' The appellant has come in appeal against the judgment and decree of 3rd Additional District Judge, Karachi, decreeing the suit of the plaintiff in the sum of Rs, 23,500 with interest at the rate of 6% per annum from the date of institution of the suit till the payment of the amount. The facts giving rise to this appeal are as under :-
2. One Syed Sadiq Ali Sajid Ali (I will hereinafter describe him as the deceased) had a current account No, 12/806 with the appellant bank at Karachi. The deceased also had another account with the appellant bank at its Narayan Ganj branch, being account No, C. A-1. On or about 20th December, 1956, the deceased got the sum of Rs, 20,000 which was lying in his account at Narayan Ganj branch transferred to the local office branch of the appellant at Karachi. It appears that a sum of Rs, 20,000 was again transferred from the account of the deceased from Karachi branch to the Dacca branch of the appellant. It further appears that on or about 8-9-1959, the deceased having come to know of the above transfer of the amount from his Karachi account to Dacca branch of appellant, he addressed a letter dated 8-9-1959 which was allegedly delivered personally to one Mr. Baquir the then Manager of the appellant branch at Karachi. This letter of the deceased was not replied by the appellant. The deceased thereafter, died on or about 19-1-1961 in India and after his death the present respondent who is the daughter of the deceased obtained a certificate of succession in respect of debts and securities of the deceased from the Court of District Judge, Karachi. Having obtained the succession certificate as aforesaid the respondent approached the appellant for payment of the sum of Rs, 25,000 lying in the account of the deceased. The appellant however, on 8th January, 1963, informed the respondent that only a sum of Rs, 4,500 was available in the account of the deceased. The respondent thereupon served a legal notice upon the appellant demanding the sum of Rs, 24,500 which was repudiated by the appellant. The respondent then withdrew a sum of Rs, 4,500 from the account of the deceased on the strength of succession certificate and filed suit No, 339 of 1967 for recovery of the balance amount of Rs, 23,500 (Rs, 20,000 as principle amount and Rs, 3,500 as interest at the rate of 6% from. 31-12-1962 to 31-11-1965) and further claimed interest on the above amount at the rate of 6 % from the date of institution of the suit till the amount is paid. The claim of the plaintiff was resisted by the appellant bank on. Several grounds and on the basis of the pleadings of parties the trial Court framed the following issues "(1) Whether the plaintiff is the legal heir of Sadiq Ali Sajid Ali? If not, what is the effect?
(2) Whether the amount of Rs, 20,000 was unauthorisedly transferred from the account of Sadiq Ali Sajid Ali from Karachi to Dacca? If not, what is the effect?
(3) Whether the original and real account holder Sadiq All Sajid All had withdrawn the amount transferred from Karachi to Dacca then to Chittagong at Chittagong. If so, what is the effect?
(4) Whether the defendant is liable in respect of payment made to Sadiq Ali Sajid Ali?
(5) Whether this Court has jurisdiction to entertain the suit?
(6) Whether the suit is barred by limitation ?"
' The trial Court after recording evidence and hearing the parties decided all the issues in favour of the respondent and accordingly decreed the suit as prayed. I have heard Mr. Mansoorul Arfin, the learned counsel for the appellant and Mr. Anis Ahmed, the learned counsel for the respondent in this appeal. Mr. Mansoorul Arfin, has urged only the following two contentions before me at the hearing of this appeal.
3. It is firstly contended by the learned counsel that the suit as filed on 6-12-1965 is barred by limitation as the period of limitation prescribed for filing the suit would be deemed to have started on 11-3-198 when a cheque in the sum of Rs, 20,000 drawn by the deceased on the appellant, was dishonoured and thereafter the cause of action arose to the present respondent on 19-1-1961 when the deceased died in India and she became entitled to recover the said amount. Alternatively, it is urged by the learned counsel that the demand for payment of the amount for the purpose of Article 60 of Limitation Act should be construed to have been made on 8-9-1959 when the protest letter (Exh. 13) was delivered to the appellant at its Karachi branch by the respondent against the alleged illegal transfer of Rs, 20,000 from Karachi to Dacca branch. It has been urged by the learned counsel for the appellant that if the case is to fall under Article 60 of the Limitation Act the suit should have been filed within three years of the demand and in this case according to the learned counsel the demand was made on 8-9-1959 when the protest letter was delivered by the deceased to the local office of the appellant and, therefore, the institution of the suit on 6-12-1965 was much after the expiry of the period of three years prescribed for institution of the suit. It is also urged by the learned counsel that even if the institution of the suit is governed under Article 120 of the Limitation Act, which is a residuary article, then the period of 6 years for filing of suit also expired on 8-9-1965 and therefore the suit as instituted on 6-12-1965 was also beyond time under this article. In so far the contention of the learned counsel that the cause of action shall be deemed to have arisen on 11-3-1958 when the cheque in the sum of Rs, 20,000 was dishonoured by the appellant, is concerned, it is sufficient to say that this cheque was dishonoured for the A reason "drawer's signature differs". I, therefore, find no difficulty in holding that the above endorsement did not amount to refusal to pay on demand b the appellant and, therefore, limitation for filing the suit did not arise from that date. In so far the other contention of the appellant that the demand for payment of the amount shall be deemed to have been made on 8-9-1959 when the protest letter (Exh. 13) was delivered to the appellant is concerned, this contention equally has no force. In order to appreciate fully this contention of the learned counsel for the appellant it is necessary to reproduce here the letter dated 8-9-1959 written by the deceased to the Manager, National Bank of Pakistan, local office, Karachi :- "To ' The Manger/Chief Accountant National Bank of Pakistan, Local Office, Karachi.
