' QAZI HAMIDIJDDIN, J.---This appeal under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 is directed against the judgment and decree, dated 30-3-1987 of Special Judge, Banking Companies, N.-W.F.P., Peshawar whereby the plaintiff-appellant's suit for the recovery of Rs,6,37,928.12 together with interest at the rate of 14% was dismissed.
2. The facts of the case succinctly stated are that the appellant filed. a suit in the Court of Senior Civil Judge, Peshawar for recovery of Rs,6,37,998.12 against the respondent or the allegations 'that the defendant-respondent is a Timber Merchant and carries on his business under the Style of Messrs Sardar Gul Masood Ahmad, Timber Merchants, G.T. Road, Peshawar which is a sole proprietorship business of the defendant. The defendant-respondent had and still has a Current Account bearing NoAC-1609 with the plaintiff-Bank at its Chowk Abraham Gran Branch, Peshawar City which he is operating under his own signature. A true and correct copy of the statement of account of the defendant duly certified under the Banker's Books Evidence Act is annexed evidencing the deposits made ' by the defendant into his account and withdrawals of money by him from his said account during the course of his business with the plaintiff-Bank. At the request of the defendant, the plaintiff-Bank afforded overdraft facility to him which he promised to repay on demand with interest @ 13% per month. The defendant also executed the securities in favour of the plaintiff-Bank in the shape of personal Guarantee by the defendant-respondent, Promote, Hypothecation Deed of stocks in defendants God owns and Mortgage of his property. The defendant duly utilized the overdraft/loan facility allowed to him by the plaintiff-Bank and thereby his account has become current, open and mutual account. The defendant last deposited an amount of Rs,4,01,849.62 into his account on 3-5-1975 against overdraw of Rs,8,06,849.62 outstanding in his account then i,e, on the mentioned date. According to the plaintiff-appellant's Books, a sum of Rs,6,37,928.12 is outstanding against the defendant-respondent inclusive of usual Bank interest as on 13-4-1978 which he has failed to repay.
3. The suit was contested by the defendant-respondent by filing written statement. The important points in the written statement are that the suit is barred by limitation, that the plaintiff-Bank claims having been finally settled and the balance due amounting to Rs,405,000 having been duly paid on 13-3-1975 and there being nothing due against the defendant, the present suit is frivolous and vexatious and is liable to be dismissed as such. That the plaintiff-Bank has committed fraud by charging interest at the rate higher than allowed under the State Bank rules. The plaintiff-Bank account being fictitious and false, the suit is liable to be dismissed. That the plaintiff-Bank has also debited the defendant with Rs,32,675 from October, 1970 to January 1974 on account of insurance charges without having actually insured the stocks. In fact there were no stocks to be insured. On merits para. 4 of the plaint was stated to be incorrect, and it was alleged that the defendant- respondent has inherited the Timber business alongwith its assets and liabilities and the business stood wound up by the end of 1973/74. Para. 5 of the plaint was also denied. It was averred that para. 7 of the plaint as framed is wrong and incorrect and denied in every detail. The overdraft facility was not allowed to the defendant but was in fact allowed to his father. However, defendant's undertaking was obtained subsequently in 1973 by the then Manager of the plaintiff-Bank on the basis of gross misstatement of facts. The defendant is not liable on account of the fraud played upon him. It was also averred in the written-statement that the defendant did not deal with the plaintiff-Bank after 13-3-1975 except for the letter dated 21-3-1975 which was sent to point out the discrepancies in the account maintained by the plaintiff-Bank. The defendant had last deposited Rs,4,05,000 on 13-3-1975 and the plaintiffs assertion regarding a different amount alleged to have been deposited on 3-5-1975 is a false fabrication for avoiding the limitation period. It is also incorrect that the amount due was that mentioned by the plaintiff. The exact amount due was not more than the one deposited by the defendant through a Fixed Deposit Receipt on 13-3-1975. A rejoinder was filed by the plaintiff-Bank wherein it was stated that a sum of Rs,405,000 was credited to the defendant's account after the collection of the proceeds of his cheque from Drawee's Bank and the defendant's account was still on the debit side. The settlement of account by the defendant with the plaintiff was also denied. The contention of the defendant in para 6 was also stated to be baseless and strongly repudiated.
