1983 PLP 65 (CLC)

USMAN ALI SHAH, ACTG. C. J.‑The Allied Bank of Pakistan Limited, Peshawar City, (hereinafter called appellant‑bank) filed suit for the recovery of Rs. 1,15,194.52 with the interest @ 15 % from the respondent. The case set up by the appellant‑bank was that the respondent opened current account as sole proprietor of Trading Company named Messrs Aleem and Co., Chowk Yadgar, Peshawar City, with the bank on 19‑5‑1967. He was allowed over draft facility which he availed from time to time. Finally he deposited a sum of Rs. 24,000 in his account on 13‑4‑1974. At the close of the year 1976, it was revealed that the sum of Rs. 1,15,194.52 was due from him and in order to recover the same from him, he was sent notice through bank's lawyer but be did not make payment and consequently the appellant was obliged to file the present suit. The respondent contested the suit. He admitted that be bad opened account with the appellant‑bank but denied that he had to pay anything to the bank. He also raised other pleas but for the purpose of this first appeal it is sufficient to state that the learned Special Judge, Banking Companies, N: W. F. P. Peshawar who tried the suit dismissed the same on the point of limitation, vide his judgment dated 8‑10‑1981. Hence this first appeal. We have heard the learned counsel for the parties, gone through the evidence on record and perused the impugned judgments. As pointed out above the appellant‑bank claimed that the respondent had lastly deposited his account the sum of Rs. 24,000 in the bank on 13‑4‑1974. The plea taken by the respondent was that nether he nor anyone else as his authorised agent had deposited this amount in the bank on 13‑4‑1974, therefore, his further submission was that the suit of the appellant‑bank was barred by limitation as the same was not filed within three years from the date of last transaction. The learned trial Judge was impressed by this contention and in view of Article 85 read with section 20 of the Limitation Act, he dismissed the suit on the point of limitation, as mentioned above. The learned trial Judge referred to the statement of Nisar Ahmed P. W.

1. He was Sub‑Manager and Accountant in the bank at the relevant time. He stated that he bad not recognized the person who had deposited the above amount of Rs. 24,000 in the bank on 13‑4‑1974. The learned trial Judge observed that ; "According to section 20 of the Limitation Act, in proviso thereto, is that acknowledgment of payment has to be in the handwriting of or in handwriting signed by the person making it. There is no. such acknowledgment by the defendant in his own band writing or hand writing signed by him or by his authorised agent. The handwriting in which the voucher was filled for the deposit (Exh. P. W. 1/D‑1) bas not been proved to be that of the defendant or signed by him or his any authorised agent. The provision in law is very clear and not susceptible to any different interpretation. The requirement therefore has to be satisfied as it is not a mere formality, and if that be so there will be no question of limitation running out in any case, as just by depositing a small amount from own funds the plaintiff would become entitled to a fresh period of limitation. In order to guard against such hazards the provision has been made in law and it has to be obeyed in letter and spirit. There is no acknowledgment of payment made by the defendant in his own handwriting or in the handwriting signed by him or by an agent authorised by him. The payment, there fore, does not save limitation." Notwithstanding the above legal opinion of the learned trial Judge in favour of the respondent, it is clear from his judgment that he was satisfied that the amount of Rs. 24,000 would not have been deposited in the bank on 13‑4‑1974 by any person other than by the defendant or someone else on his behalf. In this respect the following passage of his judgment may be repro duced :‑ "It is a big amount and was deposited long before the expiration of limitation and no officer of the bank would be so generous as to part with a heavy amount like this for a fresh start of limitation in favour of the bank particularly at a time when there was adequate time to lodge suit, if required. The amount has also been credited into the account of the defendant and an entry is there in the account reflecting the same. From the bank funds the amount could not have been taken out for deposit in the account of the defendant with a view to saving the limitation, because there would be no way to cover the amount. It is also unclear from what account the amount was taken for the purpose