2004 PLP 1338 (CLD)

MIAN HAMID FAROOQ, J.‑‑‑This single judgment shall decide the present appeal (R.F.A. No.268 of 1997) and the connected appeal (R.F.A. .No. 269 of 1997, as common questions of law and facts are involved in both the appeals and they have arisen out of identical judgments.

2. Instant appeals, filed by United Bank Limited, under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, proceed against judgments and decrees dated 10‑4‑1997, whereby the learned Judge Banking Court dismissed appellant's two suits for the recovery of Rs.74,349 and Rs.74,369.

3. Precisely stated the facts giving rise to the filing of the present appeals are that the appellant/ plaintiff, on 3‑9‑1980, filed two separate suits for the recovery of Rs.74,349 and Rs.74,369 against the respondents, in both the appeals, before the learned Senior Civil Judge, Lahore. It was contended by the appellant that on the application of defendant No.2, letters of credit for US 10,000.$ (each) were opened by the appellant; the defendant No.3 stood guarantor and all the defendants executed various documents, thereby inter alia, undertaking to retire the shipping documents after paying the Bank's dues. It was further the case of the appellant‑Bank that despite various reminders, the defendants failed to retire the shipping documents and ultimately when the appellant‑Bank tried to clear the imported goods, it carne to their knowledge that the exporter of the consignment has shipped other items instead of agriculture spray equipment and hence the consignment could not be got cleared. In the above backdrop, the Bank filed two suits for the recovery of its outstanding dues. Both the suits were contested by the defendants Nos.1 and 2, while defendant No.3 was proceeded ex parte. The learned Civil Judge, seized of the matter, framed the following solitary issue: (1) Whether the plaintiff is entitled to recover the suit amount from the defendant for the grounds mentioned in the plaint? OPP. (2) Relief. With the promulgation of the Banking Companies (Recovery of Loans) Ordinance, 1979, the suits were transferred to the learned Judge Banking Court, constituted under the said Ordinance, by operation of law. In both the suits the appellant Bank produced same witness, namely, Muhammad Saeed Mughal, who appeared as P.W.1, and produced one document in evidence i.e. statements of accounts, which was exhibited as Ex.P.1. The learned Judge Banking Court, after hearing the appellant‑Bank, proceeded to dismiss both the suits, vide judgments and decrees dated 10‑4‑1997, hence the present appeals.

4. Despite citation in Daily "Nawa‑i‑Waqt" of its publication dated 20‑8‑2003, none entered appearance on behalf of the respondents, therefore, this Court, on 16‑9‑2003, proceeded ex parte. against the respondents.

5. The learned counsel for the appellant, while relying upon Messrs Farid Sons Ltd. v. Messrs Ghulam Farid Muhammad Saeed and 13 others PLD 1972 Lahore 311, has submitted that the suits could be decreed only on the basis of the statements of accounts, which is admissible in evidence of its own force.

6. Out of the pleadings of the parties, the learned trial Court framed the solitary issue, as noted above, the onus of which was rightly placed upon the appellant. Upon the examination of the available record, we find that although the appellant, at the time of the filing of the suits, annexed various documents with the plaint, such as application and agreement for irrevocable letter of credit, account opening form, specimen signature card, F.I.R. and various letters, statedly, addressed to the defendants by the appellant‑Bank, including the statements of accounts, yet admittedly, at the time of the recording of the evidence, the appellant‑Bank did not produce the said documents in evidence, except the statements of accounts, and thus they were not admitted in evidence and were not exhibited. In view whereof, the said documents are not proved documents under the law and do not form part of the record. The appellant‑Bank felt contended only by producing the statements of accounts (Exh.P.1) and one witness namely Muhammad Saeed Mughal, (P.W.1). Even the said witness, could not prove the alleged transaction, as highlighted in the plaints. Upon the perusal of the statement of P.W.1, we find that the said witness did not prove and support even the contents of the plaint and has only stated that the defendants opened the L.C. and later on refused to accept the shipping documents on account of which necessity arose for filing the suits. In his statement, he only produced copy of the statements of accounts, which was exhibited as Exh.P.1.

