' This suit has been filed by the plaintiff for recovery of Rs,2,51,116.33 against the deceased defendant Nisar Ahmed.
The case of the plaintiff is that the said deceased defendant had an account with the Bank of Bahawalpur Limited Central Branch formerly known as Exchange Branch, Karachi; and that after amalgamation of the Bank of Bahawalpur with the present plaintiff, the plaintiff is now entitled to receive the amount due from the defendant to the former Bank of Bahawalpur Limited. It is further in the plaint that on 4-4-1963, the deceased defendant was allowed an overdraft limit of Rs,1,65,000 by the said Bank, which was utilised by him from time to time and as a security for re-payment of any dues, which may be found due against him, the defendant pledged with the said Bank 33,320 shares of Usmania Glass Sheet Factory situated at Chittagong. It is further contended in the plaint that the defendant by his writings on various dates, lastly 8th September, 1971 acknowledged his liability and promised to pay the dues but he failed to honour his commitment; and that as the Factory is located in Bangladesh its shares are unsaleable in Pakistan and, therefore, the present suit was filed on 23-8-1974.
' The deceased defendant filed his written statement wherein he admitted the overdraft facility, pledging of the shares of the said Factory with the Bank. The defendant, however, urged that the Bank had obtained his signatures on blank forms which he did in good faith. It was further pleaded by the defendant that it was sheer negligence on the part of the Bank that it did not dispose of the shares for discharge of the loan at the time when the said shares had a market value. The defendant further pleaded that the principal amount had since been re-paid by him and it is now only the amount of interest and compound interest, which is alleged to be due. A further plea was taken that the suit was barred by limitation.
' On the above said pleadings of the parties, the following issues were framed;
(1) Whether overdraft facility was allowed at the rate of 6% of interest to be charged?
60. Whether the defendant was made to sign blank documents by the Manager of plaintiff Bank? If so, what were these documents?
61. Whether the writings mentioned in para.4 of the plaint were of the defendant?
62. Whether the suit is time-barred?
63. Whether the amount of Rs,2,51,116 is due from the defendant to the plaintiff?
64. What should the decree be?
The defendant Nisar Ahmed in the meanwhile expired and his legal heirs, the present defendants Nos.1 to 4 were brought on record.
' The plaintiff examined only their officer Gul Muhammad Qureshi, who produced various documents and was also cross-examined, The defendants did not examine any witness nor they produced any document in the case. ISSUE NO.1: On this issue, the plaintiff has produced letter of Lien for advance against shares, stocks and securities (Ext.6) which shows the rate of interest to be 9% per annum. Except for this document, there is no other document brought on record to show as to what was the rate of interest. The burden lies on the plaintiff to prove the rate of interest to be 9% or to be 10-1/2% as claimed in the prayer clause of plaint. It may also be observed that in the plaint, no rate of interest has been mentioned. The letter (Ext.6) is dated 1st March, 1966, which is almost 3 years after the date (4-4-1963) when the alleged overdraft facilities.Is said to have been allowed to the defendant. Moreover, this No,9 on second page of Ext.6 shows that something had already been typed, which has been erased and No,`9' has been typed over it. The inference from these erasings would be that this No,`9' was subsequently typed and, therefore, there being no other corroborative proof of the rate of interest, I am inclined to hold that the plaintiff has failed to prove as to what was the rate of interest, specially when no original documents of granting of overdraft facility had been produced by the plaintiff. In these circumstances, there is no other option but to accept the submission of the defendant that the rate of interest was settled at 6%. The issue is accordingly answered in affirmative.
ISSUE NO.2: The defendant in this written statement has admitted the signing of the documents pertaining to Letter of Lien and Guarantee for advance, which have been produced as Exts. 6, 7 and
8. Of these letters Ext.6 is the letter admittedly signed by the deceased defendant Nisar Ahmed. In these circumstances, the effect is that the deceased defendant and now his legal heirs are liable for the same. Reliance is placed on the case of Messrs United Bank Ltd. v. President, Bazme Salat and another (PLD 1986 Kar. 464). In the cited case, it was observed that where a blank document is signed and given then the holder of the said document will have the authority to fill the same, which authority could be exercised by him within a period of 3 years from the date' of delivery; and that the right to complete inchoate document is a statutory right without any restriction and could be completed even after the death of executant. In view of above, I am inclined to hold that the said document Ext.6 shows that a liability for the overdraft facility have been enjoyed by them.