4. Arguments heard and record perused.
5. The learned counsel for the Bank while discussing Issue No,1, inter alia, asserted that there is a presumption of truth available under section 4 of the Bankers' Books Evidence Act regarding the entries in the account which, according to him, are prima facie proof of the original entries. This assertion is refuted by the provision of law referred to by the learned counsel for the respondent.
While discussing the import of the said provision of law, the Supreme Court in a case "Muhammad Siddiq v. Australasia Bank Limited PLD 1966 SC 684" held that it did not purport to give the certified copy any greater efficacy than the original itself. The Court further observed that we must not also confuse between admissibility in evidence and sufficiency to charge with liability. It is with the latter that we are concerned here and this is not dealt with by the Bankers' Books Evidence Act (pages 698 and 699). Under section 34 of the Evidence Act, entries in books of accounts regularly kept in the course of business, are relevant but not sufficient to charge any person with liability. It is an admitted fact that the entries made by the plaintiff-Bank were disputed by the defendant/respondent as far back as in 1974-75 and this dispute has been confirmed by the Bank.
Malik Muhammad Khalid (D.W.3), a Senior Executive of the Bank has not only confirmed this fact but has conceded that the plaintiff-Bank was obliged to stop charging interest from April, 1975 and an order in this behalf was issued by the Head Office of the Bank to the plaintiff. The defendant/respondent's case is that the matter was sorted out and he had paid the entire balance due amounting to Rs,4,05,000 to the Bank. The Bank has admitted payment of Rs,4,05,000 but it has asserted that this was only a part payment. In order to verify the contradictory statements made in this case, we may refer to the statement of account Exh.P.W.1/2. According to this Statement the total amount drawn by the defendant/respondent from the plaintiff-Bank comes to Rs,8,60,000 approximately upto 21-3-1975 and the total amount paid by the defendant to the Bank up to the said date was Rs,5,49,000 approximately leaving the balance of Rs,3,20,000. The defendant paid Rs,4,05,000 to the Bank on 3-5-1975 according to the Bank's own statement which has been confirmed by the two witnesses appearing for the Bank. This evidence available on the record is sufficient to prove the falsity of the statement prepared by the Bank in this case. Besides Nisar Ahmad Qureshi (P.W.2) when asked to submit the break up of the amount shown in the statement of account Exh.P.W.2/1, (he) has made a statement to the effect: "I have brought the statements showing break-up on penal interest, insurance charges and the salary charges as also the interest charged on the defendant's account. Copies of the statements are Exh.P.W.2/1, Exh.P.W.2/2, Exh.P.W.2/3, Exh.P.W.2/4 and Exh.P.W.2/5. These documents have been correctly prepared from the record of the Bank shown to me by the Branch Manager of the Bank. It is correct that the interest imposed and charged against the defendant amounts to Rs,5,54,073.46 and penal interest amounts to Rs,20,420 which is in addition to the normal interest. The insurance charges included in this account charged from the defendant amounts to Rs,15.754 and the salary charged is Rs,12.800. All these items put together amount to Rs,6.03,047.46. It is correct that the total claim of the bank against the defendant is of Rs,637.928.12."
' A presumption will be that the statement of account Exh.P.W.1/2 is incorrect as contended by the defendant-respondent and that the plaintiff-Bank has been charging excessive interest unauthorized at a much higher rate. The learned counsel for the appellant: plaintiff-Bank in his reply to the defendant's notice under Order XXII, Rules 2 and 4, C.P.C. Had admitted the Bank rate of interest in force at the relevant time but has asserted that the scheduled Banks were permitted to charge 4% above the State Bank rate. No document or authority in this behalf has been placed on the record nor has it been produced in evidence by the plaintiff-Bank. Under the circumstances, the defendant's contention of excessive levy of interest and the consequent falsity of the account stated by the bank stands proved, disentitling the appellant/plaintiff Bank to claim the suit amount.
