1090 PLP 532 (MLD)

(2) Whether this Court has no jurisdiction to proceed with the suit? (3) Whether the plaintiff illegally and un-authorisedly had transferred various amounts from the current account No.1932 of the defendant in Shahrah e‑Noor Muhammad Branch of plaintiff? (4) Whether the defendant created any equitable mortgage over his property in order to secure the plaintiffs' loan? (5) Whether the defendant was allowed an overdraft facility or a temporary overdraft facility by the plaintiff? (6) What amount is actually due and payable by the defendant to the plaintiff? (7) Whether the suit is without any cause of action? (8) What should the decree be?

4. The plaintiff in suit examined Muhammad Roshan, an Officer and attorney of the bank as Exh.l3, who produced number of documents being Exh. 14 to Exh.29. The defendant in suit examined himself as Exh.34 and the learned lower Court, after hearing the arguments of the learned counsel for the parties, was pleased to decree the suit partially for Rs.2,41,491 with interest and proportionate costs.

5. The appellant/defendant in Ist Appeal No.21 of 1979 has challenged the findings of the lower Court only on Issue No.3 inasmuch as, according to the learned counsel appearing for the appellant, in this appeal the appcllan1/defendant was entitled to a further exclusion of Rs.50,000 with proportionate interest from the amounts for which the suit has been decreed, whereas in Ist Appeal No.35 of 1979 the appellant/plaintiff has challenged the findings of the lower Court no Issue No.3 and Issue No.4 only. Issue No.l and Issue No.2 were not pressed in the lower Court and the same have also not been pressed in these appeals. With regard on Issue No.5 to Issue No.8, the learned counsel for the parties state that the same are depending on Issue No.3 and Issue No.4 and therefore, they have not advanced any submissions on these issues. In these circumstances I will discuss Issue No.3 and Issue No.4 in these appeals on which the result would be depending. ISSUE NO.3: On this issue it would be pertinent to reproduce part of the deposition of the plaintiffs' witness Muhammad Roshan (Exh.13) as given by him in the cross -examination:‑‑ "The letter of hypothecation and general security form were executed on 24‑9‑1974 whereas the claim of insurance premium has been debited in the account of the defendant on 13‑3‑1974 for RS.278.70 The other amount of Rs.287 was debited on 23‑4‑1974. The amount A Rs.1,z0,000 was deposited by the defendant in cash on 18‑12‑1973 as shown in the statement of account. This amount was withdrawn by the bank on 7‑12‑1974 as the entry shown on 18‑12‑1973 was a false entry. This entry was made by the then Manager poor Muhammad. Since the entry was false as such we did not obtain the permission of the defendant for withdrawing the amount. This entry was pointed out to be false at the time of audit in the year 1974. We did not intimate the defendant even after withdrawal of the above said amount. It is not shown in the statement of account that amount of Rs.30,000 mentioned on 17‑7‑1974 purported to have been transferred from the account was transferred to whom we did not intimate the defendant after transfer of the abovesaid amount. It is a fact that the written consent of a party is to be obtained prior to the transferring of some amount from his account. We did not obtain the written consent of the defendant in the above connection but it was verbal. This verbal permission for transfer was given to the then Manager Muhammad Farooq. I learnt this fact from Muhammad Farooque. The same is the position of the entries and made in the statement of accounts for Rs.23,000 and Rs:5,000 dated 3‑8‑1974 and 20‑8‑1974 respectively." It is on the basis of this admission that the learned lower Court has excluded the amounts of Rs.1,30,000, Rs.23,000 and Rs.5,000 which are shown to have been debited in the account of the appellant/defendant, The lower Court has also excluded the two amounts paid towards the insurance of the allegedly hypothecated bungalow i.e. Rs.278.20 and Rs.287. There is a third amount also allegedly paid by the bank towards the insurance which is also excluded amounting to Rs.331.75. Mr. Akhtar Ahmad Bhutto, learned counsel appearing for appellant/defendant, has submitted that the debit entry shown in the account of the present appellant/defendant amounting to Rs.50,000 as on 8‑5‑1974 should also have been excluded as this pertains to some cheque. The learned counsel in support of his contention has referred me to the cross‑examination of the abovesaid witness of bank, who hat stated that "whenever a cheque of some other bank is received for clearance, the amount shown therein is entered in the column of Credit Entries. The amount of Rs.50,000 is shown in the column of Debit Entries on 8‑5‑1974." From this the learned counsel stated that it should be presumed that this was a cheque deposited in the bank which should have been shown on credit side and not on debit side. I am afraid 1 cannot agree with the contention of the learned counsel, as there is no clarification in this behalf, nor any such question has been specifically put to the witness. In case of the abovesaid four entries, which have been excluded by the learned lower Court, the cross‑examination shows that there were specific questions put to the witness, but does not show the same in the case of this amount of Rs.50,

