1. This suit was filed for the recovery of Rs.75,357.31 against the defendants praying for judgment and decree against the defendants for the said sum with interest at 13 per cent per annum from the date of filing of the suit till realisation, costs and any other relief which the Court deems fit and proper. Under the circumstances of the case.
2. The brief facts as per plaint are that the plaintiff is a banking company having its branch office at Timber Market, Karachi. The defendant No. l is a partnership firm and defendants Nos.2 to 4 are its partners. The defendants had opened a C.D. Account No.752 with the plaintiff's above branch and on their request on or about 1-6-1969, were allowed accommodation by way of Over Draft to the limit of Rs.25,000. The said amount was utilized by the defendants and they deposited various amounts towards the repayment of the same. As security for the repayment of the said amount the defendants executed and delivered to the plaintiff a D.P. Note dated 1-6-1969 for a sum of Rs.25,000 with interest thereon at 4 per cent. Above the published State Bank of Pakistan rate with minimum of 9 per cent. Per annum with monthly rests. The defendants also executed and delivered two debit balance confirmation slips dated 30-6-1969 and 30-12-1969. On 8-5-1972 the defendants further executed a Demand Promissory Note dated 8-5-1975 for a sum of Rs.70,000 with interest thereon at 4 per cent. Above the published State Bank of Pakistan rate with minimum of 9 per cent.
3. Per annum with quarterly rests. On 30-6-1975 an amount of Rs.75,357.31, inclusive of interest was outstanding against the defendants and as such a legal notice of demand dated 2-1-1974 was served on the defendants. But the defendants failed to repay the outstanding dues of the plaintiff and as such the present suit was filed on 26-7-1975.
4. Summons of the suit were issued against the defendants which were duly served and the defendants filed their written statement on 25-2-1976 denying the promissory notes as valid promissory notes and the interest entered therein and the correctness of the statement of account submitted by the plaintiff.
5. On the basis of the pleadings of the parties the issues were first adopted on 16-8-1976 and thereafter, issues were re-framed and adopted on 11-2-1993, which are as follows:
(1) Whether the defendants executed a Demand Promissory - Note on 1-6-1969 in favour of the plaintiff agreeing to pay to the plaintiff on demand a sum of Rs.25,000 with interest thereon at 4% above the bank rate with minimum of 9 % per annum with monthly rests?
(2) Whether the Promissory Note executed on 1-6-1969 by the defendants is not a valid document, if Issue No. l is proved?
(3) Whether the defendants executed and delivered to the plaintiff on 30-6-1969, debit balance confirmation slip acknowledging liability of Rs.75,357.31?
(4) Whether the defendants executed another Demand Promissory Note on 8-5-1972 in favour of the plaintiff agreeing to pay to the plaintiff on demand or on his order Rs.70,000 with interest thereon at 45 % above the bank rate with minimum of 9 % per annum with monthly rests?
(5) Whether a total amount of Rs.75,357.31 was due from the defendants to the plaintiff by 30-6- 1975?
(6) Whether the suit is time-barred?
(7) Whether the defendants deposited Rs.50,000 in account for the plaintiff?
(8) Whether debt of Rs.10,966.72 in account of the defendants is wrongful?
(9) Whether the suit is not properly filed?
(10) What should the decree be?"
6. Evidence in support of the plaintiff's case was given by Abdul Samad Manager of the plaintiff's bank while the defendant did not lead any evidence.
7. I have heard both the counsel and have considered the pleadings and evidence recorded and my findings on the issues are as under:--- '
8. Issues Nos. l and 2 The suit, is based on promissory note and other documents the copies of which were filed alongwith the plaint and the original documents were filed subsequently after the settlement of .The issues. Abdul Samad the P.W.1 has stated in his examination-in-chief that he was the Manager of Timber Market Branch in the year of 1988 and he was giving evidence as per the record. He stated that the defendant was granted overdraft facility to the extent of Rs.25,000 which he had availed fully and in consideration of this facility the defendant had executed promissory note dated 1-6-1969 as security for re--payment of the loan. He also confirmed that the defendant had executed the two confirmation slips dated 30-6-1969 and 30-12-1969, confirming the outstanding amounts mentioned therein. The original documents were produced by the witness during the Examination-in-Chief. Mr. Kazi the learned counsel for the defendant raised objection to the production of the same on the ground that the documents were not produced at the time of filing of the suit. The record shows that the copies of Exhs. 6 and 9 and certified copy of Exh.9 were filed alongwith the plaint and the original documents were filed alongwith the list of documents after the settlement of issues. As such the objection if any to the production of these documents cannot be sustained. The signature on the promissory note has not been denied as such by the defendant in his written statement. The only plea that has been taken in the written statement is that the said promissory note in not a valid promissory note and as such the defendant is not liable to pay interest on the said document. The defendant did not lead any evidence and there is nothing in rebuttal to the claim of the plaintiff. Mr. Iqbal Kazi the learned counsel for the defendant contended that the statement of account does not reflect the amount of Rs.25,000 for which the Demand Promissory Note was executed. There is no contention that the amount of Rs.25,000 was withdrawn by the defendants at one operation but it was the total overdraft facility which was provided by the plaintiff to the defendant. As such in my opinion the defendant did execute the said promissory note for Rs.25,000 with interest thereon at 4% above the bank rate with minimum of 9 % with monthly rests. Since my answer to issue No. 1 is in affirmative the answer to issue No.2 is also in affirmative on the reasons given herein above. Once the signature on the Demand Promissory Note is held to be that of the defendant, there seems to be no prima facie defect in the document.