Under Article 129 of Qanun-e-Shahadat, 1984, the Court inter alia may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. This provision of law read with the Court's observations made in the course of recording statement of Nisar Ahmad Qureshi (P.W.2) would lead to the only conclusion that the statement of account Exh.P.W.1/2 and the oral assertions made by the plaintiff's/appellant's witnesses were factually incorrect and are not to be relied upon.
6. Again reverting to the statement of Nisar Ahmad Qureshi (P.W.2), we find that after deducting the amount of interest viz. Rs,5,54,073.46 and the penal interest illegally charged amounting to Rs,20,420 along with Insurance charges of Rs,15,754 and the salary of Chowkidar amounting to Rs,12,800 the balance due from the defendant comes to Rs,34,900 approximately. It is pertinent to note that the witness did not state anywhere that the above-quoted amount of interest and the penal interest were in respect of the entire period from 1970 up to 1978. So, the argument that the said interest was for the entire period of 8 years is not supported by any evidence on record. The fact remains that the witness had produced the brake-up of the plaintiff-Bank claim of Rs,6,37,928 in this suit. Giving it any other meaning will be misreading of evidence and misinterpretation of the clear statement of the said witness.
7. The law regarding the charging of penal interest as laid down in "National Bank of Pakistan v. Ch. Ilam Din & Co." PLD 1985 Lah. 177 forbids such a charge without an agreement to this effect made between the parties through an express contract which is not available in this case. The appellant/plaintiff-Bank had absolutely no authority to charge the penal C interest. This again proves that the statement of account Exh.P.W.1/2 is factually incorrect. Once it is proved that the statement of account is wrong and incorrect, the plaintiff Bank's suit fails and is liable to be dismissed on this count alone. The appellant/plaintiff-Bank not having come to the Court with clean hands, is not entitled to any relief under the law. It may also be noted C that the appellant/plaintiff-Bank has failed to produce any insurance papers in this Court. So, the alleged Premium of Rs,15,754 charged on account of insurance of the defendant's stock is to be disallowed.
Similarly, there is no account of the salary of Chowkidar. Therefore, the amount of Rs,12,800 regarding the alleged salary is also to be disallowed. It may also be pointed out that the interest for the period of March 1975 upto the time of institution of this suit according to Exh.P.W.2/4 comes to Rs,2,17,262. This amount is to be deducted from the total claim made by the plaintiff in this suit viz. Rs,6,37,928. The balance comes to Rs,4, 20,166. Out of this amount the aforementioned penal interest, insurance charges and Chowkidar salary are to be deducted. Thus the balance would come to Rs,3,70,000 approximately. If we take into consideration the total amount paid by the defendant in March, 1975 which was adjusted on 3-5-1975 amounting to Rs,4,05,000, it will be found that the defendant/respondent owed nothing to the plaintiff-Bank, particularly so when the Court takes into consideration the difference of the interest charged in excess by the plaintiff-Bank amounting to Rs,1,24,365 which difference has again been admitted by the learned counsel for the plaintiff-Bank in his reply dated 26-1-1981. Initially the plaintiff-Bank evaded reply to the aforesaid Notices but had ultimately submitted a reply on 16-3-1981 in which the rate of interest cited by the defendant was admitted to be correct, and the plaintiff has not produced any authority from the State Bank of Pakistan allowing them to make an excessive charge. Under the above circumstances, it has been proved beyond any doubt that the statement of account submitted by the plaintiff-Bank and exhibited as P.W.1/2 is absolutely wrong and incorrect and that the defendant/respondent contention that he has already made the full payment is quite correct.
8. For the foregoing reasons, this appeal fails and dismissed accordingly.
' The above are the reasons in support of our short order, dated 28-2-1994.