1992CLC962 (PLP)

(12) Whether the Defendant has been guilty of the acts of negligence as alleged in Para‑11 of the plaint? (13) Whether the Plaintiffs are entitled by way of compensation/damages the sums claimed in the suit? (14) What should the decree be? The plaintiffs in support of their claim examined Abdul Hameed Khan (Exh.5), Assistant Radio Traffic Officer Central Radio Office, Karachi. They also examined Mohammad Nazim Khan (Ext.6) Telephone Revenue Inspector, Karachi Lastly the Plaintiffs examined their Attorney Usman Haider (Exh.7), who produced the Fixed Deposit Receipts, letter dated 10‑11‑1971 and notices arid reply notices. It is pertinent to observe here that Hanif Adamjee, who is alleged to have deposited the amount on behalf of the Plaintiffs and written the said letter to the President of the Bank at London has not been examined by the Plaintiffs. He has also signed the plaint on behalf of the then minor Plaintiffs. There is nothing in the evidence to indicate if the said Hanif Adamjee is not available to give evidence for any reasons. The Defendants have examined their Vice‑President Abul Kalam as Exh.8. This witness of the Defendants is said to be the Sub‑Manager in the above said Dacca Branch of the Defendant at the relevant time. I have heard Mr. Mamoon Hassan, learned counsel for the Plaintiffs and Mr. Abu Baker I. Chundrigar, learned counsel for the Defendants. My findings accordingly are as under: ISSUE No.1: There is not denial from the Defendants' side on this issue, which is accordingly answered in the affirmative with the observation that the Plaintiffs No.2, 3 and 4 were minors at the time the suit was filed but attained majority during the pendency of the suit. ISSUE No. 2: On this issue the Plaintiffs have examined the Assistant Radio Traffic Officer from the Telegraph House, Karachi, who has stated that there was no link between East and West Pakistan after 15‑12‑1971. He has also produced a letter issued by the Radio Traffic Officer on 12‑8‑1972 to this effect. The other witness examined by the plaintiffs is the Telephone Revenue Inspector, who has produced two letters issued by Divisional Engineer Telephones, Trunk, Karachi and Divisional Engineer, Electrical T.N.T., Karachi. These letters also show that there was no Telex Communication or telephonic communication between East and West Pakistan from 13th December, 1971 and 16th December, 1971 respectively. It may be observed that on this point the case of. the Defendants is not that there was absolutely no link but it is said that the link between the then two Wings of Pakistan were perturbed and not effectively working and, therefore, no correspondence could be made between the Bank's Head Office at Karachi and their Dacca Branch. On this issue the Defendants' witness Mr. Abul Kalarn has stated that during the months of November and December, 1971 the situation in Dacca was abnormal as the law and order situation have deteriorated. He also stated that the postal services of the city were also effected; and that on account of such disturbances the staff in various offices was not coming to work. He has categorically stated "we did not send through post the official or other documents nor did we receive the same from the postal authority." There is no evidence brought on record by the Plaintiffs to show that the correspondence or communications between the Karachi Head Office and Dacca Branch of the Defendants was not in existence. Rather the Plaintiffs in Para. 5 of the plaint have themselves stated that in November, 1971 the invasion of East Pakistan by India in support of the insurgents was impending; and‑that it was evident that East Pakistan would not remain part of Pakistan and, therefore, the said Hanif Adamjee had written the letter dated 10‑11‑1971 from Washington to Mr. Mustafa Ismail at London. These facts clearly show that the conditions prevalent at that time were such that the Karachi Head Office of the Defendants could not have exercised effective control over its Dacca Branch. The issue is accordingly answered in negative. ISSUES Nos.3. 4. 5 6. 