MUHAMMAD SAYEED AKHTAR, J.---This appeal is directed against the judgment dated 6-10-2004 passed by the learned Judge Banking Court-II, Multan dismissing the suit of the plaintiff/appellant for declaration.
2. The plaintiff/appellant filed a suit on 13-11-1999 before the Judge Banking Court, Multan for declaration to the effect that the plaintiff/appellant had not obtained loan No.182855 amounting to Rs.1,00,000 from the defendant/respondentBank and the notice dated 6-11-1999 for its recovery was illegal. The plaintiff had no concern with the said loan and the defendants had no authority to issue any such notice. The prayer for issuing permanent prohibitory injunction restraining the defendants from claiming that said amount or adopting any coercive measures against him was also made. It was averred in the plaint that the plaintiff/appellant had obtained Loan No.067031 for purchase of Fiat-480 Tractor Model 1994 which was repaid on 3-2-1999. Thereafter the plaintiff booked another tractor Fiat-480 on 8-2-1999 for which the loan No.206504 was sanctioned by the Bank. The defendant sent a notice dated 6-11-1999 for recovery of loan No.182855 which the plaintiff never obtained from the defendant/Bank nor he has furnished any security in this respect. The plaintiff is being illegally harassed. The defendant/respondent- Bank filed belated application for leave to appear and defend the suit, however, on no objection of the learned counsel for the plaintiff the application for leave to defend the suit was allowed on 3-4- 2002. The defendant/respondent submitted a written statement on 17-5-2000. Eventually the following issues were framed on 2-11-2000:--
(1) Whether the plaintiff obtained an amount of Rs.1,00,000 in loan case No.182855 dated 29-6- 1998?OPD
(2) What is the real amount due against the plaintiff as on 30-6-2000 in loan case No.206504? OP- Parties.
(3) Relief.
The parties led their evidence. Plaintiff appeared as P.W.1 and produced Bakht Ali as P.W.2. The defendant/respondent produced Umar Ali, M.C.O., Z.T.B.L. As D.W.1 and Khalil-urRehman, Recovery Officer Z.T.B.L. As D.W.2. Liaqat Ali, Manager Z.T.B.L. Also appeared as a witness. He has been incorrectly shown as D.W.1, whereas, it should be D.W.3. The photocopies of following documents were also produced by the defendants:---
(i) Copy of the identity card of the plaintiff, Exh.D.A.
(ii) Specimen signatures of the plaintiff Exh.D,B.
(iii) Account opening form Exh.D.C.
(iv) Daily cash transaction register Exh.D.D.
(v) Current Account Ledger Exh.D.E.
(vi) Loan Ledger Exh.D.F.
(vii) Computer data Exh.D.G.
(viii)Agricultural pass book Exh.D.J, to Exh. D.J/4 and
(ix) Recovery Schedule Exh.D.H.
Abdul Razaq Raja, Advocate learned counsel for the defendant produced photocopies of the following documents:--
(i) Statement of account Exh.D.K. Regarding loan No.206504.
(ii) Application for obtaining the loan Exh.D.L. Exh.D.L./3.
(iii) Loan Agreement Exh.D.N. To Exh.D.N./7.
(iv) Sanction letter for Loan Exh.D.O.
(v) Detail of the Security Exh.D.P. To Exh.D.P./1.
(vi) Letter dated 29-9-1999 Exh.D.Q.
(vii) Acknowledgment receipt Exh.D.R.
(viii) Statement of account regarding loan No.067031 Exh.D.S. To Exh.D.S/1.
The learned Judge Banking Court-II, Multan after hearing the parties dismissed the suit of the plaintiff/appellant vide judgment dated 6-10-2004.
3. Learned counsel for the appellant contends that there is nothing on the record to show that the appellant ever applied or received any amount of loan No.182855. The evidence produce by the defendants/respondents is not worth consideration. The suit has been erroneously dismissed.
Conversely the learned counsel for the defendants/ respondents submitted that the appellant obtained a finance of Rs.1,48,800 under Loan No.067031 which was payable by 7-2-1998 but was repaid on 3-2-1999. N.O.C. Was issued by the Bank on the same date and the mortgage land was redeemed on 4-2-1999. The appellant had applied for another finance of Rs.1,00,000 on 29-6-1998 for purchase of fertilizer and seed, it was sanctioned as loan No.182855. The amount was disbursed.