of deposit in the account of defendant. These reasons weigh against the defendant." We have giving our very careful consideration to the facts and circum stances of the present case. In our view, the respondent seems to be a seasoned and. skilled man in adopting a strategy to frustrate the spirit of law against him. It is clear from the record that he was issued over‑drafts. It is also clear that frequent entries of debit were made by the bank in the name of his company. He was unable to bring on record by way of general proof, muchless authentic documentary proof, to show that he had kept the record of his account straight and clean in the bank and he could not be made liable to make any payment of debt to the bank. This position is not challenged on his behalf. Correct that Nisar Ahmad (P. W. 1), who was posted Sub‑Manager/ Accountant in the Branch of the Bank at Chowk Yadgar Peshawar at the material time, stated that he had not recognized the person who had deposited the amount of Rs. 24,000 on 13‑4‑1974 in the bank against the account number of the respondent, but in the context of the, affairs of the bank, he or for that matter, any other official of the bank, cannot be supposed to identify any and every person coming to the bank in connection with bank matters. That it was not possible for P. W. Nisar Ahmad to remember or recognize the person who had deposited the amount of Rs. 24,000 on 13‑4‑1974 in the bank against the account number of the respondent is a circumstance which does not offer violence to the senses of prudent man. After all, he is a human being and as various people come daily to the Bank in connection with account transactions, human memory should not be supposed to recognize ands remember every individual. The respondent admitted in his evidence that "it is correct to suggest that quite often I used to send my clerks/servants for the deposit of amounts in my account". He also admitted that the various documents including the specimen signatures card pertaining to his account in the bank bear the signatures of his brother Muhammad Ayub Butt. In these circumstances, according to the respondent, as various persons were to visit the bank in connection with his account transactions, it again shows that P. W. Nisar Ahmad would be unable to point out as to which person had deposited the amount of Rs. 24,000 in the bank on 13‑4‑74 against the account number of respondent, but in the circumstances of the case, he would be non else than Muhammad Ayub Butt, if he would not be the respondent himself. We will presently deal with this aspect of the case. A reference to the specimen signatures card (Exh. P. W. 1/3), pronote D (Exh. P. W. 1/4), security bond (Exh. P. W. 1/8), Confirmation letter (Exh. P. W. 1/8) reply to demand notice agreeing to pay interest on the prescribed rate (Exh. P. W. 1/9) and cheques (Exh. D. W. 1/P‑36 to Exh. D. W. 1/P‑49) will show that these documents bear the signatures of Muhammad Ayub Butt. The respondent was confronted with these documents and he admitted that the said documents bear the signatures of his brother Muhammad Ayub Butt. The relevant portions from his evidence may be reproduced :‑ ". . . I have seen the original specimen signatures card (Exh. P. W. 1/31 which bears my signature. The other signatures on the original of (Exh. P. W. 1/3) are those of my brother Muhammad Ayub Butt and my father . . . . . . . . I have seen the original charged documents, Exh. P. W. 1/4. Exh. P. W. 1/8, Exh. P. W. 1/9 and Exh. P. W. 1/5). These documents do not bear my signatures. These are, however, signed by my brother Muhammad Ayub Butt . . . . . I have seen the originals of cheques (Exh. D. W. 1/P‑?6 to Exh. D. W. 1/ 9) pertaining to my account which bear the signatures of my brother Muhammad Ayub Butt . . .". The above being the admissions of the respondent, he cannot be allowed to say that his brother Muhammad Ayub Butt was not his attorney. Muhammad Ayub Butt, the brother of the respondent, was dealing with his account matters in the bank. It is a matter of record that Muhammad Ayub Butt had many a time issued cheques for the withdrawal of the amounts from the account of the respondent and the respondent had never objected in this behalf. It clearly shows that he had authorised Muhammad Ayub Butt to act as his attorney in connection with his account transactions with the bank. It may be observed that once it is found upon the evidence on record that a third person has acted like an attorney on behalf of a person with another person, there would be no question to be agitated that he was not authorised in writing to perform the duties of an attorney. In support of this view, we are fortified by an authority reported in Hafiz Haji Mian Rehmatullah v. Sardar and others (P L D 1961 Pesh. 51); Para 5 of the said authority is relevant and it will be profitable to reproduce the same :‑ "