7 and 8: I will take up these issues jointly as the same are inter‑connected. On these issues, the case of the Plaintiffs as transpired in the evidence is that apprehending that the then East Pakistan would no more remain a part of Pakistan, they through Hanif Adamjee got a letter written from Washington to Mr. Mustafa Ismail at London desiring that then funds covered by the said 15 F.D.Rs. be transferred to Karachi Office of the Defendants bank arid fresh F.D.Rs. be issued from the Karachi Office. The learned counsel for the Plaintiffs has submitted that the letter written by the said Hanif Adamjee (Exh.7/2) is sufficient proof of the same alongwith the receipts which were enclosed. He has further submitted that the receipt of this letter is not denied and it is also in the evidence that the said letter alongwith F.D.Rs. were sent to Karachi office and, therefore, this amounts to an undertaking and agreement on behalf of the Defendants to abide by the request made in the said letter. From this, the learned counsel has submitted that in these circumstances the Defendants are liable. He has placed reliance on commentaries from "Sheldon's Practice and Law of Banking by C.B. Drover and R.W.B. Bosley' and also" Law and Practice of Banking by Prof. Sohrab R. Davar" and "Banking Theory, Law and Practice by K.P.M. Sundhram and P.N. Vaxshney". As against this, Mr. Abu Baker I. Chundrigar, the learned counsel for the Defendants has submitted that Mr. Hanif Adamjee has no authority to issue any directions to the Bank on behalf of the depositors as he neither held any authority from them nor was holder of any power of attorney. The next submission of the learned counsel for the Defendants is that the said F.D. Rs. could have been encashed only at Dacca Branch for which their presentation was necessarily required there. He has further submitted that the funds of the depositors could not be tranferred to the Karachi Office unless the F.D.Rs. encashed first at Dacca Branch of the Defendants. In this context, he has further submitted that it was incumbent upon the depositors to make a demand, for encashment of the F.D.Rs. at the Dacca Branch as the same were sought to be encashed before the date of maturity and also that the depositors had to give express consent for loosing the interest in such cases, as regards the letter Exh.7/2 Mr. Abu Baker I. Chundrigar, learned counsel for the Defendants not denying the receipt of the same by Mr. Mustafa Ismail at London as submitted that it has not been proved by the Plaintiffs as to when the said letter was received and as to when the same was sent to Karachi, time being of material importance in the present case as the fall of Dacca had taken place on 17th December, 1971. 1 have considered the submissions of the learned counsel for the parties and perused the record on these issues. There is no doubt that a Branch is an agency of the Head Office and also that the fixed deposit receipts can be encashed before their date of maturity but in that case the depositors will lose the interest. In the commentary in the Sheldon's Practice and Law of Banking at pages 174 and 175, it is observed that "Credits may be paid in at any Branch or Sub‑Branch but before drawing against such credits, the customer must allow sufficient time for advice of the credits to reach the Branch at which his account is kept." It is further observed in the same context that "arrangements may be made by which a customer can have his cheques cashed at another branch." In the present case, the Plaintiffs' counsel has put his reliance solely on the alleged letter Exh.7/2, the copy of the letter which has been produced in the evidence is an unsigned copy. This letter is written from Washington to Mr. Mustafa Ismail when he was at London. It is not understood as to why such letter was not written to the Defendant's Head Office instead of its President by name at a place where obviously he was not discharging his functions as such President. The Plaintiffs have not called this Mr. Mustafa Isamil as their witness nor they have examined even Mr. Hanif Adamjee, who is said to have written that letter. This letter has been produced in evidence by PW Usman Haider, who was constituted and appointed as Attorney by the present Plaintiffs vide power of attorney executed on 6th May, 1986 i.e. 12 years after the institution of his suit. By this letter no request for encashment of the F.D.Rs. is made but all that is said is that the funds of the depositors be transferred to Karachi and new Karachi F.D.Rs. be kept with Gardah. The first point for consideration nor' is whether Mr. Hanif Adamjee was authorised and was competent to issue such directions to the Bank on behalf of the depositors. As already observed he did not hold any authority from the depositors. The present Plaintiffs Nos. 1, 5 and 6 were admittedly adults at that time and under no circumstances this Mr. Hanif Adamjee could act on their behalf unless he held such authority. As regards minor Plaintiffs also, the plaintiffs have not been