' This is a suit for the recovery of Rs, 1,40,504.13, against the defendants jointly and severally. The facts leading to the filing of the suit as disclosed in the plaint are that the defendants Nos, 1 to 7 signed and delivered to the plaintiff an incomplete negotiable instrument purporting to be a joint and several promissory note in the sum of Rs, 1,50,000, carrying interest thereon at 3% above the current bank rate subject to the minimum of 7 % with monthly rests. It has been averred that the plaintiffs were entitled to insert and complete the said instrument and in fact they did complete the same on 1-3-66 with the concurrence of the defendants when the borrowers along with their guarantors (the defendants Nos, 8 and 9) called on the plaintiff on 1-3-66. It has further been averred that the defendants Nos, 8 and 9 exetuted simultaneously on 1-3-66 letters of guarantee undertaking the payment of the dues to defendant No,
1. It has -alto been averred that defendant No, 8's liability was to the extent of Rs, 35,000, while the liability of the other surety i. e. Defendant No, 9 was for all the sums owing to the plaintiff by the defendant No, 1, up to the amount of Rs, 15,000. It has also been averred that defendants Nos, 1 to 7 have made several payments against their dues in the cash credit, packing credit, and overdraft accounts secured by the promissory note and after giving them adjustment of those payments there is a sum of Rs, 1,40,504.13, as debit outstanding balance due and owing by the defendants to the plaintiff. The plaintiffs have averred that the alleged cause of action accrued to them on 1-3-66 when the negotiable instrument was made into a joint and several promissory note against the defendants Nos, 1 to 7 and also on the various other dates. When part payments were made towards the loan and acknowledgments were also made. On the basis of the above assertions the present suit has been filed.
2. It may be observed that defendants Nos, 3, 6 and 7 after the filing of the written statement entered into a compromise with the plaintiff bank and agreed to pay a sum of Rs, 50,000, on the condition that the plaintiff bank shall not pursue its claim for the balance amount against the above defendants. In pursuance of the above compromise the above defendants had paid the above amount of Rs, 50,00, to the plaintiff which fact has been recorded in the order dated 1342-73.
However, for the balance amount an ex parte decree was passad against the remaining defendants, namely, the defendants Nos, 1, 2, 4, 5, 8 and 9 as they had not put in appearance after the service of summons was held good. It may be observed that on the application filed by defendants Nos, 2, 4 and 8 the ex parte decree passed against them was set aside by the two orders dated 30-9-74 and dated 25-8-75 but the decree against the defendants Nos, 1, 5 and 9 remained intact.
3. The defendant No, 2 has filed a written statement in which the execution of the promissory note or any other negotiable instrument has been denied. It has been averred that the answering defendant was not a party to the alleged transaction between the plaintiff and the other defendants. It has been further averred that the answering defendant had nothing to do with the alleged loan and that he never made any payment on that account. It has also been asserted that the defendant No, 2 was never called upon by the plaintiff to make any payment nor he was informed by the plaintiff or any body regarding the alleged promissory note. It has also been averred that the alleged claim is time-barred against the answering defendant. The defendant No, 2 has also raised some additional pleas, which inter alia included the plea that the partnership agreement was entered into between the defendants Nos, 3, 4 and 7 on 23-11-67 but the same was subsequently dissolved and that the partnership agreement was cancelled. It has also been averred that the original partnership deed bears the words "cancelled" with the defendant No,
3. On the basis of the above averments it has been denied that the defendant No, 2, is liable to pay any amount to the plaintiff.
