MAHMOOD AHMED KHAN, J.--The plaintiff since has filed this suit for recovery and damages.
2. The case as made out by the Plaintiff, in abbreviation and with the required details, is that the Plaintiff was residing at Riyadh, Saudi Arabia for the last about 30 years, where her husband was a doctor by profession and running a hospital and Plaintiff used to visit Karachi off and on to look after her property. The Plaintiff is maintaining a dollar saving Account No,6208-015455-091 with the Defendant for the last about 15 years, the same is, however, operated by the Plaintiff very rarely. The Plaintiff further claims that on account of prevailing uncertainty in Saudi Arabia because of strained relations between Iraq-Kuwait-Saudi Arabia, which were later on followed by the gulf war, she in the month of January, 1991, remitted the amount of US$39,323/- to the defendant Bank in her aforementioned account through Al-Bank Al-Saudi Al-Fransi, Riyadh and the said remittance was confirmed by the defendant vide its advice No,TT 06936 dated 21.01.1991, informing the plaintiff of the credit in her account. It is further alleged that the defendant bank was not very particular in sending the statement of account and on account of not so frequently used, the Plaintiff was not concerned, therefore, when considerable time elapsed, the plaintiff requested for statement of account, which is normally sent every six months. In response to the said request, the Defendant sent a letter dated 12.10.1994 at Saudi Arabia that a sum of US $ 3767.59 was standing to the credit of the Plaintiff on the said date. The Plaintiff was surprised and shocked to know the same and insisting that her account must be having a considerable amount including the aforesaid amount of US.$ 39323 which she had remitted in January, 1991 and that such amount has never been withdrawn by the plaintiff. Her queries in this regard were not responded to as such she came to Pakistan and visited the Bank personally, met with Mr. Haseeb Khan, has promised to look into the matter on the plea that the requisite information was not readily available with him. An application dated 07.03.1995 was obtained from her and the same was signed by the plaintiff. In response to the plaintiffs application, a reply was given by the defendant dated 20.03.1995 along with photo copies of statement of account for the year 1991. It is claimed by the plaintiff that said statement of account has never been supplied before to the Plaintiff, along with said letter, the. Defendant also provided photo copy of letter allegedly signed by the plaintiff on 09.06.1991 for issuance of dollar bearer certificates of US $ 40,000.00. The plaintiff claims to be shocked as she has never requested for issuance of any dollar bearer certificates as alleged by the defendant Bank and the said letter dated 09.06.1991 was never written nor signed by the plaintiff and plaintiff has also not received any dollar bearer certificates as allegedly shown in the said letter. The plaintiff, therefore, repeatedly approached the defendant Bank, however, the defendant's official kept the plaintiff on false promises and finally they refused to listen the Plaintiff, as such a legal notice dated 02.04.1995 through registered post A.D. was issued to the defendant bank, to which the plaintiff claims an evasive reply was received dated 16th April, 1995 reply and denies contents of the same. The said reply, according to the Plaintiff, further states that matter is being investigated and by another reply dated 06.06.1995, the defendant through their advocate reiterated the contents of their earlier reply dated 06.04.1995, hence denied the grievances claimed by the Plaintiff to be genuine. The plaintiff claimed that the so-called letter / application dated 09.06.1991 is false, fabricated and bogus and that the officials of the Plaintiff on account of rarely operated has committed fraud and misappropriation of the Plaintiffs amount lying in the Bank by forging signatures and the so-called application for the same. The plaintiff also claims that the Defendant's officials are liable to be prosecuted under the criminal laws and the Bank is liable to pay said amount to the Plaintiff with interest/markup at Bank rate from the date of remittance of the said amount till its realization and that the Defendant is liable to pay damages to the Plaintiff for shock and mental torture caused to the Plaintiff and also claims sum of Rs,2 Million as damages on account of alleged fraud and misappropriation committed to the Plaintiffs amount being custodian.
