1982 PLP 1898 (CLC)

"I recall that plaintiff No. .1 has personally visited trio add requested me to encash the F. D. R. prematurely because he was in need of money. The F. D. R. has been signed on its reverse at two places by plaintiff No. I These are marked as Exh. 5/3/1 and Exh. 5/3/2. Two signatures are obtained on the reverse of F. D. R. one is for the purpose of verification of the signature and the other in acknowledgment of the receipt of. payment in cash. I have also signed this F. D. R. on its reverse y way of verification of the signature of plaintiff No.

1. The figures on the reverse indicate the denomination of the notes by which the payment of the F. D. R. was made. Plaintiff No. 1 signed on the reverse of the F. D. R. at both the places in my presence Again says I do not remember whether the plaintiff 1 had signed at both the places in my presence. I had made the payment to plaintiff No. 1." We may now refer to the statement of Mr. G. M. Shah plaintiff No. 1 who examined as the plaintiffs witness in the case. He stated that his Life Insurance Policy matured whereupon he received from State Life Insurance Corporation a cheque for Rs. 32,166 drawn on Natiod'al Bank of Pakistan. This amount plaintiff No. 1 decided to invest in fixed deposit for the benefit, of his three sons plaintiffs Nos. 2, 3 and 4 as he did not need that money. Since the plaintiff' No. I had an account with the defendant bank at its Campbell Street Branch he sent employee Attai Khan to the said Branch to find out the formalities to obtain F. D. R. in response to which the Manager of the said Branch himself came alongwith the Assistant Manager who was to take over from the said Manager. He brought a form to be filled in by plaintiff No. 1 who told the said Manager that he wanted the F. D. R. to be issued in the name of his three sons plaintiffs Nos. 2, 3 and

4. According to the said witness the Manager instructed plaintiff No. I to fill in the blanks in the second paragraph of Form (Exh. 5/!) which he did and below it he signed. The witness further deposed that in the blanks he had given the names of his three sons i. e. plaintiffs Nos. 2 to 4 and at the same time told the manager that he would send the form to him later as at that time he had some clients with him. The relevant instruction upon which plaintiffs counsel for purposes of this case, may be referred here. The same reads as follows :‑ "Unless otherwise instructed in writing these instructions shall hold good for any other similar Deposit(s) in the same rights that may be made hereafter,. and all such Deposit(s) shall be repayable to (1) Raza Muhammad Shah (2) Imdad Shah and (3) Asif Shah, all sons of self, even in the case of repayment before due date." The witness further deposed ‑that he had not signed the said form at the bottom below the heading `Acknowledgment' and the words "received the deposit receipts as detailed. above.' Mr. G. M. Shah (Exh. 11) further stated that he sent the form (Exh. 5/1) with his peon Attai Khan to the bank which was situated in the same building in which he had the office and that the bank officer wanted the. plaintiff No. 1 to sign the said form above the words Signature of Depositor' and, therefore, he signed the form and returned it to the bank through same peon. It was also deposed by him that before he signed the. form for the first time, he had filled in his name in the form and also wrote his. address and had signed the same at five places above the heading "Acknowledgment" and bad put his signatures one of them above the words "Yours faithfully" and one below them and three under the words `specimen signatures'. The witness further stated that the F. D. R. (Exh. 5/3) was brought back to him in blank by his peon with the request from the bank that he should sign the receipt on the reverse at two places one on the revenue stamps and the other below the words `Receiver's Signatures' which be did. According to the witness Exh. 5/3 on its face was filled in after wards by the bank and not before he had signed the same on its reverse. The F. D. R. Exh. 5/3 according to the evidence of Plaintiff No. 1 was sent to the bank after he had signed on the reverse on 27‑3‑1976 which being a Saturday he made inquiries from the bank on Monday the 29‑3‑1976 whether they had received the documents (Exh. 5/1, 5/2 and 5/3) and also requested the bank to issue him the F. D. R. or send him the acknowledgment of having received the said three documents whereupon the bank officer confirmed that they had received all the three documents and that the bank would issue the receipt after realising the proceeds of the cheque referred to above. As plaintiff No. 1 did not receive the F. D. R. or its acknowledgment, he went to the bank and in his words the facts which happened are reproduced as follows :‑ "The Officer to whom 1, had spoken was Qamaruddin and 1 came to know of his name in the month of October when I had gone to the Bank to complain that I had not received the Fixed Deposit Receipt, or its acknowledgement. At that time I saw the Manager of the Bank, and that was the first time when I had entered into the bank premises and protested to him that I was not being given .the fixed deposit receipt' He then called Qamaruddin who was then incharge of Fixed Deposit Receipts Section. Qamaruddin told me that he was going to look into the matter immediately but he did not return for sometime so I again complained to the Manager and then the Manager and the person who was to succeed him Mr. Rashid and I all together ‑ come out and found that Qamaruddid was talking to some clerk, and asked him to show. the documents upon that he said that he was not running away from the bank and would bring the same to the office of the Manager. However, we took him to the office of the Manager alongwith the registers and there he stated that the amount of fixed deposit receipt, bad already been received by. somebody. I asked him in the presence of the Manager, as to who that body was but he was. unable to name any person or identify him. Thereupon I told the Bank Manager that I should inform the police but Mr. Rashid begged that should not do so as the reputation of the bank was involved as I was concerned with my money that would be paid to me. The same evening Qamaruddin alongwith the clerk to whom he was talking when I, the Manager and the successor manager had gone to him in the morning came to my office, and Qamaruddin fell on my feet that I should not report the matter to the police and that my money would be paid to me. Again the following evening both the managers came to me and pleaded to me not to report the matter to the police and assured me that my money would be paid to me."