4. The defendant No, 3 has also filed a separate written statement dated 15-1-70 before entering into the compromise with the plaintiff referred to herein above in para 2. In the above written statement it has been averred that the alleged promissory note 'was signed and the money was paid to the defendant No, 1 much before 1-3-66 is e. The date which has been inserted subsequently by the plaintiff on the alleged promissory note. It has also been awarded that on the basis of the above assertions the suit is barred by limitation. It has also been averred that the loan advanced against the alleged promissory, note was advanced, to the defendant No, 1 against the exportable goods which business the defendant No, 1 carried on for several years and operated the account in the plaintiff bank. It has also been averred that the last exportable goods stored with the plaintiff in their gotlown were valued at Rs, 46,281, in Pakistani market and about Rs, 88,000, was its export value. It has also been averred that the plaintiff arbitrarily closed defendant No, l's account on 13-4-66 and thus deprived the defendant No, 1 of exporting the goods lying at the plaintiff's godown. It has also been denied that the answering defendant is liable to pay Rs, 1,40,504.13 or any other amount. It has also been averred that the suit is barred by limitation.
5. The defendant No, 4 after the ex parte decree was set aside against him by an order dated 25- 8-75 filed a written statement dated 30-8-75 wherein the facts that the defendant had signed the promissory note and had delivered the same to the Bank have been denied. It has been averred that the answering defendant had ceased to be a partner of the defendant No, 1 with effect from 26-6-65 and that this fact was duly communicated to the plaintiff vide his letter dated 1-7-65 which bears the signature of the Assistant. Manager, Foreign Exchange Branch of the plaintiff-Bank who acknowledged the receipt thereof and signed and returned the duplicate copy to the answering defendant. It has further been averred that answering defendant is not liable personally for the acts of other partners subsequent to the dissolution of the firm on 22-6-65. It has also been averred that at the relevant time, when the answering defendant was partner of the defendant No, 1 firm no dues were payable by it to the plaintiff-Bank. It has also been averred that any cause of action accrued to the plaintiff against the aforesaid answering defendant. It has further been avered that the suit was barred by limitation and was also false, vexatious and liable to be dismissed. The defendant No, 4 has also taken some additional pleas in his written statement which inter alia include the plea that the partnership which was entered into on 23-11-64 and that it was subsequently dissolved with effect from 22-6-66 and, therefore, it did not carry on any business and, therefore, there was no question of borrowing any loan from the plaintiff. It has also been pleaded that one of the partners, namely, Umaid Imran was one of the sons of Aqilur Rehman who was occupying an important position in the plaintiff-Bank and that the alleged transaction was manoeuvred by him with the connivance of the said person and defendants Nos, 3, 6 and 7, who were benefited. It has also been pleaded that the transaction is collusive which fact is proved by the fact of the compromise decree between the plaintiff and the defendants Nos, 3, 6 and 7. The defendant No, 4 has denied his liability to pay any amount.
6. The defendants Nos, 6 and 7 have filed a joint written statement dated 15-1-70. The pleas taken by the above defendants are more or less identical with the pleas raised by the defendant 3 in his separate statement referred to hereinabove in para.
4. In addition to the above pleas the defendants Nos, 6 and 7 have also averred that they had an account with the plaintiff-Bank being account No, P. C. 5 and Current Account No, 853 and that the answering defendants had signed the promissory note being parties to the said accounts which were closed by the defendants in April, 1967, and that on closing of the above accounts the plaintiff paid a sum of Rs, 55, to the defendants being the amount lying in the said accounts. It has also been averred that the answering defendants were never informed about any alleged liability, as alleged in the suit. On the basis of the above averments it has been denied that the said defendants are liable to pay any amount.
7. The defendant No, 8 has also filed a written statement after the ex parte decree was set aside against him by an order dated 30-9-74. The defendant No, 2 has averred that the contents of para.