000. I, therefore, decline to accept the contention of the learned counsel. As against this Mr. I.H. Zaidi, learned counsel for the respondent /Bank, has submitted that the amounts were acknowledged by the present appellant /defendant on 24‑9‑1974, when he executed the said pro-note and also the decd of hypothecation and general security. He has placed reliance on the case of National Bank of Pakistan v. Messrs Ch. Ilam Din & Co. PLD 1985 Lah. 117 in order to support his contention that there is a strong presumption in favour of the plaintiffs. He has submitted that because there is an admission on the part of the appellant/defendant that he had signed the promissory note, therefore, this amount should be taken as correct and due against him. As against this Mr. Akhtar Ahmad, learned counsel appearing for the defendant, has placed reliance on the case of National Bank of Pakistan v. Messrs M. Ismail Thakur & Sons Ltd. 1989 CLC 700 wherein my brother Syed Abdur Rehman, J. has held as under:‑‑ "There can be no cavil with the proposition that where a pronote is signed on a blank form and delivered to the plaintiff he would have authority to fill in the same but such an authority has to be pleaded by the plaintiff. It is not the case of plaintiff that this pronote was given as signed on blank form with authority to fill and they had subsequently filed .the same. Moreover, this pronote was proved to be without consideration and hence the plaintiff cannot be termed as the holder in due course. Section 20 would, therefore, not apply. There can also be no cavil with the proposition that the burden of proof of non‑payment of consideration in a case where execution is admitted of a negotiable instrument would be upon the executant of the document but admission of signing a blank document does not amount to admitting its execution. Reliance was placed on Abdul Karim v. U.B.L. 198.1 SCMR 568 in this behalf." In view of the above decision of the Karachi Bench, I am inclined to hold that no doubt there is a strong presumption in view of the provisions of section 118 of the Negotiable Instruments Act, but it may be observed that the very section begins with the words "until contrary is proved, the following presumption shall be made." In the present case it has been admitted by the very witness of the bank that certain entries, the amounts of which have been included in the amount shown in the Promissory Note which was executed subsequent to the dates of those entries, would itself show that the Promissory Note is not for the amount reflected therein. From this it can be held that this Promissory Note is without consideration and the suit would not succeed on the basis of this Promissory Note as observed in the above‑‑cited case of National Bank of Pakistan v. Messrs M. Ismail Thakur & Sons Ltd. 1988 CLC 700 wherein my learned brother Syed Abdur Rchman, J. had dismissed the suit for the reason that the Promissory Note was found to be without consideration. But in view of the fact that other advances and withdrawals have been admitted by the present appellant/ defendant, I am inclined to hold that the plaintiff bank is entitled to money decree for the amounts found due. Reliance may be placed on the case of Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. and others PLD 1909 Kar. 123 wherein Noorul Arfin, J. (as he then was) has held "the advance of the two loans of Rs.6,25,000 and Rs.75,000 by the plaintiffs and the receipt of these loans by defendant No.l is not denied. Accordingly, I would follow the rule laid down by the Privy Council in P.T. Krishnaswami Ayyangar v. Chevula Kamalamma and others AIR 1941 PC 90 and would give a money decree to the plaintiffs." In view of the above discussion, I am inclined to uphold the findings of the learned lower Court on this issue. ISSUE NO. 4: On this issue Mr. I.H. Zaidi, learned counsel for the appellant has submitted that section 58(f) of the Transfer of Property Act is no more applicable as by a subsequent amendment through a notification it has been provided that deposit of title‑deeds in all District Towns can create equitable mortgage. In the first instance no such notification has been produced by the learned counsel. However, Mr. Akhtar Ahmad Bhutto, learned counsel for the defendants has submitted that there was no deposit of title bonds nor any mortgage‑deed was 1 created by the defendant with regard to his bungalow situate in Latifabad. According to the learned counsel, the defendant did not deposit the title documents of his bungalow with the plaintiff bank. There is nothing on the record of the suit to show that the title‑deeds were deposited, nor the same have been produced by the bank. The plaintiff bank has produced one document (Exh. 19) which shows that it is an allotment order issued in favour of the defendant with regard to Plot No.31 of Unit No.111, Latifabad, Hyderabad. It may be observed that this is only an allotment order which by itself cannot be termed to be a title deed. No registered lease/transfer‑decd has been produced, nor any other document of such nature has been produced by the plaintiff bank. By depositing the mere allotment order of the plot, it cannot be said that the very bungalow itself has been mortgaged with the plaintiff bank. Reliance may be placed on the above‑cited case of Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. and others (ibid) wherein it has been held that "according to this view the extract from the record of rights cannot at all be treated as a title‑deed, because on conveyance of the land no property in the extract, which can be obtained by any person from the survey office on payment of requisite fee, can be said to pass to the purchaser." Moreover in this case it was also held that the other writings which, if purport to amount to create a mortgage, have to he registered under the t Registration Act, and for want of such registration these writings would not have any effect creating a mortgage. In the present case it may also he observed that the other documents produced by the bank show that none of them was registered and as such following the abovesaid case of Karachi Bench I am inclined to hold that no such mortgage as claimed by the plaintiff bank was created. From the above discussion I am of the view that the findings of the learned lower Court do not require any interference and upholding the same I dismiss both the appeals. However, there will he no order as to costs. M.B.A./A‑720/K Appeals dismissed