9. It has also come in the evidence of P. W. 1 Mr. G. M. Shah (Exh. 11) that be had deposited on 23‑11‑1976 Rs. 1,00,000 for which the F. D. Rs. in his name and in the name of his two children were given to him on the next day and that he was persuaded to do so by Mr. Rashid, a bank officer, to deposit more money in the said bank so that he may earn his confirmation and that he had given assurance that the money against the F. D. R. in question in the suit, would be paid to him in the near future. However, as the money was not paid as per assurances given, notice dated 17‑12‑1976 (Exh. 7) was given by him and ultimately the suit was filed.

10. Plaintiff No. I (Mr. G. M. Shah) was cross‑examined at length by the learned counsel for the defendants wherein he affirmed that the F. D. R. was repayable to his sons. Plaintiffs Nos. 2, 3 and 4, and that it was incorrect that he had intended to encash the F. D. R. on maturity. He further deposed that the person who had told him that he had received the form, F. D. R. and the specimen signature card had given his name on the phone as Qamaruddin and that he (Mr. G. M. Shah) was satisfied with the assurance given by the said bank Officer that acknowledgment of the said F. D. R. would be sent. Mr. G. M. Shah categorically stated that there was no occasion for him to obtain any loan or advance from this bank or from any other bank as be had enough money in his accounts with the defendant bank and other banks. The witness deposed :‑ "I had trusted the officer and the manager that they were holding the F. D. R. in terms of my instructions in form (Exh. 5/1). It is not necessary that by signing on the revenue stamps on the reverse of the cheque or F. D. R. indicates acknowledgment of the receipt of the money. The F. D. R. given to me was in blank it was not even filled in and by putting my signature on the back of it, I would never imagine that I was acknowledging any receipt of payment. I had signed the receipt trusting the bank and its officer. In the same manner in which I had signed (Exh. 5/1) below the words, `received the deposit receipt' when actually I bad not received the receipt and then it was not even prepared. The bank had asked me to sign the receipt of fixed deposit on its reverse in order to enable them to collect the cheque and to comply with my instructions contained in form (Exh. 5/1) with regard to the amount of receipt being repayable to my three sons."