' Ref: Current A/C No, 12/806, Ledger No, 415.
' Sub: Reference our verbal discussion regarding a/c No, quoted above.
' Dear Sir, ' I have been running a current account in your branch since 1951 in the name and style of Sadiq Ali Sajid Ali and the number quoted above.
' Besides I had also a balance of Rs, 20,000 in the current account in your bank at the Narayanganj Branch in the same name and style viz. Sadiq All Sajid Ali. I got transferred this entire amount to your branch in my name from Narayanganj branch under their letter No, C-A/dated 20th October, 1956.
' Having a discussion with both of you it transpired that you have transferred Rs, 20,000 from my account to your Dacca Branch. I wish to bring it to your notice and to protest that you have done so without obtaining any authority from me. I want to emphasize it once again that I never authorised you to transfer any amount from my account to your Dacca Branch. I am shocked and surprised to note this irregularity on your part.
' I, therefore, request that necessary enquiries may please be made in the matter and the amount of Rs, 20,000 (as contended by you to have been transferred to your Dacca branch) be transferred back from your Dacca branch and credited in my account."
' A reading of the above letter. (Exh. 13) will show that the only request made by the deceased in his above letter, was that the sum of Rs, 20,000 allegedly transferred to Dacca Branch of the appellant on the basis of the authority of the deceased be called back and transferred to his account at Karachi as it was done unauthorisedly. It is not disputed before me that the above letter of the deceased was not re 'ied to by the bank at any time and, therefore, it cannot be argued that there was refusal on the part of appellant to pay the above amount to the deceased. The only letter by which refusal could be inferred on the part of appellant to pay the sum of Rs, 20,000 was sent by the appellant in reply to the demand of the respondent on 8.1-1963, wherein it was for the first time stated that a sum of Rs, 4,500 only is lying in the account of the deceased payable to respondent. It is conceded by the learned counsel that if the letter dated 31-12-1962 written by the respondent is taken to be the demand for payment of money and the letter dated 8th January, 1963 is considered to be the refusal to pay, the suit as instituted on 6-12-1965 will be within time. After having considered the tenure of the letter dated 8-9-1959, I am of the view that this letter did not amount to a demand for payment of the amount so as to make it the starting point of limitation for filing the suit. The request made in the above letter to the appellant was simply to call back the amount of Rs, 20,000 which was illegally transferred to Dacca. The failure of the bank to give reply to that letter could not be deemed to be a refusal to pay. There is nothing on record to show that the appellant bank before writing the letter dated 8-1-1963, repudiated or refused to pay the amount to the deceased or the respondent. It is an admitted position on record that after the death of the deceased the succession certificate was granted to the respondent on 8-12-1962 and immediately thereafter she wrote to the appellant for payment of the sum of Rs, 25,000 lying in the account of the deceased and in reply to the letter of respondent the appellant bank for the first time on 8-1-1963 informed the respondent that only a sum of Rs, 4,500 was available in the account of the deceased. If the above letter of respondent is considered as a demand for payment of the amount then the suit instituted on 6-12-1965 is within time. I am, therefore, of the view that the suit filed by the respondent is within time.
