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Petitioner: BANK OF AMERICA VS Respondent: PAK REPTILE EXPORT CO. Ltd.Honorable Justice Syed Abdur RehmanIsmail Merchant,Nemo
1988 M L D 1291
1988 M L D 1291
[Karachi]
Before Syed Abdur Rehman, J
BANK OF AMERICA‑‑Plaintiff
versus
PAK REPTILE EXPORT CO. Ltd. and 4 others‑‑Defendants
Suit No.273 of 1973 decided on 26th October, 1987.
Civil Procedure Code (V of 1908)‑‑--
-‑‑‑O.XXXVII, R.2‑‑Suit for recovery‑‑Bank extended to defendants overdraft facilities, cash credit facilities and advance loan facilities in consideration whereof defendants, from time to time, signed, executed and delivered to Bank, agreements for overdraft facilities, agreement of hypothecation of goods and pronotes and continuing guarantees‑‑Defendant' unconditionally admitted their liabilities and promised to repay entire amount due‑‑Plaint verified on solemn affirmation and accompanied by true photo copies of all documents which had not been challenged or rebutted by defendants‑‑Decree for part of claim had already been passed in favour of Bank‑‑Bank's suit for remaining amount decreed with interest.
Ismail Merchant for Plaintiff.
Nemo for Defendants.
Date of hearing: 26th October, 1987.
JUDGMENT
The Plaintiff Bank of America, National Trust & Savings Association Karachi, has tiled this suit against the defendants for recovery of Rs.88,957.60. The case of the plaintiff is that in 1964 the plaintiffs at the request of the defendants have been extending to the defendant No.1 overdraft facilities, cash credit facilities and advance loan facilities, in consideration whereof the defendants from time to time signed and executed and delivered to the plaintiffs, inter alia, agreements for overdraft facility; agreement of hypothecation of goods, and pronotes and defendants Nos.2, 3 and 4 signed and executed continuing guarantees in favour of the plaintiffs from time to time. The defendant No.1 repaid a part of the amount in April, 1971 and there was a balance of Rs.82,400 which was due and payable by the defendants to the plaintiffs. Again from October, 1971 to May, 1972 the Plaintiffs at the request of the defendants advanced further sum of money to defendant No.1 in similar manner. On 14‑4‑1973 the defendant No.1 by a letter unconditionally admitted their liabilities and promised to repay the entire amount due and executed and delivered to the plaintiffs a pronote for Rs.83,428.18. The balance of Rs.88,957.60 is due to the plaintiffs from defendants Nos.1 to 4, who are jointly and severally liable for the same.
The defendants Nos.1 to 4 filed a joint written statement wherein they have contested the plaintiffs, claim and have filed a counter claim of Rs.2,05,000. On the pleadings of the parties following issues were framed.
(1) Whether the plaintiffs advanced loan to the defendant No.1 on the request of the defendants inter olio, on the security of the agreement for hypothecation and guarantees executed by defendants Nos.2, 3 and 4 in favour of the plaintiffs and what amount is presently outstanding, due and payable by the defendants to the Plaintiffs?
(2) Whether the defendant No.1 pledged 20,000 pieces of lizard skins with the plaintiffs as security, if so what was the value of the lizard skins?
(3) Whether the defendant No.1 contracted to export the said lizard skins from Pakistan in August, 1973 and at what price?
(4) Whether the export of lizard skins from Pakistan was banned by the y Government of Pakistan and whether this ban was vacated in August,1971. If so, what is the effect?
(5) What loss if any has been caused to the defendant as a result of failure to export 20,000 pieces of lizard skins on account of there being a shortage?
(6) What was the shortage if any in the number of lizard skins which were pledged with the plaintiffs and kept in the custody of the defendant No.5?
(7) Whether the counter‑claim of defendant No.1 is misconceived and not maintainable in this Suit?
(8) To what amount, if any, is defendant No.1 entitled against the plaintiffs under the Counterclaim?
(9) To what amount are the plaintiffs entitled against defendants Nos.l to 4.
(10) In the event of the claim of defendant No.1 being decreed against the. plaintiffs, whether the plaintiff is entitled to a decree against defendant No.5 and for what amount?
(11) Whether the plaintiffs are responsible or liable to defendant No.1 for the > shortage and/or loss of the lizard skins pledged by the defendant No.1 with the plaintiff and kept in the custody of defendant No.5?
(12) What should the decree be?
The case is fixed for evidence today. Plaintiff's advocate is present, Defendants Nos.1 to 4 are absent. Their advocate Mr. Ali Raza has died. Hence direct notices were issued to defendants Nos.1 to 4 but they have chosen to remain absent in spite of service.
The plaint is verified on solemn affirmation. It is accompanied by true photo copies of all the documents filed with the plaint. The said evidence of the fore plaintiffs has gone unchallenged and unrebutted. Before this a decree Rs.55,000 was passed in favour of plaintiffs on admission.
I, therefore, decree the plaintiffs' suit for the remaining Rs.33,957.60 with costs and interest at 10% per annum from the date of the institution of the suit till the recovery of the amount against the defendants Nos.1 to 4 jointly and severally. No relief is sought against the defendant No.5, hence no decree is passed against him. The set off claimed by the defendants Nos.1 to 4 is disallowed. .
M.Y.H/B‑69/K Suit decreed.