11. As against the evidence of Mr. G. M. Shah Plaintiff No. 1 led on behalf of the Plaintiffs, which has remained unshaken the defendants have not been able to substantiate the story set up by them that Plaintiff No. 1 had himself called upon the defendant Bank at its Campbell Street Branch on 28‑5‑1976 and expressed a desire to encash the same prematurely and that on receiving the payment of Rs. 32,166 plaintiff No. 1 acknowledged the receipt of the same by signing the receipt (Exh. 5/3) on its reverse or that the amount of the F. D. R. was paid to Mr. G. M. Shah personally. Significant here to note is also the fact in his evidence Qamaruddin' (Exh. 5)'the defendants witness stated, that Plaintiff No. I approached him "personally" and requested to encash the F. D. R. prematurely because he, Plaintiff No. 1, was in "need of money". However if we revert to the evidence of the Plaintiff No. I besides finding that Plaintiff No. 1 never went to the bank except on the occasion when he found that he was defrauded, we also find that Plaintiff No. 1 in fact was not in need of any money so as to give rise to an occasion to encash the F. D. R. prematurely. Plaintiff No. 1 (G. M. Shah) had stated in express terms :‑ "I had no occasion to obtain any loan of advance from this bank or from any other bank as I had enough money in my accounts with the defendant bank and the other banks."

12. The above statement of the P. W. 1 Mr. G. M. Shah had not been challenged in his cross‑examination. We also find that this statement of the P. W. is fully corroborated by the fact that on 23‑11‑1976 he had deposited Rs. 1,00,000 in the same bank. This fact belies the story set up by the defendants that Mr. G. M. Shah wanted to encash the F. D. R. prematurely because he was in need of money. The statement of bank account, produced as Exh. 6 also shows that in the month of June, plaintiff No. I had sufficient‑ amount at his credit with this very bank at its Campbell Street Branch (between Rs. 33,000 to Rs. 39,425). The fact also totally exposes the falsify of the statement of the defence version that plaintiff No. 1 was in need of money and, therefore, the F. D. R. was prematurely encashed.

13. There is yet another factor of which note be taken. In his evidence the defendants witness Mr. Qamaruddin (Exh. 5) had expressly stated that Mr. G. M. Shah had approached him personally for encashment of the F. D. R. prematurely and that he signed on the reverse of the F. D. R. at both the places in his presence and that he made the payment to Mr. G. M. Shah personally. However, in the cross. examination when confronted with the denominations of notes written on the reverse of F. D. R. he was forced to admit that. "The denominations of the notes written on the reverse of the F. D. R. Exh. 5/3, are not in my handwriting. They have been written by Mr. Osman Ghani The writing shows that 643 notes of Rs. 50 denominations and six notes of rupees one denomination. These notes were not collect: d by me from the Cashier. I did not pay the amount of F. D. R. to Plaintiff No. 1." In my opinion the fact that Osman Ghani, a material witness employee of bank was not produced coupled with the admission on the part of the defendants witness that he had not made the payment, though earlier he had tried to setup the story that he personally bad made payment to Plaintiff No. 1, is a strong circumstances to draw adverse inference against the defendants and reject their defence plea that Mr. G. M. Shah had prematurely encashed the F. D. R. if that payment was made to him after obtaining his signatures, acknowledging the receipt of the payment. I would like to point out here that it has come on record that Attai Khan had left the service of Plaintiff No.

1. Non‑examination of the said person, therefore, stands fully explained.

14. As against the contradictory evidence led by the defendant which inspires least confidence, it would be observed that the evidence given by Mr. G. M. Shah (Exh. 11) to the effect that his signatures were obtained acknowledging the payment on Exh. 5/3 as well as upon Exh. 5/1 on 27‑3‑1976 on the request of the defendants has remained unshaken, though he was cross‑examined at length.

