JANATA BANK Vs. ABDUS SALAM

JUDGEMENT

(1.) This appeal by leave is against the judgment and order dated 4.9.1994 passed by the Division Bench of the High Court Division in First Appeal No. 68 of 1998 allowing the appeal in part.

(2.) The respondent as plaintiff filed Title Suit No. 365 of 1984 in the 2nd Commercial Court, Dhaka for decree for delivery of imported goods or price of the goods amounting to Tk. 4,81,516.00. mesne profit of Tk. 1,00,000.00 and damages of Tk. 1,80,000.00 totaling Tk. 7,61,516.00 upon allegations, inter alia, that he carries on bossiness in the firm names, M/S A. Salam and brothers, and M/S Bengal Commercial Traders. He imported 17 cases of diesel engine, spare parts from California, 9 cases from New York and 3 cases from London by opening L/Cs through the defendant appellant bank namely, Janata Bank (hereinafter referred as to the said Bank). The bank had cleared the said consignments by opening loan against import, LIM account Nos. 624, 643 and 654 respectively and kept the goods in the godown at Shabistan Cinema Building at Armanitola. The plaintiff took part delivery of the said imported goods from time to time upon payment against total outstanding dues of the above LIM accounts that subsequently the bank had to remove the goods to its central godown at 53, Motifjheel Commercial Area, Dhaka; when the plaintiff went to bank's central godown on 29.9.73 to take delivery of one case of goods, he found that three cases are broken. The plaintiff reported the matter to the bank and a joint survey was held on 12.12.73 and it was found that the cases are under tampered condition. The bank by its letter dated 14.2.74 denied pilferage from its godown, and refused to deliver the goods till clearance of entire dues of LIM accounts and by legal notice dated 22.5.76 demanded payment of the outstanding dues. Present market value of the undelivered goods would be Tk. 4,81,516.00 and the appellant bank is liable to deliver the said goods or its price thereof. The appellant bank is further liable to pay the plaintiff-respondent Tk. 1,80,000.00 as damages as he could not utilize his import license for 16 import periods because of refusal by the defendant-appellant bank to supply L/C authorization. The plaintiff respondent claimed that he is further entitled to get mesne profit which he assessed at Tk. 1,00,000.00 on account of illegal detention of the imported goods by the appellant bank and hence the suit.

(3.) The defendant appellant bank contested the said suit by filling written statement denying the plaint allegations and contended, inter-alia, that there is no cause of action for filling the suit, that the suit is barred by limitation as well as by the principles of waiver, estoppels and acquiescence and that the suit is not maintainable in its present form and manner. The plaintiff imported 57 and not 29 cases of engines and spares parts. The plaintiff imported failed to clear the goods on their arrival at the port. The appellant bank had to clear the same by opening LIM accounts. The validity of LIM account is only 45 days and the total liabilities against the defendants on different LIM accounts stood at Tk. 16,23,000.94 as on 30.9.82. The plaintiff had taken delivery of almost all cases of engines and spares parts and that only a few cases were lying in the bank's godown with engines and spare parts. The bank requested the plaintiff respondent time and again to take delivery of the remaining goods upon settlement of the bank's dues but the respondent did not comply with the request of the appellant bank. The bank had no liability whatsoever, regarding the alleged pilferage and denied missing of the goods from its godown. The defendant bank contended that the claim of the plaintiff respondent for the delivery of the goods after about 10 years is not maintainable and the appellant bank had no responsibility to deliver the same. Further the plaintiff-respondent cannot claim the delivery of the goods without first clearing the outstanding dues. The appellant bank also contended that the suit has been filed only to defer the payment of the legitimate dues of the bank and the suit is liable to be dismissed.