liabilities Act XI of 1974 on the Eastern Mercantile Bank Ltd.? (11) Whether the documents annexed to the plaint were not taken by extortion, coercion and undue influences or were otherwise unauthorized and unwarranted? (12) Whether the margin of Rs.402,890.00 taken by the plaintiffs from the defendants is not liable to be refunded? (13) Whether the defendants, counter-claim is liable to be decreed? (14) What should the decree be?

5. The plaintiff examined Farhat Siddiqui, the Manager of the plaintiff-bank' bank whereas the defendants examined Latif Dawood Fancy. Both the witnesses were examined by mutually appointed Commissioner. The evidence of the parties need not to be reproduced as they have stated the same which has been pleaded by them in their respective pleadings.

6. The mainstay of the plaintiffs case was the pro-note and other documents referred to in the plaint whereas the defendants contended that these documents were obtained by coercion and that the liability of the defendants was discharged in full from the mortgaged security and they have produced letter of Rupali Bank Ltd. dated 24-2-1985 which is reproduced as under: "M/s. Lazaf Commercial Corporation Ltd. 14, Purana Paltan, . P.O.Box No.216, Dhaka 2 BANGLADESHI Dear Sir, Reference visit of your Mr.Hamed Ali we confirm that the amount due by Lazaf Commercial Corporation Limited has been recovered by us in full from the mortgage security comprising of 2.10 acres of land alongwith the building situated at Shahid Saifuddin Khalid (Carnal Khan) Road, within P.S.Kotwali in District of Chittagong. It may be mentioned that this property was declared abandoned property under the P.0.16 of- 1972, of Bangladesh but our charge was duly noted and when we purchased this abandoned property from Ministry of Commerce vide letter No.14(5)/FIN-82/70 dated 17-2-1985 your liability, being a charge on the property was deducted from the purchase price. We paid Taka 39,89,307.33 as further consideration towards the purchase value of the property acquired by the bank. We, therefore, confirm realization of your liabilities in full from your mortgaged property."

7. From the above evidence it is quite clear that the amount due from the defendants has been fully recovered and discharged and that the plaintiff's suit therefore must fail.

8. Since it is the case of the defendants themselves that they have become Bangladeshi national and they have discharged their liability at Bangladesh in respect of the above transaction how it lies in their mouth to claim the amount of Rs.4,02,890 from the National Bank of Pakistan. Hence the counter-claim is also dismissed. The result is that the suit as well as the counter-claim both are dismissed and the issues are answered accordingly. The parties shall bear their own costs. H.B.T./N-174/K Suit dismissed.