7. In the above perspective, it is evident that although the plaintiff led ex parte evidence, yet it could not prove its case. The appellant‑Bank felt satisfied only after submitting copy of the statements of accounts. As noted above, the appellant‑Bank was under an obligation to discharge the onus of solitary issue, however, in view of the evidence on record, we are of the view that the bank did not produce sufficient evidence to discharge the onus of the said issue. On the basis of the existing evidence, to our mind, the suits could not have been decreed and were rightly dismissed by the learned Judge Banking Court.

8. Now coming to the solitary contention raised by the learned counsel of the appellant‑Bank. There is no cavil to the proposition that under section 4 of the Banker's Books Evidence Act; a certified copy of any entry in Banker's Book shall be received as a prima facie evidence and admissible in evidence without any formal proof, as held in the case of Messrs. Farid Sons Ltd. ibid, relied upon by the learned counsel. That was the reason, why the learned Banking Court at the time of the recoding of the evidence, admitted the statements of accounts in evidence without any formal proof and exhibited the same as Exh. P.1. However, the mere admission of statements of accounts in evidence does not mean that the suits of the appellants are necessarily to be, decreed, as to our view the appellant‑Bank in addition to the statements of accounts, had to prove all the documents, relied upon by it and the transaction, as highlighted in the plaints. The learned Judge Banking Court has rightly dealt with the said contention of the learned counsel. It appears appropriate to reproduce the portion of the impugned judgment, which in fact clinches the whole matter, which reads as follows:‑ "

7. The learned counsel for the plaintiff has argued that the suit be decreed in favour of the plaintiff‑Bank in view of section 4 of the Bankers Books Evidence Act, 1891. This is submitted that a certified copy of any entry in a Bankers Book is prima facie evidence of the matters, transactions and accounts therein recorded in every case. There is no doubt that the presumption of truth is attached to the entries made in a certified copy of the Bankers Book, but such a statement of account is itself no piece of evidence or proof of the transaction of loan or some other transaction under the loan or some other transaction like L.C. etc. A certified copy of the entries adduced into evidence under a certificate as per section 4 of the said Act is a good proof of the entry in a book of account maintained by the Banker and evidence of the matters, transactions and accounts recorded and maintained in such book and can be used for that purpose only but this record is not useful for proving the loan agreement or some other transaction about the opening of the accounts and acting of the parties under such accounts. In other words, a suit cannot be decreed merely on the basis of a statements of account which is Exh.P.1 in this suit."

9. The appellant‑Bank could not succeed in the suits only on the basis of the statements of accounts, without proving the documents filed in support of the plaint and the nature of transaction, as highlighted in the plaint. We are of the view that the learned Banking Court has rightly dealt with the matter, as noted above, to which no exception can be taken.

10. Now coming to the two statements of accounts Exh. P.1, on which much emphasis and reliance has been placed by the learned counsel. The said two statements of accounts bear only two entries, one of withdrawal of Rs.99,349 and Rs.99,369 and the other is credit entries of Rs.25,000 and thus the outstanding amounts in two statements of accounts have been shown as Rs.74,349 and Rs.74,

369. To say the least, the said two statements` of accounts are incomplete, sketchy and cannot be made basis for saddling the respondents with the liability of the suit amounts. It is not discernible from the said two statements of accounts that how, sum of Rs.99,349 and Rs.99,369 have been debited to the accounts of the defendants. We feel that such slipshod and sketchy statements of accounts cannot be relied upon and has rightly been discarded by the learned Banking Court.

11. Additionally, even the certifications of the two statements of accounts are not in accordance with the definition of "certified copy", as given in section 2(8) of Banker's Books Evidence Act, 1891. If the certificates of the statements of accounts are placed in juxtaposition with the definition of "certified copy", as per section 2(8) of said Act, one comes to art irresistible conclusion that certificates are not in accordance with the said definition and therefore, the statements of accounts are not the certified copies of the entries of the Books of Accounts.

12. In the above perspective, we have examined the impugned judgments and find that the same are legal and do not call for any interference by this Court in exercise of its appellate jurisdiction, therefore; the same are maintained.

13. Upshot of the above discussion is that the present appeals are devoid of merits, thus the same are dismissed leaving the parties to bear their own costs. M.A.W./U‑70/L. Appeal dismissed.