The Defendant in the written statement admitted the Plaintiff's visit at Karachi including having transactions with the Defendant. The presence of the amount was also admitted along with remittance as claimedby thePlaintiff. The communication between the parties was admitted to the extent except the letters regarding credit balance in the Plaintiff account and the said Defendant further claimed that statements of account were sent to the Plaintiff in accordance with the mandate given to the Defendant. The Plaintiff's visit to the Bank was also admitted along with request for the desired information in writing and the same was claimed to be a matter of procedure. It is further claimed by the said Defendant that the Plaintiffs letter of authorization- mandate date 09.06.1991 for issuance of Dollar Bearer Certificates of US $ 40,000 was given to the Defendant and that the signature thereon conformed to the Plaintiffs signature on record and that the said transaction was implemented and a receipt was obtained. It is further claimed that the transaction was implemented in good faith and in normal course of business pursuant to the request, authority and mandate given by the Plaintiff. It is further claimed that the said signatures conformed to the Plaintiffs signature held on record of the Defendant. The exchange of letters between the Advocate's was however admitted. The said Defendant denied the letter / application dated 09.06.1991 and it was further denied that officers of the Defendant have committed any fraud and / or misappropriation by forging Plaintiffs signatures as such denied the claim of the Plaintiff along with alleged shock and mental torture allegedly claimed thereon. It was further claimed by the said Defendant that on the receipt of the Plaintiffs query, and grievance, the matter was once again investigated and that the investigation confirmed that the Defendant has acted upon the request, authorization and mandate of the Plaintiff and that the signature on the letter dated 09.06.1991 confirmed with the Plaintiffs signature held on record. It is further claimed that tthe handwriting expert also confirmed the same in a written opinion. The said Defendant as such claimed that transaction of US $ 40,000 was made in accordance with the instructions of the Plaintiff and it is stated by the said Defendant that the Dollar Bearer Certificates issued by the Defendant to the Plaintiff was presented for encashment on 28.06.1992 and 26.08.1992 through Citibank and ANZ Grindlays Bank Karachi.
3. On 19.05.1996, proposed issues as filed on behalf of the Plaintiff by consent as following were adopted by the Court vide-order dated 18.08.1996:--
1. Whether the plaintiff in January 1991 had remitted an amount of US $ 39,323.00 in her Dollar Saving AccountNo.6208-015455-091 maintained with the defendant Bank at Karachi?
2.Whether the plaintiff had authorized the defendant Bank through letter dated 9 June 1991 to issue Dollar Bearer Certificates of the value of US $ 40,000.00 from her Dollar. Saving Account?
3. Whether the defendant has given Dollar Bearer Certificates of the value of US $ 40,000.00 to the plaintiff in June 1991?
4. Whether the letter dated 9 June 1991 (Annexure F to the plaint) bears the signatures of the plaintiff?
5. Whether the plaintiff had issued any cheque of her aforesaid account for issuance of Dollar Bearer Certificates of US $ 40,000.00?
6. Whether the plaintiff is entitled to recover US $ 40,000.00 and damages/ compensation of Rs,20,00,000.00 from the Defendant?
7. Whether should the decree be?
4. The Plaintiff filed her Affidavit-in Evidence and was examined as Exhibit No,P. She produced her Affidavit-in Evidence as Ex.P/1, original bank letter dated 21.01.1991 as Ex.P/2, original letter dated 12.10.1994 as Ex.P/3, application dated 07.03.1995 as Ex.P/4, letter dated 20.03.1995 as Ex.P/5, Photostat copy of statement of account for the year 1991 as Ex.P/6, photocopy of the letter dated 09.06.1991 as Ex.P/7, copy of legal notice dated 02.04.1995 as Ex.P/8, original letter/ reply dated 16.04.1995 as Ex.P/9, original copy of letter dated 06.06.1995 as Ex.P/10. The said witness was cross- examined.
Plaintiff also examined her son Dr. Iqbal Munawwar Ghori, who filed his Affidavit-in-Evidence and was examined as P.W-2, Ex.P/11. He produced Affidavit-in Evidence as Ex.P/12. Thereafter, learned counsel for the Plaintiff closed the side of Plaintiff, vide statement as Exhibit No,P/13 The said witness was cross-examined.
