1990 PLP 1045 (CLC)

(2) Did the Dacca Branch of the defendant No.l upon instructions of the plaintiffs remit to the Bundcr Road Branch of Defendant No.l at Karachi three or any sums of money as alleged in para 3 of the plaint? (3) Did the defendant No.l at Karachi receive any of the alleged telegraphic messages and/or remittances from Dacca? (4) Are the defendant No.l not liable to pay the amount claimed by the plaintiffs at Karachi upon the grounds or any of them pleaded in paragraph 3 of their written statement? (5) Are the plaintiffs estopped from demanding the amounts in suit from the defendant No.l because of their failure to raise objection on reversal of entries and receipt of debit vouchers? (6) Whether cause of action, if any, arose at Dacca and not at Karachi. (7) Whether the defendant No.2 is not a necessary or a proper party? (8) Whether the suit is barred by limitation? (9) Whether the plaintiffs are entitled to any relief? If so against which defendant? (10) What should the decree be? ISSUES Nos. 1 5 and

8. These issues arc not pressed by the learned counsel for the parties. ISSUES Nos. 2. 3 and

4. These are connected issues. Mr. Hamza

1. Ali, learned counsel for the defendant No.1 has submitted that the burden to prove the said issues lies on the plaintiffs and that the plaintiffs have failed to prove the same as they have not examined any of the witnesses from their own office at Dhaka or from Dhaka office of defendant No.l. He has further submitted that the plaintiffs have also not produced the oral receipt vouchers showing the deposit of the said amount in the Dhaka Branch of the defendant No.l or any vouchers. He has further submitted that the plaintiffs have not produced any evidence to show that factually the alleged amounts were transmitted from Dhaka to Karachi. He has further submitted that the local witness examined by the plaintiffs cannot be said to be competent to prove this fact. It is also submitted by the learned counsel that the plaintiffs have not produced their own accounts books. He has further submitted that the first two amounts said to have been telegraphically transferred on 3‑12‑1971 and 6‑12‑1971 amounting to Rs.2,50,000 and Rs.2,00,000 respectively were credited in the plaintiffs' account at Karachi on oral instructions as they are valued clients of the defendant No.l but the same was reversed on 7‑12‑1971 and 16‑12‑1971 as no such transfer was received by that time from Dhaka office of the defendant No.L Learned counsel for the defendant has also pointed out that no intimation was received with regard to 3rd amount of Rs.2,50,000 said to have been transmitted telegraphically on 9‑12‑1971 and no such credit entry was made in the credit account of the plaintiffs. It is also submitted that mere entries in statement of account are not sufficient to prove the facts stated therein. He has placed reliance on Article 48 of the Oanun‑e‑Shahadat and has further placed reliance on the cases of M/s. Muhamad Siddiq Mohammad Umer v. Australasia Bank Ltd. (P L D 1966 SC 684) and the case of Australasia Bank Ltd. v. M/s. S.H. Mahmood Hasan Akbar (P L D 1983 Kar. 431). Mr. Shamsul Arfin, learned counsel for the plaintiffs repelling the above . said submission of the learned counsel for the defendants has submitted that in the instant ease it becomes an admission that the plaintiffs had their account with the Dhaka branch of the defendant No.l for the reason that the plaintiffs' witness has specifically stated so in his examination‑in‑chief but he has not been cross examined on this point. Learned counsel for the plaintiffs has further submitted that it is admitted by the defendant No.l that an amount of Rs.2,50,000 was credited to the plaintiffs' Karachi account on 3‑12‑1971 and further amount of Rs.2,00,000 was credited to their account on 6‑12‑1971. He has further submitted that these entries were reversed on 16‑12‑1971 on account of fall of Dhaka without any notice to the present plaintiffs. The learned counsel has submitted that from these entries and admission given by the defendants' witness these facts stand proved and under such circumstances the burden lay on the defendant No.l to disprove these issues. He has placed reliance on Article 122 of Oanun‑e Shahadat. Learned counsel for the plaintiffs has also submitted that the witness examined by the defendant No.l namely Akbar Ali Siyani is not a competent witness and his evidence is of no consequence. The reason advanced by the learned counsel in support of his above submission are that admittedly the above said two amounts were credited to the account of the plaintiffs maintained by them in the M.A. Jinnah Road, Branch Karachi while the said witness was at the relevant time working as a clerk in New Challi Branch, Karachi of the defendant No.l and therefore, he could not have any personal knowledge of the transaction in the case. Learned counsel for the plaintiffs has further submitted that admittedly one M.U. Motan was the Manager of the said branch at the relevant time and that he has not been examined by the defendant No.l. He has also submitted that the written statement in the suit has been signed and