1. ' On 4-4-1963 the appellant No,1 approached the respondent for grant of a loan of Rs:75,000 and filed an application to that effect on 9-4-1963. Appellant. No,1 opened an account with the respondent on 11-4-1963 in the name of his sole proprietary concern Messrs National Sanitary House. The respondent granted cash credit loan to the appellant No,1 on 11-4-1963 for Rs,75,000 which was paid in cash to him. The appellant No,2 who is the wife of the appellant No,1 stood as guarantor for the repayment of the said loan and executed a letter of continuing guarantee on 11-4-1963. According to the respondent, the appellant No,1 admitted and acknowledged the receipt of loan and the amount outstanding against him on 28-3-1966 and executed a promissory note for Rs,41,626.95 in favour of the respondents and delivered the same to it alongwith the demand pronote delivery letter of the same date. The respondent demanded the repayment of the loan several times and served a notice, dated 13-8-1968 but in spite of the promises made by the appellant No,1 by his letter, dated 5-10-1968 the payment was not made. The respondent then filed a suit for recovery of Rs,52,474 which amount was due and payable on 30th November, 1968 against the defendant jointly and severally. The appellants filed a joint written statement in which it was denied that the appellant No,2 stood guarantor for payment of loan taken by the appellant No,1 and that she did not execute the deed of guarantee on 11-4-1963.
2. The appellant No,1 denied that he has acknowledged his liability and executed another promissory note on 28- 3-1966. It was pleaded that the appellant No,1 has adjusted Rs,62,000 towards the loan and the claim was, barred by time. It was also pleaded that the debit entries made by the respondent are without any basis. As regards letter, dated 5-10-1958 it was explained that it was written by the 'appellant No,1 on the persuasion and request of the Manager of the respondent who wanted it to be written for complying with the objection of the State Bank of Pakistan and in the event it was not written he was likely to be sacked. In the circumstances the appellant No,1 claims to have written it on the understanding that it shall not be used or acted upon. On the basis of the pleadings the following issues were framed:-
(1) Whether the suit is within time?
(2) Whether the defendant No,1 is agriculturist and if yes what is its effect ?
(3) Whether the defendant No,2 stood guarantor for the re-payment of loan by defendant No,1 and executed letter of continuing guarantee on 11-4-1963 ?
(4) Whether on 28-3-1966 the defendant No,1 executed promissory note of Rs,41,626.95 in favour of plaintiff.
3. And delivered the same to the plaintiff and if it amounted to admitting and acknowledging the receipt of the loan and correctness of the amount outstanding against him ?
(5) Whether the defendant No,1 has adjusted amount of Rs,62,000 towards loan ?
(6) Whether the plaintiff had served defendant No,1 with legal demand notice,, dated 13-8-1968 ?
(7) Whether letter, dated 5-10-1968 was got served by the Bank employee for defendant No,1 by inducement ?
(8) What is the amount outstanding payable to the plaintiff and if both the defendants are jointly and severally liable to pay the said amount ?
(9) What should the decree be ?
4. ' The learned trial Court by the impugned judgment decreed the suit.
5. ' Mr. Jhamat Jethanand, the learned counsel for the appellant has contended that the suit was not properly instituted as it has been filed by an unauthorised person. In this regard the learned counsel has referred to the plaint which has been verified by one Muhammad Saleem Ashraf without any endorsement or any statement in the pleading that he is an attorney.
6. ' Mr. Mansoorul Arfin, the learned counsel for the respondent has contended that this plea is not available to the appellant because as no such objection was raised in the written statement, nor any issue has been framed on it, and at this stage, without amending the written statement such plea cannot be pressed. In the title of the plaint the suit seems to have been filed through its Branch Manager, Mr. M. Saleem Ashraf. Originally the suit was filed by the Bank of Bahawalpur, but after nationalisation National Bank of Pakistan was joined as a plaintiff.
