' The Plaintiff bank has filed this suit for recovery of Rs,81,000 against the Defendant on the basis of Promissory Notes and acknowledge ments executed by the defendant in favour of the plaintiff on various dates for the amounts advanced by the bank from time to time.
2. The admitted facts are that the defendant, who is owner and proprietor of Pakistan Knitting Mills had opened three accounts with the National Bank of Pakistan, Lawrence Road Branch in the year 1964 as under:-- "(i) In his own name viz., Amin Ahmed, being current/overdraft account (Account A-106).
(ii). A cash credit/overdraft account in the name and style of his sole proprietary concern, Pakistan Knitting Mills (P.C.D. Account).
(iii) A temporary overdraft account in the name of his sole proprietary concern: Pakistan Knitting Mills (P-21)".
3. In the first account the plaintiff at the request of the defendant granted an overdraft limit of Rs,53,000 which limit was fully utilized under Account No, A-106. The defendant also made certain payments towards the above amount. For the repayment of the above amount the defendant executed a Promissory Note on 16-11-1964 for Rs,50,000 payable on demand to the Plaintiff or order with interest @ 2% above the bank rate. The defendant also pledged shares and executed an agreement of pledge of security on the same date.
4. Under the first account the defendant made various acknowledge ments of the debts on several dates. The last acknowledgement under the first account was made on 31-12-1978 for Rs,15,635. This acknowledgement under the signature of the defendant is Exh.13 on the record which has been admitted by the defendant. Under the second account also various acknowledgements were made, the last being, dated 31-12-1971 for Rs,24,246 which is also signed by the defendant and is Exh.23 on the record. In the third account last acknowledgement was made on 31-12-1971 for an amount of Rs,37,293 which is Exh.31 on the record, and is admitted by the defendant.
5. The Plaintiff issued notices to the defendant for paying of the amount but the same were not paid. The plaintiff thereafter transferred the balances of Accounts Nos. 2 and 3 into the first account which was treated as the realization account. Thus under this account the total amount payable by the defendant to the plaintiff with interest on the date of the suit came to Rs,81,000. Hence the suit was filed on 15-9-1972 for recovery of the above amount with 10% interest with monthly rests from date of the suit till payment.
6. In his written statement the defendant alleged that the plaintiff was not entitled to merge the three accounts into one and that separate suits should have been filed for balances due under the said three accounts. He has also taken legal pleas which will be evident from the issues framed by the Court. Following issues were settled by consent of the parties:-- "(1) Whether this Court has no jurisdiction in the matter?
(2) Whether the claims in suit are barred by time?
(3) Whether the suit suffers from misjoinder of the causes of action?. If so, what is its effect?
(4) Whether all the three accounts were of the defendant?
(5) Whether the sales of the defendant's shares by the plaintiff were unauthorized wrongful and male fide? If so, what is its effect?
(6) Whether the defendant acknowledged on the dates alleged liability to pay the claims?
(7) Whether the plaintiff had a lien to transfer and amalgamate the amounts in the personal name of the defendant and treat the same as realization account?
(8) Whether the suit is properly valued for the purposes of court-fee?
(9) What sum, if any, is due and payable by the defendant to the plaintiff?
(10) Relief?"
' During the arguments Mr. Noor Muhammad learned counsel for the defendant did not press issues Nos. 3, 4, 5 and 8. Thus, arguments were addressed only on issues Nos. 1, 2, 6, 7 and 9 by learned counsel for the parties.
7. So far as Issue No, 1 is concerned, it has been argued by Mr.Noor Muhammad that the separate amounts acknowledged under Exhs. 13, 23 and 31 namely Rs,15,635, Rs,29,296 and Rs,37,293 could not have been merged into .one account. Nor a single suit could have been filed in respect of these amounts. According to him separate suits should have been filed for the three amounts in respect of the three accounts. In this case the valuation of every suit will be less than Rs,50,000. Hence the High Court will not have pecuniary jurisdiction to try the suit. According to the Civil Courts Ordinance, suits of the value of Rs,50,000 and less are to be tried by the District Judge. This argument was pressed only halfheartedly. It is not seriously contested that the amounts under the three acknowledgements were not due. Under rule 3 of Order II of C.P.C. the plaintiff was entitled to join all the causes of action against the defendant and file one suit in respect of the entire claim. I, therefore, hold that there is no substance in the argument that the plaintiff should have brought three separate suits in respect of the three acknowledgments or that the suit should have been filed before the District Judge instead of High Court. The issue is decided in the negative.
8. Issue No,
2. This issue has also been pressed halfheartedly. From the documents produced by the plaintiff it appears that under each account the defendant had been making acknowledgements in respect of the balance in each year. For example under the first account following acknowledgements were made by the defendant in writing:-- Rs.
No.Date Amount Rs.
Exh. 730-6-196555,488.25 Exh. 830-12-196662,366.12 Exh. 931-12-196759,491.25 Exh. 1031-12-196817,424.00 Exh. 1131-12-196919,282.00 Exh. 1231-12-197015,072.00 Exh. 1331-12-197115,635.00 Similarly under the second account following acknowledgements in writing were made by the defendant:-- Rs.
Exh. 1630-7-196551,923.47 Exh. 1731-12-196554,007.15 Exh. 1830-12-196657,533.07 Exh. 1931-12-196760,702.00 Exh. 2031-12-196818,596.00 Exh. 2131-12-196920,250.00 Exh. 2231-12-197022,091.00 Exh. 2331-12-197124,246.00 Under the third account following acknowledgements in writing were made by the defendant:-- Rs.