9. Issue No.3 Is in regard to the execution and delivery of debit balance confirmation slip dated 30-6-1969 for an amount of Rs.75,357.31. In para. 6 of the plaint debit confirmation slip dated 30-6-1969 is mentioned. Para. No.2 of the written statement simply denies the contents of para. 6 of the plaint.
10. The debit balance confirmation slip dated 30-6-1969 is Exh.7. It mentions and confirms the debit balance of Rs.7,015.62 as on 30-6-1969 and not Rs.75,357.31. The certified copy of statement of account was filed alongwith the plaint. It also confirms the amount of Rs.7,015.62 which entry is in red ink indicating it to be the debit balance. My finding on this issue is to the extent that it confirms Rs.7,015.62 as on 30-6-1969 outstanding against the defendants.
11. Issue No.4.
12. The execution of the Second Promissory Note dated 8-5-1972 for an amount of Rs.70,000 has also not been admitted by the defendant stating that the same is not a valid promissory note and that the defendants are not liable to pay interest as alleged. This document has also been produced in original by the P.W.1 and exhibited as Exh.9 and the statement of account has been exhibited as Exh.10. The promissory note shows an amount of Rs.70,000 outstanding as on 8-5-1972. I have seen the statement of account. The first entry for the year 1972 is on 20th March: There is no debit balance till 28-12-1972 when a debit balance of Rs.48,744.97 is shown. Mr. Feroze Allana could not explain this anomaly. No question was asked in this regard by Mr. Iqbal Kazi. As such the demand promissory note dated 8-2-1972 for Rs.70,000 cannot be held to be a valid document. Answer accordingly in negative.
13. Issue No.5 While arguing the case, Mr. Feroze Allana conceded that the outstanding amount as on 30-6-1975 against the defendants is Rs.48,744.97 and not Rs.75,357.31. No explanation has been given as to how this figure has been arrived. However, this is the amount outstanding as on 28-12-1972, according to the statement of account. As such my finding to this issue is in negative.
14. Issue No.6 This issue was not passed by Mr. Iqbal Kazi, the learned counsel for the defendant.
15. Issues Nos.7 and 8.
16. While replying to the contents of the plaint the defendant in para 8 of the written statement submitted that the plaintiff has not given credit of Rs.50,000 deposited through Cheque No.CAW=960505 and further that a sum of Rs.10,966.72, has been wrongly shown as withdrawn by the defendants. P.W.1 produced the photo copy of this cheque as Exh.11 and of deposit slip as Exh.12.
17. He stated in his deposition that the said cheque was deposited in the account of the defendants on 7-3-1970 and the corresponding debit entry was made in cash credit account. The same original cheque and deposit slip was produced as Exhs.Nos.l6 and 17 respectively. In his cross- examination he admitted that a cheque of Rs.50,000 was deposited by the defendant No.1 on 4-2- 1970. Again he stated that the credit of the said amount is shown on 6-3-1970 .In Exh.10 which is the statement of account. He changed his version again stating that the account number was changed and that the said amount was adjusted against another liability in cash credit account of defendant No.1. I asked Mr. Feroze Allana during the arguments if the defendants were maintaining any other account with the plaintiff and his reply was in negative. Considering that no other account was being maintained by the defendant the cheque, as is clear from the deposit slip book was admittedly deposited by the defendant in Account No.7521 with the plaintiff. The cheque and the deposit slip both are dated 4-7-1971 but the PWA pointed out its entry on 6-3-1970. This version of deposit of an amount being credited a year earlier is absolutely unbelievable. Further, that the witness changing his statement in cross-examination when admittedly no other account was being maintained by the defendants makes it more suspicious and discredits the deposition in this regard. It established clearly that the said amount was deposited on 4-2-1971 with the plaintiff for which no credit was given to the defendant.
18. Mr. Iqbal Kazi the learned counsel for the defendant did not press the issues Nos.8 and 9. Order accordingly.
19. The end result based on the evidence and arguments led by the parties and my findings on the issues is that no amount is outstanding against the defendants to the plaintiff and as such the suit is dismissed with no orders as to costs.