15. The learned counsel for the defendants tried to argue that in view of the provisions of sections 91 and 92 of the Evidence Act, Plaintiff No. 1 was precluded from leading any evidence to show that he had not received the 'receipts' of the F. D. R it would however be seen that Exh. 5/1 bears the date (27‑3‑1976) but the acknowledgment at the bottom of the document signed by plaintiff No. 1 bearing no date. Similarly the F. D. R. bears date of 28‑3‑1978 but on the reverse when the signature of Plaintiff No. 1 appear, under the printed lines reading "received payment in cash" and "Receiver's Signature' no date is written. so as to show as to when the said signature were put by Plaintiff No. I. Plaintiffs in the circumstances are not precluded from leading evidence to show on what date the said documents actually were signed. Moreover. the defendants cannot take cover under the provisions o section 91 and 92 of the Evidence Act so as to debar the Plaintiffs from leading evidence to establish that fraud had been committed upon them. Mr. Liaquat Merchant, learned counsel for the defendants cited a number of cases in support of his plea that under Sections 91 and 92 of the Evidence Act no evidence could be given in proof of the terms of the F. D. R. and its payment except by production of the original and the Plaintiffs could not lead evidence contrary to the terms of the written documents. However. it would be sufficient to refer to Provision to section 92 of the Evidence Act which expressly provides that any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto ; such as fraud, intimidation illegality, want of due execution want of capacity in any contracting party, want of failure of consideration of mistake in fact or law. Mr. J. H. Rahimtoola learned advocate for plaintiff rightly relied upon Hukum Chand v. Shambhu Nater (A I R 1935 All. 346) where it was held that sections 91 and 92 of the Evidence Act do not bar evidence to show that the receipt is a fictitious document in the sense that no money was paid. Reference may also be usefully made to the case of Muhammad Tagi Khan v. fang Singh (A I R 1935 All. 429) a judgment of the Full Bench where while consider ing the provisions of sections 91 and 92 of the Evidence Act, the learned High Court held as follows :‑ In the case of 1914 All. 298 (8) a Division Bench of this Court purported to follow the case of 33 All. 340 (7). In that case the vendor tendered evidence to show that, though it was stated in a sale‑deed that the consideration had been paid, it had not in fact been so paid. In those circumstances it was held that it was open to the other party to the contract to show that the price stated in the sale‑deed was not the true price agreed between the parties. The statement that the money has been received is a mere statement of fact and is in no way a term of the contract. That being so no oral evidence may be adduced to contradict such a statement of fact, as the admission of such evidence in no way contravenes the provisions of section 92, Evidence Act. which deals only with evid ence tending to contradict, vary add to, or subtract from the terms of a contract, grantor other disposition of property." Thus the argument of the learned counsel for the defendants that the Plaintiffs could not lead oral evidence to show that payment was not received and that he was defrauded, cannot be accepted.

16. Finally, 1 would like here to refer to the evidence of the defendants witness (Mr. Qamaruddin Exh. 5), who in his evidence during cross examination admitted that‑ "according to the instructions contained in Exh. 5/1 the payment was to be made to Raza Muhammad Shah, Imdad Shah and Asif Shah all sons of Plaintiff No. 1." He further admitted that‑ "the payment could not be made to the three sons of plaintiff No. 1 according to the instructions contained in the Ex. 5/1 unless the F. D. R. duly discharged was placed with the bank." In the face of the above admissions and for reasons stated above I find that the Plaintiffs case stands duly proved, that the payment made to any person other than Plaintiffs No. 2, 3 and 4 was unauthorised and that the defendants officers in performance of their duty had acted negligently and wrongfully in making payment to a person other than plaintiffs, and further hold that no payment was made to Plaintiff No. 1.

17. Before parting with the case 1 would like to note here that the learned counsel for the defendants also tried to argue that even if it be assumed that plaintiff No.1 had left the F.D.R. with any of the defendants employees, then it would be a case of reposing confidence in such on employee for which the defendant would not be liable. This argument however cannot be considered at this stage as neither any such plea has been raised in the written statement nor in the issues framed in the suit.

18. The Issue No. 1 is accordingly answered in the negative and it is held that plaintiff No. 1 had not prematurely encashed the F. D. R. as pleaded in the written statement by the defendants.

19. Regarding Issue No. 2.‑In view of my findings on Issue No. 1 as above, the defendants are held liable to pay to the plaintiffs Rs. 38,599.20 and iterest at the rate of 10% which up to the date of filing the suit amounts to Rs. 38, 599.20.

20. The suit is accordingly decreed against the defendants as prayed for Rs. 38,599.20 with costs and interest at the rate of 10% per annum from the date of suit till payment. K. M. A Suit decreed.