Exh. 2530-6-196522,795.44 Exh. 2630-12-196625,990.84 Exh. 2731-12-196728,501.36 Exh. 2831-12-196827,780.00 Exh. 2931-12-196930,603.00 Exh. 3031-12-197033,784.50 Exh. 3131-12-197137,293.00 ' All the above acknowledgements have been admitted by the defendant's counsel by making such endorsements on the originals. Thus it will appear that each acknowledgement under every account was made within one year of the preceding acknowledgement or the date of Promissory Notes. The last acknowledgement in respect of every account is also within one year of the preceding acknowledgement. The suit was filed on 15-9-1972 i.e, within one year of the date of the last acknowledgement. Hence the suit is within time. Mr. Noor Muhammad learned counsel for the defendant, in view of the above acknowledgements did not press this issue very seriously.
9. Issue No,6. It is not understood how Mr. Noor Muhammad has pressed this issue. The last acknowledgement in respect of the first account is Exh.13. Mr. Noor Muhammad has himself endorsed "admitted" under his signature on 13-9-1983 on this document. By this document the defendant has admitted balance of Rs,15,635 as on 31st December 1971 in Account No,A-106.
Similarly the last acknowledgment in/respect of the second account is Exh.23 and this document also bears endorsement of Mr.Noor Muhammad of "admitted" under his signature, dated 30-9- 1983. By this acknowledgement the defendant has confirmed the balance of Rs,24,246 outstanding against him on 31-12-1971. Similarly the last acknowledgement in respect of the third account is Exh.31. On this document also Mr. Noor Muhammad has made an endorsement "admitted" under his signature on 13-9-1983. The defendant by this acknowledge ment has confirmed the balance of Rs,37,293 outstanding against him as on 31-12-1979. The plaintiff has totaled all these three amounts under the three acknowledgements and added interest up to the date of the filing of the suit. The total thus arrived comes to Rs,81,0004.. Mr. Noor Muhammad unable to rebut the documentary evidence referred to above. On the contrary the plaintiff has based his claim on the documents which ha.ve been admitted by the defendant. This issue is decided in the affirmative.
10. Issue No,
7. Mr. Noor Muhammad learned counsel for the defendant has argued that the balance under the three accounts could not have been merged into one and treated as the realization account. According to him, the amalgamation of the three accounts could have taken place only with the consent of the parties. In support of this plea he has relied on the case of 'The Australasia Bank Ltd. v. H.S. Mahmood Hassan Akbar and 2 others' PLD 1983 Kar. 431 particular reference has been made to the following observations in the above judgment in respect of relationship of banker and customer in maintaining the current account:-- "The relationship bf banker and customer in maintaining the current account is purely of a debtor and a creditor. The bank is free to use the money as his own like any other borrower as the customer parts with the control over it retaining only his right to repayment. In overdraft accounts the bank always advances money to its customer and the relationship is mostly governed by the agreement between the parties. But cases may arise where spontaneous transactions may be required without previous arrangement and such temporary advances are payable on demand. In all respects and in all circumstances a banker is required to act without negligence and should perform his duty properly and diligently subject to the agreement and/or banking practice. The elementary duty of the banker is to maintain a correct and true account of the dealings between the parties. If a customer without checking the statement of account furnished by the bank and relying on the balances drawn in such statement of account, executes documents or confirms the balance but at a subsequent time the customer is able to show that the entries in the statement of account are not correct then the very basis on which such confirming document was executed loses its 'authenticity. In such circumstances a customer is entitled to call for the accounts and the banker is bound to render a true and correct account of the entire dealings."
' It is not understood how the above observations are attracted to the facts of the present case. The main argument is that the merger should have taken place with title consent of the customer. Now even' if the merger of the three avalanches into one had been made without consent of the defendant, what difference it would make so far as the total liability of the defendant under the three accounts is concerned. Even if there had been no merger, the plaintiff could have brought one suit for the balances under the three accounts, in view of the provisions of B rule 3 of Order II, C.P.C. This plea has, therefore, no substance and the issue is decided against the defendant.
11. Issue No,
9. In view of the admitted position the total amount under the three accounts, according to acknowledgements Exhs.13, 23 and 31, would come to (Rs,15,635 + 24,246 + 37,293)
Rs,77,174 as on 31-12-1971. According to the three promissory notes executed by the defendant in respect of each one of the three months, the defendant had agreed to pay interest @ 2% above bank rate. The amount under the first account was secured by Promissory Note Exh.14, executed by the defendant in favour of the plaintiff. This document is also admitted by Mr. Noor Muhammad learned counsel for the defendant under his endorsement, dated 13-9-1983. According to this Promissory Note which is, dated 16-11-1964, the defendant had undertaken to pay interest on the balance at the rate of 2% above bank rate with a minimum of (Sic) %. In respect of balance of the second account the amount was secured by a Promissory Note which is Exh.24 executed by the defendant in favour of the plaintiff bank. This document also bears endorsement of admission under the signature of Mr. Noor Muhammad Advocate, dated 13-9-1983. By this Promissory Note the defendant had undertaken to pay interest on the balance @ 3% above bank rate with a minimum of 7%. So far as the balance under the third account is concerned, it was not secured by any Promissory Note. However, the suit was filed on 15th September 1972 i.e, after 9 months of the date of the last acknowledgement by the defendant. The plaintiff was entitled to add interest for nine months to the balance of Rs,77,174 and file suit for the sum arrived at after so adding the interest.
Thus, the plaintiff has rightly brought this suit for Rs,81,000 against the defendant.
' In view of the above findings the plaintiff's suit for Rs,81,000 is decreed with cost. The defendant shall also be liable to pay interest at 7% per annum from date of the suit up to the date of the decree and interest at the same rate on the decrial amount from the date of the decree up to the date of payment. Decree to issue accordingly.