The appellant also obtained a loan of Rs.2,72,000 on 8-2-1999 which is still being paid. The learned counsel referred to the account opening form Exh.D/1 and other documents. He urged that the appellant has mortgaged his land for securing the finance in question vide Mutation No.3654.
4. We have gone through the impugned judgment, perused the record and considered the arguments of the learned counsel for the parties. The onus to prove Issue No.1 was on the defendant/respondent-Bank. The defendant Bank has not produced the application of the plaintiff/appellant for obtaining the finance of Rs.1,00,000 allegedly sanctioned as loan No.182855, the sanction letter, the finance agreement, the cheque showing withdrawal of the loan or any document securing the finance. Even the photocopies of the said documents have not been placed on record. The documents Exh.D.A. To Exh.D.G. Have not been attested as per section 4 of the Bankers' Books Evidence Act, 1891 and thus they have no evidentiary value. Even otherwise Exh.D.A. Is only a photocopy of the identity card, Exh.D.B. Is regarding the specimen signatures of the appellant in respect of account No.8363, Exh.D.C. Is the account opening form of Account No.8363 and Exh.D.D. Also pertains to account No.8363 and do not connect the appellant with loan No.182855. Loan ledger Exh.D.F. And computer data Exh.D.G. Are also irrelevant. Exh.D.B. The statement of account, shows the withdrawal of amount through a cheque, however, the disbursement of amount of Rs.1,00,000 has not been proved. The cheque through which the amount is allegedly withdrawn has not been produced in evidence. It is not the case of the defendant Bank that the said cheque has been lost. The other documents produced in evidence do not pertain to loan No.182855. They relate to loan No.206504 and 067031. The onus to prove that the respondent-Bank gave finance of Rs.1,00,000 to the plaintiff has not been discharged by it. It is the case of the Bank that the record pertaining to the loan No.182855 has been lost. In the absence of any record of the loan in question, the plaintiff/appellant cannot be burdened with the same. It is well established that if the original documents are lost or destroyed, the secondary evidence relating to the said documents may be given under Article 76 of the Qanun-eShahadat Order, 1984 after seeking permission of the Court and fulfilling the conditions laid down in Article 77 of the Qanun-e-Shahadat Order, 1984. Where any transaction has been drawn in the form of a document no oral evidence can be led to prove such transaction unless -it is shown that original document has been lost or cannot be produced or procured and that too after obtaining permission of the Court for production of secondary evidence. See Mst.
Amir v. Soini 1997 M LD 2376. The defendant Bank has failed to prove that the original record was lost. Mere oral assertion of D.Ws. Of the bank is not enough to prove the loss of document. It is admitted by Liaqat Ali, D.W. In his cross-examination that if a particular record is lost the report of the same is sent to R.M. He further admitted that in the instant case no report regarding loss of file of loan No.182855 was sent to R.M. Nor any disciplinary proceedings were initiated against any officer. No F.I.R. Has been lodged regarding the loss of the said file. We are of the considered view that the loss of the file regarding load No.182855 is not proved. Similarly no permission of the Court was obtained for production of the secondary evidence. Where the loss of the document was not proved, secondary evidence, if any, could become valueless. See Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCM R 1237 and Mukhtar Ahmad through Legal Heirs v. Muhammad Yunus and 4 others 2001 CLC 1796. A document which is not duly proved cannot be read in evidence even If the same is exhibited without objection. See Water and Power Development Authority v. Ghulam Shabbir 1998 M LD 1592. There is no application of the plaintiff/appellant on the record for obtaining the disputed finance. No sanction letter has been produced. The Finance agreement is absent. The cheque through which the amount is stated to have been withdrawn has not been produced in evidence. The Mutation No.3654 allegedly securing the finance by mortgaging the land has also not been adduced in evidence. The defendant/respondent has failed to prove Issue No.
1. We, therefore, reverse the finding on Issue No. 1.
5. The upshot of the above discussion is that the defendant Bank has failed to prove. That the plaintiff/appellant obtained loan No.182855 from the defendant Bank. The judgment of the learned Judge Banking Court-II Multan is not sustainable, in law. We, therefore, accept this appeal, reverse the judgment of the learned Judge Banking Court-II, Multan and decree the suit of the plaintiff/appellant.