2. Of the plaint (?) for want of his knowledge. It has also been denied that he stood surety for the other defendants. It has also been averred that he never visited the plaintiff along with the borrowers on 1-3-66 or on any other date. It has been further averred that the answering defendant was working as a clearing and forwarding agent of the plaintiff and had nothing to do with the defendant, nor there was any occasion for him to stand surety for the defendants nor he never executed any such letter of guarantee as mentioned in para. 3 of the plaint. It has also been averred that it is not understandable as to how for a promissory note of Rs, 150,000, the plaintiff accepted a guarantee of the answering defendant for Rs, 35,000. It has also been averred that perhaps some letter of guarantee signed in blank as is usual with the banks given by the answering defendant for Rs, 35,000, is converted by some mischievous Officer of the plaintiff as a guarantee in the suit. It has also been averred that the answering defendant had absolutely nothing to do with the transaction between the plaintiff and other defendants and that the answering defendant never received any demand from the plaintiff nor there was any occasion for the plaintiff to make any demand on the answering defendant. It has also been averred that even if the averments contained in the plaint are to be taken as correct the claim against the answering defendant is not maintainable and is absolutely time barred. On the basis of the above averments the defendant No, 8 has denied his liability to pay any amount to the plaintiff.
8. On the basis of the above pleadings following issues were framed:
(1) Whether the intimation of dissolution of partnership firm, the defendant No, 1 was given to the plaintiff by the defendant No, 4?
(2) Whether the promissory note dated 1-3-1966 was signed and delivered by the defendant No, 4?
(3) Whether the concurrence of defendant No, 4, was acquired to the subsequent insertion of date in the aforesaid promissory nose?
(4) Whether the alleged transaction was not made during the period subsequent to the dissolution of the partnership firm the defendant No, 1?
(5) Whether the alleged transaction was not collusive?
(6) What is the effect of compromise made in the present suit by the plaintiff with defendants Nos, 3, 6 and 7?
(7) Whether the suit is maintainable on the basis of alleged promissory note?
(8) Whether the suit is not barred by limitation?
(9) What should the decree be?"
My findings on the above issues are as follows:-
9. Issue No, 1.-(a) The learned counsel for the plaintiff has urged that the plaintiffs were not given any notice of the alleged dissolution of the partnership and that the copy of the defendant No, 4's letter dated 1-7-65 Exh. 8/19 cannot be relied by the defendants as the same has not been proved.
On the other hand the learned counsel for the defendants Nos, 2 and 4 have urged that under section 45 of the Partnership Act either there should be an actual notice or a notice by publication.
It has been further urged that the delivery of the aforesaid letter dated 1-7-65 Exh. 8/19 has been proved as much as Mr. Khambatta P. W. 1 Exh. 8 in his cross-examination has admitted that a copy of the said letter was signed by Mr. Aqilur Rehman who was the Sub-Manager of the branch in question. It was further urged that once the plaintiff's above witness had admitted the signature of Mr. Aqilur Rehman on the copy of the above letter the burden of proof was shifted on the plaintiff to prove that in fact the above letter was not delivered to them. The learned counsel for the defendants Nos, 2 and 4 have also relied upon sub-para. 5, at page 1 of the letter dated 3-3-66 Exh.
8/8.
' In support of his aforesaid contention Mr. Namazi, learned counsel for the plaintiff has drawn my attention to the following facts:
(i) that the defendant No, 4 while making an application dated 14-4-75 (C. M. A. 748/75) did not disclose about the delivery of the above letter either in the application or in the supporting affidavit, but had come out with the above letter in his rejoinder, which was filed on 24-4-65 and, therefore, the genuineness of the above letter is in ' doubt.
(ii) It has also been pointed out that the above letter has been allegedly delivered to Mr. Aquilur Rehman the Sub-Manager who was not competent to receive the same as the letter was addressed to the Manager and it should have been delivered to the manager or to the despatch clerk.
(iii) that the above letter has not been referred to in any of the subsequent documents.
(iv) that the defendants Nos, 3, 6 and 7 have not averred in their written statement that the above partnership was dissolved, but on the contrary they have paid a sum of Rs, 50,000, in order to liquidate their liability in respect of the above partnership.
(v) that the power of attorney dated 23-6-65 Exh. 8/7 and a letter dated 3-3-66 Exh. 8/8 belie the allegation of the dissolution of the partnership.