ISSUES NOS. 3 & 4: The plaintiff in his plaint in paras.3 and 4 has mentioned' certain correspondence by the deceased defendant, whereby he has undertaken to repay the liabilities. This correspondence have been produced in form of various letters, which shows that the deceased defendant had admitted his liability and had been seeking for extension of time from the plaintiff to settle the dues. The last letter in the series of correspondence is dated 8th September, 1971, which has been produced as Ext.13/19. Mr. Azhar All Siddiqi, learned counsel for the defendant has submitted that the defendant has denied to have written these letters. These letters are said to have been signed by the deceased defendant Nisar Ahmed and a look at his signatures on these letters compared with his admitted signatures on Ext.6 and written statement would show the similarity of his signatures beyond any reasonable doubt. In view of his acknowledgement of liability in his last letter written on 8-9-1971, the present suit having been instituted on 28-3-1974 is within time. I would, therefore, answer these issues against the defendant.
ISSUE NO. 5:The burden is heavily cast on the plaintiff to prove this issue. As regards the defendants, Mr. Azhar Ali Siddiqi, learned counsel for the defendants has stated that at the time of death of the defendant Nisar Ahmed, his sons, the present defendants Nos.2 to 4 were minors and had no knowledge of any affairs of their father and the defendant No,1, the widow of deceased defendant Nisar Ahmed, being a Pardahnasheen lady too was not aware of the business dealings of her late husband. It is for these reasons that the defendants could not examine any evidence. However, the plaintiff has produced the statement of account as Ext.14. This statement of account shows the entries, both withdrawals and deposits, from 2-4-1963 till 23-8-1974 and a debit balance of Rs,2,51,116.33 is shown to be outstanding against the defendant. Mr. Azhar All Siddiqi, learned counsel for the defendants has referred to the cross-examination of plaintiff's witness, who has admitted that on 10-8-1967 and on 19-8-1967 there are two entries in deposit cloumn of Rs,57,333.34 and Rs,28,166.66 respectively. He further admits that these entries are on account of transfer of certain shares out of pledged to N.I.T. At request of the defendant. The said amount pertains to 15000 shares out of the pledged shares. The learned counsel for the defendant has further referred to the letter's written by the plaintiff to Messrs Sheriar F. Irani, the broker, for transfer of the shares of defendant Usmania Glass Sheet Factory in the Bank's name. These letters are dated 23rd April, 1968 for 30800 and 23,320 shares. These letters are produced by the plaintiff's witness as Exts.15 and 16 respectively. This witness has also produced two receipts as Exts.17 and 18 showing that an amount of Rs,2,097.65 and Rs,2,772 had been paid to the above said broker as Commission. Mr. Azhar All Siddiqi, has then referred to cross-examination of the plaintiff's witness, who has admitted that in April, 1968 the said share broker was called upon to get the transfer in the name of Bank of Bahawalpur the shares of Usmania Glass Sheet Factory as stated above. This witness has further stated that these shares were transferred in the name of the Bank by Usmania Glass Sheet Factory; and that the charges paid in this respect to the broker have been debited.To the account of the deceased defendant, which fact is also supported by entry in the statement of account (Ext.14) showing that cost of stamps were paid to Sheriar F. Irani. The above facts show that in April, 1968, the plaintiff had got the said shares transferred to their name and there is nothing on the record to show as to why the plaintiff failed to sell the said shares in the market at that time when they had a market value and were saleable. The fall of Dhaka came in November, 1971 which is about 3 years and 7 months after the above said transfer of shares but yet the Bank had not taken steps in this behalf. In these circumstances, the defendants are entitled to adjustment of the market value of these shares against their liabilities and the plaintiff will, therefore, be entitled to recover only the amount after adjustment of the value of those shares, if any, such amount is left outstanding. The interest charged by the plaintiff will also be reduced in proportion to the said amount. From the above discussion, it can be concluded that the plaintiff has failed to prove that the amount of Rs,2,51,116 is due from the defendants to the plaintiff. The defendant has in his written statement pleaded that the said shares became valueless or unsaleable on account of negligence of the Bank, who did not sell the same within due time. In these circumstances, the loss, if any, sustained by the Bank appears to be on account of their negligence as they had been sitting over the said shares. The learned counsel for the plaintiff has referred to the correspondence mentioned in para.4 of the plaint and has submitted that whenever they wanted to sell the said shares, it was the defendant, who asked them not to sell the said shares. Amongst the correspondence mentioned in para. 4, only two letters pertain to the period after April, 1968, the date when the shares were transferred in favour of the Bank. These are letters dated 24-4-1969 and 8-9-1971. These letters are produced as Exts.13/13 and 13/19. In these two letters, the deceased defendant had asked for further time to adjust his liabilities but these letters do not mention if he had requested the plaintiff not to sell the shares. I would, therefore, answer this issue against the plaintiff to the effect that the plaintiff has failed to prove this issue.
ISSUE NO.6: In view of findings on issue No,5, the suit is dismissed with no order as to costs.