The defendant on the other hand has however failed to bring forward any evidence in the matter as such after repeated opportunities, the matter was considered by order dated 3-9-2013 (hereinafter referred to as the said order), in respect to which an appeal bearing No, 130/2013 was preferred by the defendant and withdrawn on 16-2-2016. In the matter disposal of C.M.A. No, 11127/ 2013 has been taken up along with the final arguments and the learned counsel have argued to the same.
5. Learned counsel for the plaintiff has argued that the version of the plaintiff has been proved by her evidence and the same is also supported by the evidence of her son which remained intact even after cross-examination. It is further argued that the defendant has failed to bring out the original documents as relied upon and a comparison of signatures by a copy cannot be entertained. As to. the C.M.A. No, 11127/2013 he has relied upon the objections filed thereto and it is contended that the H.C.A. No, 130/2013 was ordered to be withdrawn without any right to agitate the matter as such the same is un-tenable, he has relied upon the reported cases of 2013 SCMR page 464-Muhammad Yar v. Muhammad Amin and PLD 2003 SC page 40-Imtiaz Ahmed Mahmood v.
Federal Board of Intermediate and Secondary Education Islamabad.
On the other hand the learned, counsel for the defendant has preferred to argue to the extent of the said C.M.A with an adamant attitude, reiterating the contents thereof and has relied upon the cases of 1999 MLD page 3173-Giorgio Beverly Hills Inc. v. Colgate Palmolive Pakistan Ltd. and 2004 CLC page 544-Lithunian Airlines v. Bhoja Airlines (Pvt.) Ltd. and others. In the circumstances without making any further comments as to the attitude shown being distasteful, the record as present has been considered as to the final arguments required on his part.
6. Having heard the learned counsel for the Plaintiff and the Defendants and having examined the available material on record, I will first deal with the pending C.M.A. bearing No,11127/2013 which is an application under Section 151 read with Order XI Rule 9, C.P.C. praying for setting aside the said for closing of side. It bears from the record that the said order was passed after hearing of the parties and the same was also challenged in appeal, the defendant cannot agitate the matter since decided without showing any material which was not considered in the said order, irrespective to the reason given for the withdrawal before the Learned Appellate Court as no material has come forward requiring the same. The relied upon cases of the plaintiff are distinguishable on account of reliance on the application and absence of any observation along with the cases sighted on behalf of defendants as reliance is not being made on the affidavit of the associate counsel but on merits and the record present. It is observed that the material as brought forward already stands discussed in the subject order and even now the defendant has not given up the application/s discussed therein. Further looking at the ultimate conclusion it bears from the record that the original documents are not available with the defendant as stated in the application under Order XIII, Rule 2 r/w Article 76 of Qanun-e-Shahadat and section 151 C.M.A.
3858/2004. Under the circumstances even if this application is allowed the same will not change the fate of things as such any such indulgence shall be an exercise is a futility and waste of further time. The said application not having any merits affecting the fate of the matter stands dismissed.
7. Before giving my findings on the issues with reasons at this final stage on account of being not .required, clarity of discussion and having consequential effect, it is preferred to reduce the issue and to alter their numbers in priority as such the same are re-casted as under:--
1. Whether the letter dated 9th June 1991 (Annexure F to the plaint) bears the signatures of the plaintiff?
2. Whether the plaintiff had authorized the defendant Bank through letter dated 9 June 1991 to issue Dollar Bearer Certificate of the value of US $ 40,000.00 from her Dollar Saving Account? If so did the defendant give Dollar Bearer Certificates of the value of US $ 40,000.00 to the plaintiff in June 1991?
3. Whether the plaintiff is entitled to recover US $ 40,000.00 and damages/compensation of Rs, 20,00,000.00 from the Defendant?
