1992 PLP 1810 (MLD)

The facts leading to the filing of the present application under section 115, C.P.C. briefly stated are as under:‑ The respondent No.1 S.M. Hasan herein had on 25‑11‑1971 opened a fixed deposit account with the Post Master General, Southern Circle, C.T.O. Building, Karachi, by depositing Rs.10,

000. Subsequent Mst. Safia Bano, the respondent No.2 herein joined as one of the joint account‑holders of that account. On 25‑11‑1972 they filed an application for withdrawal of the entire amount and presented their Pass Book. The withdrawal of amount was objected to on two grounds that the signature of the drawer was different and the entire amount could not be withdrawn. The account‑holders then through their various applications followed up the demand, but amount was not allowed to be withdrawn as they were informed that their case is under an enquiry. Ultimately they served a notice dated 28‑i1‑1978 to the Applicants in terms of section 80, C.P.C. and filed a suit for recovery of Rs.25,000 with costs. They claimed Rs.10,000 the initial deposit, Rs.10,000 as profit on their amount and damages of Rs.5,

000. The applicants in their written statement in the suit claimed that the respondents were not the real account‑holders but their father Shamshad Hussain an employee of the Department was concerned with the unclaimed accounts, and he was taking advantage of similarity in initials of the name of the respondent No.1, and claimed the amount through his son (respondent No.1). Cases of fraud were already detected against their father and he was involved in a number of such cases. They also raised a plea of limitation and claimed that the suit was filed beyond the period prescribed for such suits. The Trial Judge on the basis of pleadings of the parties framed the following issues:‑ "(1) Whether claim is time‑barred having refused it in year 1972? (2) Whether the plaintiffs are not the same persons in whose name account is held with Defendants? (3) Whether refusal of Defendant for withdrawal was justified? (4) To what extent, plaintiffs are entitled to receive? (5) What should be the decree? Both the .parties led evidence both oral and documentary and the Trial Judge ultimately held that the suit was barred by Article 60 of the Limitation Act; that respondent No.1 was not the same person who had initially opened the bank account and refusal of the Applicants to allow withdrawal of the amount was justified. On the basis of such findings, he dismissed the suit with costs. Both the respondents filed an appeal against the judgment and decree passed by the trial Court mentioned hereinabove. Their Appeal (Civil Appeal No.53/85) came to be heard by the IIIrd Additional District Judge, Karachi (South). The Appellate Judge by his judgment dated 27‑7‑1989 accepted the appeal and decreed the suit filed by the respondents. The Applicants have now filed this Application against the judgment and decree passed by the Appellate Court. Mr. Umer Qureshi, Advocate for the Appellant, contended, (1) that thee Article 60 of Schedule I of the Limitation Act is applicable to the facts of the case and the suit is barred by it; and (2) that the respondents were not the real account‑holders. On both the above grounds judgment of the Appellate Court is liable to be set aside by this Court. Mr. Umer Qureshi, Advocate for the Appellant, in order to elaborate his arguments, pointed out that Shamshad Hussain, the father of respondent No.1, was an employee of General Post Office in Saving Account Branch and fully knew that certain unclaimed accounts were being held by the Saving Branch. As the initials of the name of the account‑holder were similar to the initials of the respondent No.1, he continued to file the claim and attempted to withdraw the amount. Mr. MA. Mazhar Imam, appearing for the respondent, contended that the amount was deposited with the applicants and remained in trust with them and therefore under section 10 of the Limitation Act no particular period for filing the suit is prescribed. According to him, the suit was filed within time. He then contended that the reasons given by the trial Judge while dismissing the suit are in the nature of conjectures while the judgment of the Appellate Court is based on cogent reasoning which cannot be set aside in exercise of revisional jurisdiction. The trial Judge had recorded his finding in the suit that demand in this case was made by the respondents on 25‑11‑1972 when the payment was refused while the suit was filed after a lapse of about 7 years on 29‑7‑1979. According to him, Article 60 of Schedule I of the Limitation Act is applicable to the facts of the present case and the suit was barred by time. There can be no doubt that a suit for recovery of money deposited under an agreement that it will be payable on demand, including money of a customer in the hands of his bankers so payable, can only be filed within a period of 3 years when the demand is actually made under Article 60 of Schedule I to the Limitation Act. Article 60 of Schedule I of the Limitation Act specifically prescribes a period for filing of suits relating to transactions of a Bank and its customers. Time so prescribed would run when the demand is made. Section 10 of the Limitation Act will have no application to the facts of this suit. In this case the Applicants refused to make the payment on the ground that drawers' signatures were different. Such an endorsement made by a Banker cannot be treated as refusal of the Bank to pay the amount on demand in terms of Article 60 of Schedule I of the Limitation Act. The period of limitation for filing of a suit in the present case will not commence from the date such an endorsement was made but will run from the date of notice demanding such payment. The date relevant for computing the period of limitation shall be 28‑11‑1978 when the notice of demand was issued and the suit was filed within time. By taking this view I am fortified by the judgment passed in the cases of National Bank of Pakistan v. Mst. Ashraf Jahan Begum, reported in 1983 CLC 266 and PLD 1975 Kar.

252. The first contention of Mr. Umer Oureshi, the Advocate for the Applicants, has therefore no force. It was next contended by the Advocate for the Applicants that the respondents are not the account‑holders. The trial Judge had taken into consideration certain omissions made by Respondent No.1 at the time when he had opened the account in giving his full particulars as he did not mention certain particulars or had incorrectly given the same. The forms prescribed for opening of such accounts, as found out by the Appellate Court, did not have such columns. The respondents were, therefore, under no obligation to supply particulars not required by the form to be given. The applicants did not lead any evidence to show that respondents were not the account‑holders but tried to prove that their father was responsible for misappropriating amounts deposited by various persons who had not claimed the same. In absence of any positive evidence that Respondents are not the real holders of account in question, payment of amount could not be refused. In view of above no ground for interference in the judgment of the appellate Court is made out and the revision application is dismissed with no order as to the costs. AA./G‑288/K Revision dismissed.