7. The learned counsel for the appellants has referred to Order VI, Rule 14 and 19, C.P.C. And Order XXIX, Rule 1 and contended that there should be a statement made in the plaint to the effect that it is being filed by a duly constituted attorney and as from record as provided by Rule 85 of Sind Civil Court Rules, there is no endorsement regarding presentation of power of attorney regarding filing the suit it is clear that M. Saleem Ashraf is not the attorney of the plaintiff and cannot file the suit. The investigation into these contentions can be made only on the basis of certain facts. The decision will rest entirely on consideration of certain facts regarding the authority conferred on M. Saleem Ashraf. In the absence of any plea to that effect in the written statement and no issue having been raised before the trial Court, the respondent did no produce any evidence to prove the authority of M. Saleem Ashraf.
8. '' Mr. Arfin, the learned counsel for the respondents has referred to Municipal Committee Shandadpur v. Junaid Khan and another PLD 1972 Kar. 507 where a Division Bench while agreeing with the contention that a point of law could be urged by a party at the appellate stage observed as follows:- "While there can be no quarrel with the general proposition canvassed by the learned counsel, we are not inclined to agree with him that the contention raised by him is a pure question of law. As observed by their Lordships of the Supreme Court-in Abdullah Khan and another v. Nisar Muhammad Khan and others PLD 1965 SC 690:-- ' A pure question of law means a question which not only does not require any investigation into facts, but which could not have been met by a plea of fact if raised at the proper stage and ordinarily it will be a good argument as against a plea being a plea of law that it could have been met by an allegation of fact ."
9. ' In this regard reference has also been made to Jiando Khan v. Hakim Muhammad Ishaq PLD 1964 Kar. 61 where it was held that the question of jurisdiction can be raised at a late stage in the proceedings even in IInd appeal. Reliance was placed on observation made in PLD 1958 Dacca 26 where it was observed that "when a question of law is raised for the first time in a Court of last resort upon consideration of document or upon facts either admitted or proved beyond controversy it is not only competent, but expedient in the interest of justice to entertain the plea".
10. From the aforestated authorities it is clear that a question of law can be allowed to be raised at appellate stage provided it does not require investigation into facts or the factual position is admitted or it depends upon construction of admitted documents. But where the decision on the question of law entirely depends upon investigations into certain facts which are not on record and if such question of law would have been raised at the earliest opportunity or by amendment, the opposite party would have had the opportunity to produce such evidence and being it on record to justify his plea, the Court will be reluctant to allow such plea to be raised at the appellate stage. In the present case, the determination of this question entirely depends upon question of fact and if it would have been raised the respondent could have produced evidence to show that M.Saleem Ashraf had the authority to file the suit. Even in these proceedings the respondent has not applied for amendment of the written statement.
11. ' Mr.Jhamat Jethanand, the learned counsel referred to Khan Iftikhar Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., PLD 1971 SC 550 where a suit was filed on behalf of the Company by a Directors Incharge of the Company who was found not to have been authorised by a Resolution passed by Company's Board of Directors as meeting of the Directors was not held after giving proper notice to all the directors. On these facts it was observed that "due notice of the meeting was not given to the deceased appellant, and therefore, the Resolution passed in the meeting of 28th September, 1951 cannot be said to be a valid one. In my opinion, no valid authority was conferred on Mr. Khursheed Mahmood and therefore, he was not competent to institute the suit". This authority of the Supreme Court is not applicable in the present case, as there arose no occasion to even make investigation whether M. Saleem Ashraf was duly authorised or not. Such objection was not taken by the appellant at any stage, and in these circumstances, it cannot be allowed to be raised or entertained.