varified by M/s. Ibrahim M. Bawani and Azizur Rehman but none of them was examined by the defendant No.1 although Mr. Ibrahim M. Bawani is still working with the defendant No.l and his office is situated in Habib Bank Plaza; Karachi. I have given anxious consideration to the above submission of the learned counsel. It appears from the statement of the witness Akbar Ali Siyani examined by the defendant No.l that the first 2 amounts in the suit i.e. Rs. 2,50,000 and Rs.2,00,000 were credited in the account of the plaintiffs at Karachi Branch of the defendant No.l on 3‑12‑1971 and 6‑12‑1971 respectively. It would be useful to reproduce two extracts from cross‑examination of this witness. "Whenever the T.T. is received the entries are made in file one register after verifying its text. The procedure is that when the T.T. is received it is entered in one register which is a T.T. payable register. Whenever the T.T. with advice and cash is received the entry is made in cash register and parties' credit account". "The entries in favour of the plaintiff which were made on 7‑12‑1971 were under oral instructions of the Manager. Mr. Yahya Lakhani, the Officer Incharge of D.D. T.T. Department of the defendant No.1 Branch was given the said oral instructions. I do not know the present whereabouts of Mr. Yahya Lakhani. There is no noting by Mr. Yahya Lakhani in the Bank record to show that he had such oral instructions from the Manager. By conjecture I had said Mr. Yahya Lakhani was given oral instructions by the Manager." This witness has further said in his cross‑examination that he hard not checked the record of the Head Office and he had said that he had given evidence from the record, as he had no personal knowledge of the transaction involved in the suit. The above statement of the witness in cross‑examination makes it clear that the account of client is credited by the bank only after receiving the proper advice and cash. It cannot be assumed that the banks, which are commercial organizations running business of banking would enter into such practice as to making of credit entries merely on oral instructions of their clients, however, valued they may be. In the p present case the witness has admitted that it is only by conjecture that he has said that oral instructions were given by the Manager to Mr. Yahya Lakhani although admittedly there is no such noting on the record to show if such oral instructions were given. From this fact the presumption, therefore, can safely be drawn that the credit entries were made only after such advice and amount is received by the Karachi Branch of defendant No.l. Taking up the point of canceling these entries, it is admitted by the witness of defendant No.l that no notice was given to the plaintiff before cancelling these entries. The cancellation of credit entries amounts to debiting the account of the plaintiffs behind his back without giving any such notice or intimation and in my view this amounts to violation of A principles of natural justice. The plaintiffs cannot be burdened with any liability without at least intimating them. In the first case cited by the learned counsel for defendant the Honorable Supreme Court had held as under: "We are unable, therefore, to agree that the mere production of a certified copy of the account was by itself sufficient to charge the defendants with liability. The copy produced was tantamount, however, to production of entries from the original books of account. Those entries could have been admissible in evidence only for the purposes mentioned under the Evidence Act and to the extent therein provided. Section 34 of the Evidence Act provides that "Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability." It is clear from this section that corroboration is necessary of the entry to charge a person with liability, but as to what should be the nature or the extent of the corroboration no hard and fast rule can be laid down, for, that must depend on the circumstances surrounding each transaction and the reliability of the manner in which the account has been kept: From the above it may be observed, as held by the Honorable Supreme Court, that no hard and fast rule can be laid down as to what should be nature or extent of the corroboration, which must depend on the circumstances surrounding each transaction and the reliability of the manner in which the account has been kept. B In the present case it is admitted by the witness of the defendant No.l in his cross‑examination that whenever T.T. and Advice and cash is received the entry is made in cash register and parties account is credited. Now, therefore, if any C deviation is made from this rule or practice as is alleged in the present case that the credit entries were made by oral instructions of the plaintiffs, the burden would shift to the party alleging such deviation. From the above it may be concluded that under these circumstances it was for the defendant No.l to have proved that these credit entries were made on such oral instructions but they have not examined any witness to prove this fact. In the second case cited by the learned counsel for the plaintiffs my brother