4. The next contention raised by the learned counsel for the appellant is that the deceased being an Indian national the amount lying to his credit in his account at Karachi could not be paid to the respondent in view of section 5 of the Foreign Exchange Regulation Act, 1947 (1 will hereafter refer this Act as 'the Act') section 5 of the Act is in the following terms :- "5.-(1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this subsection which may be granted conditionally or unconditionally by (the State Bank), no person in, or resident in (Pakistan) shall-
(a) make any payment to or for the credit of any person resident (outside Pakistan);
(b) draw, issues or negotiate any bill of exchange or promissory note or acknowledge any debt, so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any person resident (outside Pakistan);
(c) make any payment to or for the credit of any person by order or on behalf of any person resident (outside Pakistan);
(d) place any sum to the credit of any person resident (outside Pakistan);
(e) make any payment to or for the credit of any person as consideration for or in association with-
(i) the receipt by any person of a payment or the acquisition by any person of property (outside Pakistan); (ii)the creation or transfer in favour of any person of a right whether actual on contingent to receive a payment or acquire property (outside Pakistan);
(f) draw, issue or negotiate any bill of exchange or promissory note, transfer any security or acknowledge any debt, so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any person as consideration for or in association with any matter referred to in clause (e).
(2) Nothing in subsection (1) shall render unlawful :
(a) the making of any payment already authorised, either with foreign exchange obtained from an authorised dealer under section 4 or with foreign exchange retained by a person in pursuance of an authorisation granted by (the State Bank);
(b) the making of any payment with foreign exchange received by way of salary or payment for service not arising from business in, or anything done while (in Pakistan).
(3) Nothing in this section shall restrict the doing by any person of anything within the scope of any authorisation or exemption granted under this Act.
(4) For the purpose of this section, "security" also includes coupons or warrants representing dividends or interest and life or endowment insurance policies."
A reading of the above provision relied upon by the learned counsel for the appellant shows that what is prohibited under section 5 of the Act, is that no payment is to be made to or for the credit of any person resident outside Pakistan. This section also prohibits making of any payment to or for the credit of any person by order or on behalf of any person resident outside Pakistan or placing of any sum to the credit of any person resident outside Pakistan. In the instant case it is not disputed that the respondent is neither a person who is resident outside Pakistan nor is she an Indian national. The payment demanded by the appellant is not for and on behalf of any person not resident of Pakistan but the amount is claimed by her on the basis of being an heir of the deceased for which she has been granted a succession certificate from a competent Court of law in respect of debts and securities belonging to the deceased. I am, therefore, of the view that section 5 of the Act is not attracted in the present case and the respondent is competent to apply for withdrawal of the amount lying to the credit of the deceased in his account and such a 'demand by her could not be defeated by the appellant bank seeking shelter under section 5 of the Act.
5. In so far the merits of the claim of respondent in the suit are concerned the learned counsel for the appellant did not address any argument on the findings given by the trial Court with respect to unauthorised transfer of the amount of the deceased from Karachi to Dacca and I find that the findings of the trial Court are sufficiently supported by the evidence on record. The learned counsel however, urged that the act of transfer of Rs, 20,000 from Karachi to its Dacca Branch was a bona fide act and was not mala fide. Even if it be so this fact is not sufficient to discharge the liability of the appellant to the payment of the amount as it has been found to have been transferred from the account of the deceased unauthorisedly. It was in the end urged by the learned counsel for the appellant that there being no agreement between the parties to pay the interest at the rate of 6% per annum on the amount left by the deceased in his account, the trial Court should have disallowed the claim of interest amounting to Rs, 3,500 from 31-12-1962 to 30-11-1965. It is further urged by Mr. Mansoorul Arfin, that the rate of interest claimed by the respondent was exorbitant as at that time the prevalent rate of interest was much lower. However. 1 find that neither any such issue was raised before the trial Court nor any evidence was led before the trial Court to show that the rate of interest was less than 6% per annum. Under section 1 of the Interest Act is an amount is payable to a person on damand and if such payment is refused to him by the person who is bound to make the payment on demand then the Court has discretion to award C interest which may be equal to prevalent rate of interest at that time on the sum refused. As the amount claimed by the respondent was lying in the account of the deceased which was payable on demand, I find no illegality or arbitrariness in the order of the trial Court allowing interest at the rate of 6% per annum from the date of demand till the filing of' the suit in the absence of evidence to the contrary. It was also urged by the learned counsel that it was admitted by the respondent that she was not the sole heir of the deceased and that at least there was another heir namely her brother who is in India, and, therefore, she was not competent to sue alone. This contention of the learned counsel does not seem to be correct as the appellant as holder of succession certificate is entitled to sue on behalf of all the heirs and any payment made to her will amount to discharge of liability to all the heirs in so far the appellant is concerned.
6. No other point was urged. There is no merit in this appeal which is accordingly dismissed with costs.