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Suit No. 45 of 1974. decided on 25th September 1975.

- S. 103-Civil suit-Burden of proof-Contention that defendants' -signature on documents of loan being obtained on blank papers suit not liable to be decreed-Defendants admitting their liability to pay loan, executing pronote and pledging goods with plain tiff-Bank-Burden of proof-Very heavy on defendants to prove documents duly signed as having been delivered to plaintiff in blank Defendants' allegation of some such documents having been signed and delivered in 1966 belied by such documents bearing special adhesive stamp dated 6-8-1971-Contention repelled.-[Burden of proof].

0. VIII, r. 6-Civil suit-Counter claim, absence of-Effect-Con tention in defence that pledged goods rusted and depreciated in value due to plaintiff's negligence-No consequential relief claimed=Held, contention even if true, no counter-claim having been made, issue in consequential.

Mansoor Ahmed Khan for Plaintiffs.

Z. P. Naqvi for Defendants Nos. 1, 2 and 4.

Defendant No. 3 (absent).

Date of hearing : 16th September 1976.

This is a 'Bank's suit for recovery of Rs. 44,432 83 against its customer the defendant No. 1 firm of which the defendants Nos. 2 to 4 are its partners. The Bank's case shortly stated is that on or about 11-1-1966 the plaintiff allowed the defendant No. 1 over-draft in its account within the limit of Rs. 10,000 which was on or about 16th February, 1966 enhanced to Rs. 20,000. That the defendant No. 1 between 26th May, 1966 and 30th November, 1971 paid from time to time a total sum of Rs. 19,346, and that as on 31-12-1971 the sum due and payable by the defendant No. 1 to the plaintiff was Rs. 31,313.03 in acknowledgement of which the defendant No. 1 delivered to the plaintiff a promissory note dated 31-12-1971. It is further alleged in the plaint that by way of security for the repayment of the overdraft or any balance which may be found due and payable by defendant No. 1, the defendants have hypothecated their stock and earmarked a room in their factory and lodged therein certain goods on which room a lock was placed by the plaintiff and the defendant. The two prayers in the plaint are for money decree for a sum of Rs. 44,432.83 being the sum due as on the date of the suit with interest at 12 % per annum with monthly rests and for an order that the pledged goods stored under the joint lock and key of the plaintiff and the defendant in the godown of the defendant No. 1 be delivered to the Naair of this Court and the gale proceeds paid to the plaintiff for adjustment against the decretal amount.

2. The defence is that the overdraft facility extended to defendant No. 1 did not exceed the original limit of Rs. 10,000 and that the defendants had not acknowledged any liability as on 31-12-1971 more particularly it is alleged that the plaintiff bad obtained the signature of the defendants on blank forms as and when asked by the plaintiff and the plaintiff subsequently completed such forms behind the back of the defendants according to their own liking. The defendants admit that by way of repayment of Rs 19,346 was paid between 26-5-1966 and 30-11-1971 but it is alleged that some more amounts were paid. In the written statement there is an admission that the defendants had pledged their goods with the plaintiff and stocked them in one of the rooms of the factory of the defendants but it is denied that this room was under the joint lock of the parties. The allegation is that the goods so pledged were exclusively under the lock of the plaintiff and the grievance made is that the plaintiff allowed these pledged goods to deteriorate in value and-did not accede to the defendant's reasonable request to put them into proper order or to sell them with the intent that the sale proceeds will be deposited in discharge of the defendants' liability.

3. The oral evidence in this case consists of the Bank's Officer and the defendant No. 2:

4. The issues in this case read as follows :-

(1) Whether the charge forms signed by the defendants were blank and were signed at the time of grant of O/D in 1966

(2) Whether the defendants signed any charge form or documents sub sequent to 1966

(3) Whether the pledged goods have been rusted and depreciated in value due to negligence of the plaintiffs If so, to what extent

(4) Whether the defendants requested the plaintiffs to sell the pledged goods, if so when What was the effect of the said request

(5) What should the decree. be

5. Issues Nos. 1 and 2.-These issues may be conveniently combined together. The defendants admit their signature on four documents relied upon by the plaintiffs, namely, the Bank's duplicate letter dated 31-12-1971, Exh. 5/6 in which the defendants acknowledged the liability of Rs. 31,313.03, the promissory note dated 31-12-1971, Exh. 5/1, the letter forwarding the promissory note Exh. 5/3 and the pledge document of the same date. In all these documents the defendants have acknowledged their liability to pay the sum of Rs. 31,313.03. The promissory note additionally states that the interest payable will be 5 % above the Bank rate subject to a minimum of 10 % per annum with monthly rests. The pledge document Exh. 5/2 and the letter forwarding the promissory note Exb. 5/3 additionally bear special adhesive stamp of the Stamp Officer dated 6th of August, 1971. The burden therefore, was very heavy on the defendants to prove that these documents duly signed bad been delivered by them to the plaintiff in blank allegedly in the year 1966. In the face of these documents it is not possible to rely merely on the oral assertion of the defendant's partner Shaukat Hussain, Exh. 6 that these documents had been signed and delivered on behalf of dependant .No. 1 in the year 1966. The special adhesive stamp of the Stamp Office on Exhs. 5/2 and 513 belie the defendants. In the circumstances the defendants have failed to prove that they bad signed Exhs. 5/1, 5/2; 513 and 5/6 in blank. These documents would show that they were signed on 31-12-1971. The issues are answered accordingly.

6. Issues Nos. 3 and 4.-I will for the purpose of answering these issues assume that the plaintiff-Bank allowed the pledged goods to be depreciated in value and/or that the plaintiff-Bank was wrong in not acceding to the defendants' request for the sale of tile pledged goods. However. in this case B there is no counter-claim and in its absence these issues become inconsequential.

7. Issue No. S.-The plaintiff's claim in this suit is for the sum acknow ledged as on 31-12-1971 and the interest thereon as mentioned in the promissory note Exh. 5/1 which on the date of the suit comes to Rs. 44,432.83 (Rupees forty-four thousand four hundred thirty-two and eighty-three paisas only). As from the date of the suit the plaintiff will be entitled to interest at 9 % per annum with monthly rests until recovery. Mr. Mansoor Ahmed Khan, the learned counsel for the plaintiff did not press the prayer for sale of the pledged goods, and rightly so, for the pledged goods appear to be non-existent. Notwithstanding the defendants' admission in the written statement that the pledged goods were stored in one of the rooms of the defendants' factory the evidence on behalf of the defendants was that the pledged goods were stored not in any room in the factory but an altogether another place, a furlong away from their factory. Obviously, therefore, there are no pledged goods which were stored in one of the rooms in the defendants' factory as admitted by. the defendants in their written statement and there would be no purpose in the plaintiffs chasing the pledged goods elsewhere.

8. The suit is accordingly decreed jointly and severely against the defendants for Rs. 44,432.8,3 (Rupees forty-four thousand four hundred thirty-two and eighty-three paisas). The plaintiff will be entitled to interest at 9 % per annum with monthly rests from the date of the suit until recovery and cost as prayed for.

S. A. H. Suit decreed.

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