(b) I am inclined to hold that the defendants have not been able to prove that the alleged notice of the partnership Exh. 8/19 was actually delivered to the bank for the following reasons:-
(i) It has come on the record that one Ubaid Imran who is a son of Mr. Aqilur Rehman was a partner in the defendant No, 1 firm. This fact has been brought on the record inter alia by the defendant No, 4 himself in his written statement and also by suggesting the same to P. W. 1 in his cross- examination. If that is so, in that event Mr. Aqilur Rehman had some personal interest in the transaction in question and the alleged receipt of the above notice dated 1-7-66 is not free from doubt particularly when he is no longer in the service of the plaintiff.
(ii) that it is significant to note that the copy which has been produced by the defendants Nos, 2 and 4 only contains the signature of Aqilur Rehman, but it does not bear any date of the receipt nor it has rubber stamp of the Bank which is normally put on the receipt of any document.
(iii)-that the power of attorney Exh. 8/17 belies the allegation that the partnership was dissolved on 22-6-66 as the said power of attorney was executed on 23-6-66 authorising one of the partners to operate account etc. It may be observed that Mr. Khalid Hamid, the learned counsel for the defendant No, 4 has urged that this power of attorney cannot be relied upon inter alia for the reason that he first page does not bear the stamp of the stamp vendor and secondly the execution of the above power of attorney has been denied by the defendant No,
4. It is true that the non- judicial paper of Rs, 20, does not contain the stamp of the stamp vendor, but page No, 2 which is a plain paper contains the stamp of the stamp vendor with the necessary endorsements relating to the date of issuing and the name of the purchaser etc. Even if it is to be conceded that the above stamp paper was not issued in normal manner, the question which remains to be considered is as to whether the defendant No, 4 signed a document on a date subsequent to the alleged dissolution of the partnership deed, belying the allegation of the dissolution of the partnership. It may be observed that all the three pages of the power of attorney have been signed by the defendant No,
4. The above document clearly proves the fact that the partnership was not dissolved on 22-6-65 as alleged by the defendants Nos, 2 and 4. I am not called upon to adjudicate upon the question as to whether this power of attorney was enforceable or not. In my view the contents of this document can be taken into consideration for the purpose of determining as to whether the firm was dissolved on 22-6-66. It may be observed that defendants Nos, 2 and 4 have denied their signature on the above power of attorney. I have compared the admitted signature of defendant No, 4 given on Exh. 8/1 with the signature on the photostat copy of the power of attorney and in my view the two signatures are identical. It may also be observed that the defendant No, 4 has also denied the signature on the bank page of Exh. 8/1, but after having denied he admitted the same in his further deposition. It may also be observed that the learned counsel for the plaintiff was unable to point out the signature of defendant No, 2 on the above power of attorney but this fact will not make any difference as the alleged letter dated 1-7-65 of informing the plaintiff about the aileged dissolution of the partnership was written by the defendant No, 4 and not by the defendant No, 2.
(iv) Letter dated 3-3-66 Exh. 7/8 relied upon by the learned counsel for defendants Nos, 2 and 4 does not refer to any alleged dissolution of the partnership. The reliance was placed on sub-para.
(5) of the above letter by the learned counsel for the above defendants which reads as under:- ' In June, 1965, we re-organised our company and the entire management of the company was taken over by the undersigned and by the end of August, 1965, with the cooperation of your esteemed organisation, we reduced the clean advance to Rs, 20,000, approximately as our production capacity was doubled by acquiring another freezing factory owned by Enterprises in addition to our own factory i. e. AL-KAUKAB."
' If the contents of the above para is to be read keeping in view the fact that the partners purported to have delegated the power to one of the partners, namely, A. Latif Chichi under the aforesaid power of attorney executed it becomes clear that the reference to the re-organisation of the firm is not in context with the alleged dissolution of the partnership but in fact it refers to the working of the firm. In my view the above letter does not help the defendants Nos, 2 and 4. On the contrary, it advances the case of the plaintiff.