12. ' The appellant's counsel then contended that the suit against the appellant is barred by time. First he took up the plea in respect of the appellant No,2. From the evidence it is clear that the appellant had executed a deed of guarantee on 11-4-1963. The appellant No,2 has admitted the fact that she had executed the deed of guarantee in blank, as it was brought by her husband. The terms of guarantee provided that the guarantor shall be liable to pay 2 days after the service of notice of demand. The contention of the appellant is that no notice of demand has been served. However, in that event notice shall be deemed to be from the date of filing of the suit. Similar deed of guarantee came under consideration in the following cases. 1982 CLC 1101, 1983 CLC 2444 and 1981 CLC 89. In all these cases it has been held that the period of limitation against guarantor shall run from 2 days after the service of notice. Where no notice has been served the filing of the plaint should be deemed to be noticed. In these circumstances, the suit against the appellant No,2 is within time.
13. ' Now coming to appellant No,1 it has been contended that the appellant No,1 had executed all the loan documents on 11-4-1983 and on that date he had executed a blank promissory note and delivered to the respondent. He has denied that the promissory note was executed on 28-3-1964.
14. ' Mr.Jhamat Jethanand, the learned counsel for the appellants has contended that the execution of promissory note on 28-3-1966 has not been proved as the Manager before whom it was executed was not produced and the Clerk who has deposed, is merely a chance witness, who happened to be there in the office of the Bank Manager. The appellant admits his signature on the promissory note. He only denied the fact that it was not executed on 28-3-1966. On his own admission on 11-4-1963 the promissory note was executed in blank and delivered to the respondent. Under section 20 of the Negotiable Instruments Act a blank promissory note could be filled in by the respondent within the limits prescribed by that section. The appellants have not pointed out a single instance to show that this promissory note was filled in contravention of section 20. Therefore, even if this promissory note was filled on 28-3-1966 by the respondent, it was done within the period of limitation, and having the legal authority to do so, it did not render the promissory note invalid. The additional factor is that alongwith the promissory note the appellant No,1 had also given a letter o delivery of promote Exh.36 which also bears the date of 28-3-1966. The appellant No,1 has nowhere stated that this particular letter was not signed by him on the date mentioned in it. It therefore, seems clear that the burden was on the appellant to establish that the promissory note was executed on 11-4-1963 and not on 28-3-1963 which he has failed to discharge. Suit against the appellant No,1 is within time. The learned counsel for the appellant has contended that the appellant No, is a Pardahnashin lady, but this plea has not been taken at any stage, she had appeared in Court and made statement and was also cross-examined. At this stage this plea is of no avail to the appellants.
15. ' The learned counsel for the appellants then contended that entries in the statement of account produced by the respondent are incorrect, and on that basis no decree can be passed. Mr. Arfin on the other hand contended that when the certified copy of the statement of account was produced, P.W.1 was not cross-examined with regard to interest or entries made in the statement of account, nor was any question asked about go own charges. In this regard reference has been made to the correspondence exchanged between the parties.
16. Exh.41 is a letter, dated 12-2-1964 in which the debit balance was mentioned including the interest. Again similar letter was sent on 11-4-U67 (Exh.45) claiming the debit balance of Rs,45,465.66 including interest. To this a reply was made in which it was stated that certain entries were doubtful and the appellant No,1 had asked for a statement of account. The statement of account was furnished, but no objection was raised by the appellant. The only question which requires consideration is whether interest has properly been charged by the respondent at the agreed rate. The learned counsel referred to the statement of the appellant No,1 in which he had stated that the rate of interest was agreed verbally at 61%. Relying on this statement, the learned counsel contended that the interest should have been charged at this rate. The statement by itse does not specifically prove the claim of the appellant that the rate of interest was agreed to be 61% per annum. The appellant admits to have executed the promissory note. The only thing he denies is the date of execution. Therefore, he has admitted the contents of the promissory note except the date, and the amount which according to him was filled in by the respondent later. This promissory note provides that interest shall be charged at the rate of 74% per annum, with monthly rest. This clearly establishes that the appellant had agreed to pay interest @ 74% p.a.
17. With monthly rest. The appeal is dismissed with no order as to cost.