5. The first question for decision is whether the suit is within time. In support of his case the plaintiff‑appellant relies on the endorsement Exh. P. 3 above referred to, which recites that a sum of Rs. 290 was paid towards the amount due on the bond out of the consideration for the sale‑deed dated 11‑3‑1952, and which is thumb‑marked by Sardar Khan respondent. Learned counsel for the respondent takes his stand on section 20 of the Limitation Act (hereinafter referred to as the Act) the relevant portion of which provides that where payment on account of a debt is, before the expiration of the prescribed period, paid by the person liable to pay the debt or by his duly authorised agent, a fresh period of limitation shall be computed from the time when the payment was made. According to learned counsel Mst. Jan Sultan was not the authorised agent of Sardar Khan, and the payment consequently cannot be invoked to save limitation. This contention was accepted by the Courts below but their decision is clearly incorrect proceeding as it does on the assumption that an authorisation to pay on behalf of a debtor must be express. It is, on the contrary, well settled that an implied authority is equally binding. In National Bank of Upper India v. Bansidhor (A I R 1929 P C 297). It had been agreed between a third person and the promisor that the former would dis charge the latter's debt evidence by a promissory note to the promissee in respect of the principle and interest, and it was clear from the promisor's evidence that he left it to the third person to do so, Their Lordships of the Privy Council held that in such circumstances an implied authority from the promisor to the third person to pay the interest on his behalf as it became due was established so as to save limitation under section 20 of the Act. Another authority on the point is Brijmohan Gal v. Rudra Perkashmisser (I L R 17 Cal. 944) in which it is remarked : "It is to be observed that section 20 of the Limitation Act does not require the agent to be authorised in writing, and we think that an agent may impliedly be so authorised." In the present case, not only was the sale deed thumb‑marked by Sardar Khan as an attesting witness, but the endorsement on the bond itself is also attested by him. He must, therefore, be held to be fully aware of the payment in dispute, and there could be no clearer applied authority to Mst. Jan Sultan to make the payment on his behalf." In view of what has been stated above, we hold that Muhammad Ayub Butt had acted as an attorney of the respondent in connection with his account dealings in the appellant‑bank. " Now the preponderance of evidence leans in favour of the conclusion that the sum of Rs. 24,00U was deposited against the account number of the respondent in the bank on 13‑4‑1974 by Muhammad Ayub Butt. Muhammad Ayub Butt was not produced as witness either by the appellant or by the respondent in the trial Court. He being the brother of the respondent could not be expected to support the appellant‑bank, therefore, the appellant‑bank r wisely withheld him from producing as its witness to rely upon his evidence. As regard's the respondent, the reason that he did not produce him as witness in support of his case is not far to seek. Had he been produced by the respondent, it was very probable that in cross‑examination, he would have explicity or implicity admitted that the sum of Rs. 24,000 was deposited by him against the account number of the‑ respondent at his instance and as his attorney on 13‑4‑1974. On the view of the matter that we take, we consider that the learned trial Judge has not appreciated the evidence on record in its proper factual as well, as legal perspective. Had he given proper care and attention in this behalf, he would have come to the conclusion that Muhammad, Ayub Butt, theta brother and as the attorney of the respondent, had deposted the amount of Rs. 24,000 in the bank against his account number on 13- 4-1974 and as the present suit was filed on 24‑1‑1977, it was within the period of limitation. As a result, we accept this appeal and remand, the case to the learned trial Judge with direction to decide the case on other issues on merit and in accordance with law after hearing the parties. Under the circumstances, the costs of these proceeding will be borne out by the respondent. S. A. H. Appeal accepted. Case remanded.