MIAN HAMID FAROOQ, J.---National Bank of Pakistan, the appellant/plaintiff, through the present appeal, has called in question judgment and decree dated 12-5-2004, whereby the learned Judge Banking Court, Multan, passed a decree, to the tune of Rs.87,387 along with costs of funds and costs of suit, favouring the appellant-Bank.
2. Precisely stated facts of the case are that the appellant bank/plaintiff filed the suit for recovery of Rs.10,96,199, against the respondents/defendants, before the learned Judge Banking Court, inter alia, pleading that the respondents were granted a cash financial facility of Rs.5 Million, against securities of pledge stocks and mortgage of property, belonging to defendants Nos.3, 4 and 7 and the defendants executed certain documents and availed the facility, however, when they failed to liquidate the outstanding liability, the appellant bank was constrained to file the suit for recovery.
The respondents, except respondent No.3, filed the application for leave to defend the suit, which was resisted by the appellant bank and ultimately the learned Judge Banking Court, after finding that no serious and bona fide dispute exists between the parties, dismissed the said leave application and consequently, after examining the statement of accounts partially decreed appellant's suit for the sum of Rs.87,387, together with costs of funds and costs of suit, vide composite judgment and decree dated 12-5-2004, hence the present appeal.
3. Learned counsel for the appellant has submitted that an amount of Rs.2,78,757, charged by the appellant Bank, as insurance charges, and salary of staff etc. In the statement of accounts, has illegally been deducted, while the appellant Bank is entitled to recover that amount as per clause
(4) of the mortgage deed dated 16-10-1997, thus, the impugned decree needs modification to that extent. He has further submitted that the date of the expiry of finance facility was 30-6-1999, while it was erroneously held that it was 30-4-1999. The learned counsel for the respondent has submitted that the Bank failed to place on record any documents showing the alleged payment made to the insurance company.
4. We have heard the learned counsel and examined the summoned record. Clause (4) of the said mortgage deed clearly states that in case mortgagor failed to pay any such premium of the insurance, the bank may pay the same on behalf of the mortgagor and recover the same from him. The respondents have not denied the execution of the said mortgage deed. Thus on the strength of the said clause, the appellant Bank could recover the insurance charges from the respondents. An amount of Rs.1,67,459 has been charged as insurance charges, as held by the learned Court. The appellant bank has also debited the salary of the staff, inspection charges and other miscellaneous expenses in the account of respondent No.1, thus, the total amount, as calculated by the appellant, charged as insurance charges, salary of staff and inspection charges etc. Comes to Rs.2,78,575. We have examined the summoned record and find that although the said amount was debited in the account of the respondents,' yet the appellant bank did not file any supporting documents in order to show that such and such amount was paid by the Bank, to the insurance company as premium, on behalf of the respondents/mortgagors and that such and such amount was paid as salary. We are unable to find any document on record even to prima facie show that the said amount was, in fact, paid to the insurance company/ concerned persons.
The appellant bank should have filed the vouchers, receipts or some other documents manifesting that the said amount was, in fact, paid .To the insurance company. In the absence of any supporting documents, the Bank is not entitled to recover the said amount merely on the ground that the same finds mention in the statement of accounts, which is not authenticated by documents/receipts. Thus the learned Judge Banking Court has rightly declined to allow the said amount of Rs.2,78,757 to the Bank.
5. We have minutely examined the statement of accounts and find that the same has not been certified as required under the law. The certificate given at the bottom of the statement of accounts is reproduced below:- "Certified on oath that all the entries are correct as per ledger which is still in our custody."
"Certified copy" has been defined under section 2(8) of Bankers' Books Evidence Act, 1891, which reads as follows:- "Certified copy" means a copy of any entry in the books of a bank together with a certificate written at the foot of such copy that it is true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, such certificate being dated and subscribed by the principal accountant or manager of the Bank with his name and official title."
It flows from the bare perusal of the said provision of law that a certificate, which is to be given at the foot of copy of statement of account, so as to make it certified copy of the statement of Accounts, must state the following facts:--
(i) it is true copy of the such entry;
(ii) such entry is contained in one of the ordinary books of bank;
(iii) it was made in the usual and ordinary course of business;
(iv) such book is still in the custody of the bank;
(v) it must be dated; and
(vi) subscribed by the principal accountant or manager of the bank with his name and official title.
Placing the definition of "certified copy", as reproduced above, in juxtaposition with the certificate given by the bank on the copy of the statement of accounts, one leads to the irresistible conclusion that the certificate is not in accordance with the aforesaid provision of law. Thus the statement of accounts is not "certified copy" as contemplated under C section 2(8), ibid. Consequently, the said copy cannot be received as prima facie, evidence of the existence of such entry and cannot be admitted as evidence of the matters, transaction and accounts as required under section 4 of the Bankers' Books Evidence Act, 1891. On the basis of this statement of accounts, which is not the certified copy, the respondents cannot be held liable to pay the amounts claimed by the appellant.
6. As regards next contention of the learned counsel. We find from sanction letter dated 1-7-1998 that the date of expiry was fixed as 30-4-1999, but it was struck down by stroke of pen. We have also inspected finance agreement dated 22-10-1998 which shows the date of expiry as 30-6-1999, however, the same appears to be the result of overwriting.
We find some manipulations and cutting in clauses (1) and (2) of the finance agreement, so as to make the date of expiry as 30-6-1999. On the basis of such type of finance agreement which bears cuttings, overwriting, manipulations and interpolation, it can neither be urged nor held that, the date of expiry is 30-6-1999. We feel that the date of expiry has rightly been held as 30-4-1999.
Contention of the learned counsel has no substance. Learned counsel for the appellant has admitted that the respondents have paid the amount of Rs.51,34,370 after 30-4-1999.
7. In the above perspective, we have examined the impugned judgment and decree and find that the same do not suffer from any legal infirmity, those were passed not only in accordance with the record of the case but also in consonance with the law on the subject. We are not persuaded to modify the decree, as prayed by the appellant.
8. In view whereof, the present appeal is devoid of merits, hence stands dismissed with no order as to costs.