(v) I. May be also noticed that the defendants Nos, 3, 6 and 7 have not asserted in their written statement that the -above partnership was dissolved on 22-6-1965. On the contrary they have compromised the matter with the plaintiff by making a payment of Rs, 50,000, against the amount claimed in the suit. This clearly goes to show that in fact the partnership was not dissolved, otherwise the above three defendants would have also raised the same plea in order to avoid their liability instead of admitting their liability and paying Rs, 50,000, to the plaintiff. My finding on this issue is in the negative.
10. Issue No, 2.-It has been pleaded by the plaintiff that the promissory note was given to the Bank by the defendants Nos, 1 to 7 at the time of availing of the credit facility of Rs, 150,000, but the date, namely, 1-3-66 was inserted with the concurrence of the defendants Nos, 2 to 7 on the above promissiory note. The defendants Nos, 2 and 4 have denied the execution of the promissory note.
However, the issue as framed is as to whether the promissory note was signed by the defendant No,
4. The promissory note in question Exh. 8/3 bears the signature of the defendant No, 4 and is marked as Exh. 8/3/5. If the above signature is compared with the admitted signature on Exh. 8/1, the irresistible conclusion would be that both the signatures are identical. Section 20 of the Negotiable Instruments Act (1881), provides that where one person signs and delivers to any other person paper stamped in accordance with law regarding the stamp duty chargeable on negotiable instrument either wholly blank or having written thereon incomplete negotiable instrument in order that it may be made or completed into negotiable instrument he there by prima facie authorises to the person, who receives it to make or complete it as the case may be into negotiable instrument. In the instant case, it is proved that this promissory note was given by the partners of the defendant No, 1 to the plaintiff without containing the date. In my view by virtue of section 2 of the aforesaid Act, the plaintiff was entitled to insert the date on the above promissory note. My finding on this issue is in the affirmative.
11. Issue No, 3.-lt has been urged by the learned counsel for the defendant No, 4 Mr. Khalid Hamid that P. W. Mr. Khambatta was unable to say in his cross examination as to whether in fact the defendant No, 4 was present when the partners on 1-3-66 had allegedly authorised the Bank to insert the date. On the basis of the above admission on the part of Mr. Khambatta P. W. 1 it has been contended that the plaintiff has failed to prove that the insertion of the date on the promissory note was with the concurrence of the defendant No,
4. In this regard it may be observed that even if it is proved that one of the partners bad concurred with insertion of the above date it will suffice as being a partner the had implied authority from the other partners. In the instant case P. W. 1 was unable to say that in fact the defendant No, 4 was present at the time of the insertion of the date but he has deposed that other partners were present. Be that as it may, in view of section 20 of the Negotiable Instruments Act, already referred to hereinabove by me under issue No, 2, the insertion of the duty was legal.
My finding on this issue is that the defendant No, 4 was not present and had not concurred to the insertion of the date of 1-3-66 but this does not affect the case on merits for the foregoing reasons.
12. Issue No, 4.-Since I have already held that the partnership was not dissolved on 22-6-65 this issue has become redundant and does not require any discussion, even otherwise the ground has been covered under issue No, 1.
13. Issue No, 5.-It has been urged by the learned counsel for defendants Nos, 2 and 4 that the transaction was collusive inasmuch as has been proved that Ubeid Imran was one of the sons of Mr. Aqilur Rehman, the Sub-Manager of the plaintiff-Bank branch in question and, therefore, it should be presumed that the above transaction was collusive. In this regard the learned counsel for the defendant No, 4 has relied upon para.
