' This suit had been filed by Australasia Bank Limited against the defendants for the recovery of Rs, 47,998.15. C.M.A. 3661/79 has been filed on behalf of the Plaintiffs for amending the title of the suit by substituting the name of Allied Bank of Pakistan Limited for Australasia Bank Limited. The application is granted and the learned counsel for the plaintiffs is permitted to make this formal amendment in the title of the plaint.
2. Defendant No, 1 is a partnership firm and which had an account with the plaintiff bank's branch at Nazimabad, Karachi. Defendants 2 to 8 have been joined as its partners. Defendant No, 9 is impleaded as a guarantor of defendant No,
1. Defendant No, 2 died and his legal representatives were brought on record as defendants Nos. 2(a) to 2(e) and the other heirs of deceased defendant No, 2, namely defendants 4, 8 and 9 were already on record.
3. The case of the Plaintiffs is that defendant No, 1 firm had been granted overdraft facilities in their account from time to time by the Plaintiff Bank and on the date of filing of the present suit an amount of Rs, 47,998.15 was due and owing from the defendants. Defendants Nos. 2(a) and 2(e) and defendant No, 5 were declared ex parte and other defendants filed their written statements.
The following issues were adopted by this Court :-
(I) Whether the suit has not been signed and verified by person legally authorised by Board of Directors. If so, is the suit not competent ?
(2) is the suit time-barred ?
(3) Whether the defendants were the partners of defendant No, 1 at the relevant time ? If not which of the defendants were its partners ?
(4) Whether the partnership of defendant No, 1 was dissolved and reconstituted, If so, its effect 7
(5) Whether defendant No, 9 executed guarantee bond for repayment and pledged fixed deposits in his personal capacity or on behalf of defendant No,1 ?
(6) Whether the plaintiffs were authorised to act as agent of defendants and deposited fix deposit receipt ?
(7) What amount, if any, is due and payable and by which of the defendants ?
(8) To what relief, if any, the plaintiff is entitled to ?"
4. On behalf of the plaintiff, manager of their branch was examined as P. W. 1 (Exh. 6) today, and after his evidence, the plaintiff closed their side. No one was present on behalf of the defendants and their side was closed. I have heard Mr. Habibur Rehman, learned counsel for the plaintiffs.
5. According to the evidence of P. W. 1, overdraft facilities had been granted from time to time to defendant No, 1 which was availed by them from time to time. The following documents have been produced by the witness which were given by the defendants as security for repayment of the amount due from the defendants :-
(1) Account opening form-Exh. 6/1.
(2) Authority for operating account-Exh. 6/2.
(3) Promissory Note dated 20th January, 1969-Exh. 6/3.
(4) Agreement of pledge of goods-Exh. 6/4.
(5) Agreement of Hy pothecation- Exh. 6/5.
(6) Letter of authority by defendant No, 9.-Exh. 6/6.
(7) Letter dated 15th November, 1967 of defendant firm-Exh. 6/7.
The witness also produced the statement of accounts as Exh. 6/8, which, according to the witness, is based on the entries in the ledgers of the Bank and is also certified as true on behalf of the Bank.
According to the statement of accounts a sum of Rs, 47,998.15 was due and owing in the account of the defendant No, 1 to the plaintiff Bank, at the time of the tiling of this suit.
6. On issue No, 1.-The witness of the plaintiff has stated that the plaint has been signed by the two officers of the Bank who were also attorneys of the Bank and they have also verified the plaint. The defendants have not led any evidence and have remained absent and the evidence of the plaintiff on this point has not been controverted. Issue No, 1 is decided against the defendants and it is held that the suit has been properly signed and verified on behalf of the plaintiff Bank and the suit is competent.
Issue No, 2.-Relates to the question of limitation. The various credit entries in the statement of accounts, letter dated 15th November, 1967 (Exh. 5/7), deposit of Rs, 25,000 on 6th November, 1968, promissory note dated 20th January, 1969, and other documents clearly show that the suit is not time-barred. Issue No, 2 is decided in the negative and it is held that the suit is not time-barred.
Issue No, 3.-The documents produced by the witness of the plaintiffs show that defendants 2 to 8 were partners of defendant No,
1. In Exh. 6/1 the names of the partners are given and the promissory note dated 20th January, 1969 (Exh. 6/3) is also signed by defendants 2 to 8. No evidence has been led on behalf of the defendants as they are absent. Issue No, 3 is decided in the affirmative and it is held that defendants 2 to 8 were the partners of defendant No, 1 at the relevant time.
' The burden of issue No, 4 regarding the dissolution of the defendant firm was on the defendants but no evidence has been led. This issue is accordingly decided against the defendants.
' On issue No, 5 relating to defendant No,
9. The plaintiffs' witness has produced Exh. 6/6 which shows that defendant No, 9 had authorized the plaintiff bank to adjust the fixed deposit receipt of Rs, 25,000. There is no evidence to contradict the evidence of the plaintiff in this regard. However, no document has been produced to show that defendant No, 9 had given any separate guarantee for repayment of the dues of defendant No,
1. Issue No, 5 is decided accordingly.
' As regards issue No, 6 reference is made to the letter dated 15th January, 1967 of defendant No, 1 firm, in which a reference is made to the fixed deposit receipt of Rs, 25,000. Then Exh. 6'6 executed by defendant No, 9 gives the authority to the plaintiff bank to adjust this amount against the amount due from defendant No, I, and the amount was adjusted. Accordingly it is held on issue No, 6 that the plaintiffs were authorised to deposit the proceeds of the fixed deposit receipt of Rs 25,000 in the account of defendant No, 1.
Issues Nos. 7 and 8.-Relate to relief. From the evidence of P. W. 1 and the documents produced by him. It has been established that an amount of Rs, 47,998.15 was due and owing from the defendants Nos. 1 to 8 to the plaintiffs at the time of filing of the suit. However, defendant No, 9 is not liable. His liability was to the extent of Rs, 25,000 and that amount with interest had been adjusted.
7. In the circumstances, I pass a decree in favour of the plaintiff and against the defendants 1 to 8 jointly and severally, in the sum of Rs, 47,998.15 with interest at the rate of 10% per annum with monthly interests from the date of the filing of the suit till realization. The plaintiff shall also be entitled to costs. The suit as against defendant No, 9 is dismissed.