4. Whether should the decree be? {{TABLE}} Issue No,1Negative Issue No,2Negative and not proved Issue No,3Positive and as discussed Issue No,4The suit of the plaintiff is decreed as discussed. {{TABLE}} Issue No,1 Whether the letter dated 9 June 1991 (Annexure F to the plaint) bears the signatures of the plaintiff?
The plaintiff in her evidence has deposed that the letter dated 9 June 1991 (hereinafter referred to as the said letter) does not bear her signature she has been cross-examined and nothing has come on record to have any presumption otherwise. The plaintiff in her evidence has also stated that her son use to accompany her to the visits to the bank, the same has not been challenged and the son has also deposed in support of the plaintiff. The defendant has failed to bring forward the original of the said letter, no reasonable explanation in this regard has also come forward, the importance of the said letter was well within the knowledge of the defendant as the same has alleged been sent to the hand writing expert, yet for reasons best known to the defendant and or its concerned officials the said letter has filed to see the light before this court and without the presence of the said original letter a copy thereof cannot be entertained. The alleged hand writing expert for whatsoever worth his evidence would have been has also never been brought before this court despite his name coming up in the list of witnesses. The defendant as such has failed to discharge the burden of proof shifted by the deposition on the plaintiff in this regard as such this issue is decided in negative.
Issue No,2 Whether the plaintiff had authorized the defendant Bank through letter dated 9 June 1991 to issue Dollar Bearer Certificate of the value of US $ 40,000.00 from her Dollar Saving Account ? If so did the defendant give Dollar Bearer Certificates of the value of US S40,000.00 to the plaintiff in June 1991?
This issue in view of the foregiven need not be discussed in repetition, it is as such only further observed that no supporting document to the issuance of the dollar bearing certificates have been brought up by the defendant i,e, in the alleged entertainment of the letter dated. 9 June 1991, it is hard to believe that only an authorization was required for issuance of the dollar bearer certificates. Although the alleged letter dated 9 June 1991 contains an acknowledgement of receipt the resulting fate in absence of the original is no different. It is also considered that hand writing of the said document is quite different to the exhibit P/4 (complaint to the bank on the personal visit, the admitted document). Although the defendant has neither alleged nor the plaintiff has denied the presence of the plaintiff on the date of June 1991 in Pakistan as such said letter and receipt in original not coming forward cannot provide any favour of the defendant. It is also observed that normally banking transactions for withdrawal from an account are carried by way of cheque/s and the same is obtained from a customer titled as cash or favoring the bank, there is as such no bar that only a cheque can be utilized for withdrawal as a cheque is also instruction of payment/withdrawal, but where this normal course is disturbed it becomes difficult to understand that despite this deviation the bank will not be more careful in handing the said transaction. The issue of authorization of the defendant bank through letter dated 9 June 1991 is decided in negative. Whereas to the portion "if so did the defendant give Dollar Bearer. Certificates of the value of US $ 40,000.00 A to the plaintiff in June 1991" stands decided as not proved.
Issue No,3 Whether the plaintiff is entitled to recover US $ 40,000.00 and damages/compensation of Rs .20,00,000.00 from the Defendant?
As already discussed for the issues 1 and 2 not being repeated for the sake of brevity the consequential effect is that the withdrawal transaction shown to the debit of the plaintiff cannot be entertained same is to be reversed as such it is decided that the plaintiff is entitled to recover US $ 40,000/- to the current value in Pakistan rupees, the plaintiff however has not brought forward any evidence to establish the claimed damages/compensation of Rs,20,00,000 and the profit as available at the saving bank rate covers the element of loss of non-utilization for which no evidence is required. The decree at the current rate of US dollars covers the element of depreciation as the same is considered to be a stable currency.
Issue No,4 Whether should the decree be?
In view of above, the suit of the plaintiff is hereby decreed to the extent that the plaintiff is entitled to receive the amount of US $ 40,000/- in Pakistan rupees along with profit thereon at available at normal saving bank rate, both at the date of the decree but without rest from the date of filing of the suit till recovery of the same along with costs of the suit.
Let the office draw such a decree.