8. Of the additional pleas by the defendant No, 4 in his written statement. In support of the above assertion Mr. Khalid Hamid has also relied upon the fact that the defendants Nos, 3, 6 and 7 have compromised the above suit and according to him this goes to prove that the transaction was collusive. It may be observed that the defendants Nos, 3, 6 and 7 have paid a sum of Rs, 50,000, in order to reduce the amount claimed in the suit. By their above act they have not prejudiced the defendant No, 4's interest in any way. It is well established principle of law that a partner is liable jointly and severally and, therefore, the liability of the defendant No, 4 was also several for the full amount of claim. As a matter of fact, in my view, by the above settlement the defendant No, 4 has been benefited inasmuch as his liability has been reduced to the extent of Rs, 50,000. Furthermore, his right to claim contribution/indemnification from the other partners if he will be made to pay under the decree of this Court more than what he is liable to contribute as a partner is not affected by the above compromise. Therefore, I do not see any justification to infer the alleged collusiveness of the transaction because of the above compromise.
' My finding on this issue is in the negative.
14. Issue No, 6.--I have already discussed the effect of the above compromise entered into between the plaintiff and the defendants Nos, 3, 6 and 7. It will suffice to say that the above compromise has not prejudiced the defendants Nos, 2 and 4 or any other contesting defendant's interest.
15. Issue No, 7.-This issue was not argued by the learned counsel for the plaintiff or the defendant as the present suit is not on the promissory note. The promissory note was used for collateral purpose as a piece of evidence. Therefore the above issue does not need any discussion.
16. Issue No, 8.-Since I have given the finding on issue No, 1 that the partnership was not dissolved and since the defendants Nos, 2 and 4 have not disproved the part payments averred in the plaint and proved by the plaintiff through statement of accounts/vouchers etc. Exhs. 8/9 to 14. My finding on this issue is in the affirmative.
17. Issue No, 9.-In order to decide this issue it will be necessary to determine as to whether the defendant No, 8 is liable as a surety to the extent of Rs, 35,000. In this regard reliance has been placed by the learned counsel for the plaintiff on Exh. 8/4 which is a letter of guarantee. The defendant No, 8 in his deposition Exh. 11 has deposed that he had three accounts with the Standard Bank (predecessor of the plaintiff) in the name of (1) Munir Ahmed (2) United Shippers, and (3)
National Freezing Industries. He has further deposed that he had taken an overdraft of Rs, 35,000, in Munir Ahmed's account which was account L. I. M. Facilities. He has also stated that Messrs Standard Bank Ltd., had requested him to secure this overdraft by securing the guarantee of the United Shippers of which he was the sole proprietor. He has further deposed that he had signed the letter of guarantee Exh. 8/4 in blank but after filing in the sum of Rs, 35,000. He has admitted the signature on the above document. He has also deposed that he had no concern with Mohani Corporation the defendant No, 1, and that he used to ship the goods of Mohani Corporation at the request of Messrs Standard Bank Ltd. He has also deposed that he had not given any gurrantee to the Standard Bank on behalf of Mohani Corporation. He has also stated that he had some quarrel with one Mr. Velme, an officer of the Bank in connection with the storing of certain quantity of butter and that because of the aforesaid enmity above letter has been converted into a guarantee on behalf of the defendant No, 1.
(b) Mr. A. K. M. Idris, the learned counsel for the defendant No, 8 has urged that in spite of repeated order by this Court inter alia passed on 27-3-75, 28-3-75 the plaintiff did not produce the relevant documents including the documents mentioned in the defendant No, 8's notice dated 21-2-75 Exh.
8/5. It has been urged that an adverse inference should be drawn against the plaintiff because of the above failure. But whereas, Mr. Namazi, the learned counsel for the plaintiff has urged that the defendant No, 8 having admitted the execution of the above letter of guarantee, the burden of proof was on him to show for what purpose it was executed.
' Mr. Idris had also invited my attention to the following various facts in order to support his contention that in fact the above guarantee was given as a security, for the overdraft facility given by the plaintiff-Bank to the defendant No, 8 in his personal account.
(i) It has been pointed out that the liability of the defendants Nos, 1 to 7 was to the extent of Rs, 150,000, but whereas the plaintiff had allegedly accepted the guarantee from the defendant No, 8 to the extent of Rs, 35,000 only which is unusual.
