1. ' The plaintiff has filed this suit against the defendants for recovery of Rs,1,27,510.96. The case of the plaintiff is that on or about 26-4-1975 the plaintiff allowed to the defendants overdraft facility to the extent of Rs,1,34,782.33 and to secure repayment of that amount, the defendants executed and delivered to the Plaintiff various documents including a Promissory Note, Deed of Hypothecation and an Irrevocable Power of Attorney, and also mortgaged their property by deposit of title deeds.
2. Since the defendants failed to repay the amount of the overdraft, the plaintiff filed this suit claiming Rs,1,28,510.96, as shown in the statement of account. The defendants filed their written statement admitting, in para. 3 thereof, that "the plaintiff allowed overdraft facility to the defendants to the extent of Rs,1,34,782.33". The defendants, however, alleged in para. 7 of the written statement that after proper accounting nothing will be found due. Several other pleas were taken in the written statement and consequently the following issues were settled:---
(i) Whether signatures of the defendants were obtained on various documents by the plaintiff and the contents of these documents were neither read over nor explained to the defendants who do not know English language?
(ii) Whether the defendants have suffered loss in business as stated in para. 5 of Written Statement?
(iii) Whether after proper accounting nothing will be found payable and due by the defendants to the plaintiff?
(iv) Whether the defendants' Fishing Boat Zulfiqar is worth Rs,80 to 90 thousand and Godown is worth Rs,2 Lacs?
(v) Whether the claim of the plaintiff is time-barred?
(vi) Whether the suit of the plaintiff is not maintainable as no address for service has been given?
(vii) Whether the suit is bad under section 69 of Contract Act and is not maintainable?
(viii) To what relief, if any, the plaintiff is entitled?
2. The plaintiff examined Khalid Ahmed, Exh.5 and Shaikh Salahuddin Shami, Exh.11. The defendants did not produce any evidence and consequently their side was closed on 27-11-1991.
3. I have heard the arguments of Mr. Gulzar Ahmed, the learned counsel for the plaintiff. The defendants and their counsel have remained absent. My findings on the issues are as follows:-- ISSUES NOS.1 AND 2.---The burden of these issues was on the defendants and they have failed to produce any evidence.
3. ISSUE NO. 3.---This issue relates to the amount claimed by the plaintiff in the suit and arises from the plea of the defendants in their written statement. The plaintiff's .witness Khalid Ahmed has produced a statement of account as Exh.8. That statement of account was not challenged in cross-examination. The issue is, therefore, decided in the nagative.
4. ISSUE NO.4.---This issue, "whether the defendants' Fishing Boat Zulfiqar is worth ks.80 to 90 thousand and Godown is worth Rs,2 lacs", is not relevant to the claim of the plaintiff in the suit and the liability of the defendants. In any event, the burden was on the defendants who have failed tq produce any evidence. The issue is, therefore, decided in the negative.
5. ISSUE NO.5.---According to the plaint and the evidence of the witnesses of A the, defendants, an overdraft facility was granted on 26-4-1975 and all relevant documents which have been produced by the witness, Shaikh Salahuddin Shami, were also executed on the 26th April, 1975. No question was put to those witnesses with regard to the date of the overdraft or date of the execution of the documents. In fact, the allegations in para. 3 of the plaint that the overdraft was granted on 26-4-1975 has been admitted in the written statement. The suit which was filed on 5-5- 1976 is, therefore, not barred by limitation.
6. ISSUE NO.6.---This issue arises from the plea in paragraph 11 of the written statement that the address for service has not been given as required by law. Mr. Gulzar Ahmed points out that the address for service has been filed with the plaint and is on record. The issue is, therefore, decided in the negative.
7. ISSUE NO.7.---This issue does not arise simply because the suit has not been filed by the partnership firm or its partners but against them. Section 69 of the Partnership Act is, therefore, not attracted in this case.
8. ISSUE NO.8.---In view of the findings on the above issues and in view of the evidence on record, the plaintiff is entitled to the relief claimed in the suit. However, as mortgage of immovable property pleaded in para. 4 of the plaint has not been proved, no mortgage decree can be passed. Mr. Gulzar Ahmed says that he would be satisfied if money decree is passed against the defendants.
9. The suit of the plaintiff is, therefore, decreed against the defendants jointly and severally for Rs,1,28,510.96 with interest thereon at the rate of 13% per annum from the date of the suit till realization and costs of the suit.