Salim Akhtar, J. has held as under:‑ "The Bankers Books Evidence Act prescribes the manner in which a certified copy of any entry in the book of a bank is issued. Section 4 of the Act provides mode of proof of entries in bankers books. A certified copy of the entries in the banker s book shall be a prima facie evidence of such entry. Such entries reflect the transactions, matters and accounts and a certified copy dispenses with the production of original books of accounts and is admissible. As the certified copy is only prima facie evidence the other side has every right to rebut it. Once the authenticity and correctness of the statement of account is challenged and its prima facie value is displaced the bank has to prove the entries in it. By mere production of the certified copy of any entry in the books of the bank, the bank is not absolved from proving these entries by supporting documents. The certified copy is only prima facie evidence of the existence of such entry in the banks books and no more. Unless such entries are challenged or disputed they will be accepted as there is nothing to rebut it." In view of the above discussion the next question that would arise is as to whether the defendant No.l themselves, who have made such entries in the account books maintained by them, can challenge the same without showing any reason therefor. As discussed above it can safely be concluded that the credit entries which are always made after receipt of proper advice and cash cannot be cancelled without any notice or intimation to the concerned parties. There is no evidence on record to show otherwise. As regard the last amount of Rs.2,50,000 claimed by the E plaintiffs to have been transferred to Karachi on 9‑12‑1971, there is nothing on record to prove the same. In view of the above discussion, I answer these issues in favour of the plaintiffs to the extent that the defendant No.l is liable to pay the amount of Rs.4,50,000 to the plaintiffs credited in their account in consequence of T.T. of 3‑12‑1971 and 6‑12‑1971. ISSUE No. 6: On this issue Mr. Hamza I. Ali, learned counsel for the defendant ‑has submitted that no cause of action for filing of the suit at Karachi had accrued to the plaintiffs and that every branch of the bank is a separate entity with regard to the account opened in the said branch. It is submitted by the learned counsel that the claim of the plaintiffs is that the above‑said account with the Dhaka branch from which the said amount are claimed, therefore, they should have filed the suit against the Dhaka branch there. He has placed reliance on the case of Pakistan International Airlines v. National Bank of Pakistan (P L D 1982 Karachi 463). He has also placed reliance on the case of Arab Bank Ltd. v. Barclays Bank (1954) 2 All E.R. 226). In reply Mr. Shamsul Arfin, learned counsel for the plaintiffs has placed reliance on Section 20 (c) of the C.P.C. which provides that the suit can be filed by the plaintiffs where the cause of action, wholly or in part, arises. In the present case it may be observed that the claim of the plaintiffs is for recovery of the amounts which were transferred from Dhaka branch of the defendant No.1 and were duly credited at the Karachi branch of the same bank but subsequently G the credit entries in favour of the plaintiffs were cancelled by the Karachi branch. It is submitted by the learned counsel for the plaintiffs that since the amounts have already been received at Karachi and were payable at Karachi, the cause of action can be said to have arisen at Karachi. I find force in the submission of the learned counsel for the plaintiffs. The two cited cases by the learned counsel for the defendant No.l are not applicable to the present case as the facts therein are different from that of the present suit. I, therefore, hold that the cause of action H for filing the present suit accrued to the plaintiffs at Karachi and the suit is properly filed at Karachi. ISSUE No. 7: This issue concerns the defendant No.2 and nothing has been submitted on this issue by the learned counsel for the plaintiffs and defendant No.l. However, Mr. Salim Iqbal, learned counsel for the defendant No.2 has submitted that the banks, even after nationalisation, are enjoying their status as legal entity I and are independent of the Federal Government not with standing the nationalisation. He has placed reliance on the case of Inayatullah Narejo v. United Bank Limited (1988 C L C 1446). I agree with the submission of the learned counsel for the defendant No.2 and hold that the defendant No.2 is not a necessary party to the present suit. ISSUE No.9: In view of my findings on issues Nos. 2, 3 and 4 I hold that the plaintiffs are entitled to the relief to the extent of the amount involved in the first two entries made in favour of the plaintiffs in the account books of the defendant No.l ISSUE No 10: In view of the above discussion I decree the suit of the plaintiffs against the defendant No.l only for sum of Rs.4,50,000 with interest @ 10% from the date of suit till satisfaction of the decree and with costs. The suit is dismissed against the defendant No.2. M.B.A./759/K Order accordingly.