(ii)That the defendant No, 8 was acting as a clearing agent at the request of the plaintiff-Bank in respect of the goods which were being exported by the defendant No, 1 and, therefore, there was no occasion for the defendant No, 8 to furnish a guarantee for the above sum of Rs, 35,000, and that the plaintiff-Bank would not have entrusted the work of clearing agent to the defendant No, 8 if he would have interest in the transaction of the defendant No, 1.
(iii) That the defendant No, 8 had not received the copy of the plaintiff's letter dated 23-7-1968 Exh.
8/6.
(c) In my view since the defendant No, 8 has admitted the execution of the above letter of guarantee, the burden of proof was on him to show us to the purpose for which it was given. I have already observed herein-above that in the written statement defendant No, 8 has pleaded that perhaps some letter of guarantee signed in blank which is usual with the bank was given by the answering defendant for Rs, 35,000, has been converted by some mischievous Officer of the plaintiff as guarantee in this suit. The above plea is different from the plea which has been taken by defendant No, 8 in his deposition in which his assertion was that he had taken overdraft facility in his personal account and that against that overdraft facility he had executed the above guarantee purported to have been signed by United Shippers. Apart from the fact that the above plea does not find place in the written statement in the form in which it has been raised by the defendant No, 8 in his deposition but legally the above plea is also untenable inasmuch as it is an admitted position that United Shippers was a sole proprietary concern and that the defendant No, 8 was its sole properietor and, therefore, the defendant No, 8 being the borrower could have also been the guarantor for the same transaction.
(d) Reverting to the contention of the learned counsel for defendant No, 8 that there was no occasion for the plaintiff to accept the guarantee for Rs, 35,000, instead of Rs, 1,50,000, it will suffice to say that there is nothing illegal in it and that it is not uncommon that guarantees of lesser amount than the amount of loan are accepted by Banks in order to apportion the liability.
(e) Reverting to the contention of the learned counsel for the defendant No, 8 that the notice dated 23-7-68 Exh. 8/6 was not received by the defendant No, 8, it may be observed that the plaintiff- Bank has produced a postal acknowledgment receipt Exh. 8/7 which is signed by some one on 25th July. It has been urged by the learned counsel for the plaintiff that once the postal acknowledgment receipt is produced, it would be presumed that the C letter was delivered to the addressee and that it would be for the addressee to prove that he has not received the letter. In support of the above contention Mr. Namazi has relied upon the case of Harihar Banerji and others v. Ramshashi Ray and others (1) and the case of Bashir Ahmed v. Mumtaz Khan (2).
' On the other hand Mr. Idris has contended that as the defendant No, 8 has receipt of the above letter on oath, the presumption in favour of the delivery stands rebutted and it was for the plaintiff to, examine the postal authorities in order to prove that actually the letter was delivered to defendant No,
8. In support of his above contention he has also invited my attention to the fact in the address, the room number was not mentioned and also to the fact that instead of effecting the service of summon of this suit by ordinary mode the plaintiff resorted to the substitute service by publication and there by had obtained an ex parte decree which was subsequently set aside by this Court through the aforesaid order dated 30-9-74. Be that as it may, it will suffice to say that even if it is to he conceded that the above letter was not delivered to the defendant No, 8, it will not make any materials difference as the defendant No, 8 cannot avoid his liability under the guaranted on the ground that the above letter was not received by him.
18. In view of the above discussion I decree the suit as follows:-
(1) for Rs, 90,504.13 against the defendants Nos, 2 and 4 jointly and severally, with 6% interest thereon, the date of the suit till payment.
(2) Out of the above decretal amount the total liability of defendant No, 8 will be to the extent of Rs, 35,000, only.
(3) In the circumstances of the above there will be no order as to costs.
(1) AIR 1918 P C 102 (2) PLD 1965 Lah. 126