able to show if he held any such authority from any' Court of law to act on behalf of the minor depositors directing the transfer of their Fixed Deposits from one Branch to another or encashment thereof, losing the interest on the same which would cause a loss to the minors. This letter also does not show if any request was made for presentation of the F.D.Rs. at the Dacca Branch for the purposes of encashment and then transfer of funds to Karachi office. This letter also does not show if any request was made for keeping these amounts of the depositors in their respective names and respective accounts at Karachi Branch but all that is said is that funds be transferred to Karachi and new F.D.Rs. from Karachi office be kept with Gardah. Even the request/directions made in this letter are, therefore, not specific but are vague. Mr. Abu Baker I. Chundrigar, learned counsel for the Defendants has drawn my attention to the F.D Rs. which have been produced as Exhs.7/3 to 7/li. It is an admitted position that by the time the letter Exb_ 7/2 was written, these F.D.Rs. had not acquired maturity. A plain reading of the F.D.Rs. will show that the same were not transferable; and that the same? were repayable at the Branch from where these were issued. Under these circumstances, it was necessary for the Plaintiffs to have produced the same for the purposes of encashment at the branch from where these receipts were ,4sued i.e. MotijheeI Dacca Branch of the Defendants. This principle is also laid down in section 68 of the Negotiable Instruments Act, which reads as under; "68.????? Presentment for payment of instrument payable at specified place and not elsewhere. A promissory note, bill of exchange or cheque made, drawn or accepted payable at a specified place and not elsewhere must, in order to charge any party thereto, be presented for payment at that place." Mr. Abu Baker Chundrigar, Advocate in support of above contention has placed reliance on the case of Delhi Cloth & General Mills Company v. Harnam Singh AIR 1955 SC

590. In this case the Supreme Court of India had observed that obligation of a Bank to pay the cheques of the customer rests primarily on the Branch at which he keeps his account and the Bank can rightly refuse to cash a cheque at any other Branch. It was further observed by their Lordships that a customer must make a demand for payment at the Branch where his current account is kept before he has a cause of action against the Bank. It was further observed that the rule is the same whether the account is a current account or whether it is a case of deposit. Either way there must be a demand by the customer at the Branch where the account is kept or where the deposit is made and kept, before the Bank need pay. In view of above discussion, I answer these issues against the Plaintiffs for the reasons that Mr. Hanif Adamjee did not have any authority to issue the said instructions nor the Plaintiffs have been able to prove as to when the letter was received by Mr. Mustafa Ismail at London and when the same was received at Karachi Head Office of the Defendants. I also hold that mere writing of the letter by an unauthorised person and receipt of the same, by the President of the Defendants' Bank in his personal capacity does not amount to an undertaking or agreement on his part as claimed by the Plaintiffs. The fact that the Plaintiffs have not examined the said Hanif Adamjee or Mustafa Ismail also gave rise to an inference against them. The issues answered accordingly. ISSUES Nos. 9 and 10: if; In view of my findings on the foregoing issues, the issue No.9 answered in negative while on issue No.10 it is observed that there being no agreement, the question of frustration of the same does not arise. ISSUES Nos, 11 and 11 These issues are also answered against the Plaintiffs for the reasons that the Plaintiffs are not entitled to the amounts or compensation and damages claimed by them as they did not approach the proper Branch for the. purpose of encashment of their F.D.Rs. although they admit in the plaint that since November, 1971 they had apprehensions. The issues answered accordingly. ISSUE No.12: . In view of above discussions, I hold that the Defendants have not been guilty of any act of negligence as alleged in the plaint. ISSUE No.14: In view of above discussions, the suit is dismissed with no order as to costs. Above are the reasons for the short order announced in Court on 3rd September, 1991. K.BA./G‑274/K?????????????????????????????????????????????????????????????????????????????????? Suit dismissed.