1992 PLP 1041 (MLD)

This suit had been filed by the plaintiffs for the recovery of Rs.202,587.42 from the deceased defendant Abdul Karim Jaffarani. The case of the plaintiffs is that the defendant was granted overdraft facility by the plaintiffs' Stock Exchange Branch and by way of security a promissory note in the sum of Rs.2,00,000 was executed by the deceased defendant on 12‑3‑1970 and also he executed a Letter of Continuity and Letter of Lien for advance against shares etc. It is further the case of the plaintiffs that the account of the deceased defendant was alive till 27‑9‑1974 when the last credit entry was made in his account with regard to the dividend received on the shares pledged by the deceased defendant with the plaintiffs. Since the defendant failed to repay the said amount, the plaintiffs have filed this suit.

2. The deceased defendant riled his written statement wherein he raised the plea that the suit is barred by limitation; and that the plaintiffs did not inform the defendant about the transfer of shares and crediting of the dividend in the account of the defendant. According to the Defendant the overdraft amount was all adjusted in view of the transfer of shares in favour of the plaintiffs bank and the receipt of dividends by them.

3. Out of the pleadings of the parties, the following issues were framed; (1) Whether the suit as framed is maintainable? (2) Whether the suit is barred by time? (3) Whether the plaint has been verified by a competent person, if not its effect? (4) Whether the overdraft facility was granted against the pledge of shares with 30% margin? (5) Whether the Plaintiffs transferred all the pledged shares in their own name in full adjustment of the outstanding amount of loan then due from the defendant and stopped charging interest with effect from 29‑12‑1972? If so, whether no amount remains due from the defendant to the plaintiffs? (6) Whether the plaintiffs sent to the defendant any debit or credit advice after the admitted last credit entry in March, 1971? If so its effect? (7) Whether the plaintiffs are liable to render to the defendant true and proper account of all shares, dividends and bonus? (8) Whether the interest charged is in accordance with the agreed rate? (9) Whether any cause of action accrued to the plaintiffs against the defendant? (10) Relief? During the pendency of this suit, the defendant had expired and his legal heirs were joined.

4. The plaintiffs have examined their officer, namely, Muhammad Yousuf, who has produced various documents. The defendants chose to remain absent and did not cross‑examine this witness. They also did not lead any evidence. 5. 1 have heard Mr. Inamul Haque, learned counsel for the plaintiffs and Mr. Arif Hussain, learned counsel for the defendant. At the very outset Mr. Arif Hussain, learned counsel for the defendants submitted that he would not make any submissions on the issues but pointed out that the legal heirs of the deceased defendant Abdul Karim Jaffrani did not inherit any assets from the deceased and, therefore, they would not be liable under the suit. He has placed reliance on the provisions of section 52 of Civil Procedure Code which reads as under: "

52. Enforcement of decree against a representative

(1) where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of the money out of the property of the deceased, it may be executed by the attachment and sale of any such property. (2) Where no such property remains in the possession of the judgment‑ debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment‑debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally." It may be observed that a plain reading of the above provision shows that the same would be applicable in case of execution application and would not operate as a bar to passing of a decree in the suit. My findings issue wise are as under: ISSUE NO. 1: This issue has not been pressed by the defendant, who has raised this plea. ISSUE NO. 2: On this issue Mr. Inamul Haque, learned counsel for the plaintiffs has submitted that in view of letter of Lien, the plaintiffs have been receiving the dividends on the shares of the defendant which, by his consent was being credited to his account and the last entry being that of 27‑9‑1974, this suit would be within time as the same has been filed in Court on 20‑11‑1974. It is accordingly held that the suit is within time. ISSUE NO. 3: This issue also was raised by the defendant and their counsel has not pressed this issue. ISSUES NOS. 4 to 6: On these issues the plaintiffs' witness has fully supported the plaintiffs' case. He has produced the promissory note (Exh.6), Letter of Continuity (Exh.7) Loan/Overdraft/cash credit limit letter duly signed by deceased defendant as Exh.8, Letter of Lien (Exh.9) and other correspondences. In these circumstances, these issues stand proved and are answered in favour of the plaintiffs. ISSUE NO. 7: This issue has not been pressed by the learned counsel for the defendant. ISSUES NOS. 8 & 9: These issues have also not been pressed by the learned counsel for the parties. ISSUE NO. 10: The plaintiffs have placed on record the statement of accounts as Anexure‑A with the plaint which shows that no interest is being charged. There is another statement of account "marked A‑2" which is placed on record by the plaintiffs which also does not show if any interest was charged. It is also admitted by the plaintiffs' witness in evidence that during pendency of suit, an application was moved by them being C.MA. No.2235/76 whereunder permission was given by the Court with the consent of other party authorising the plaintiffs to sell the pledged shares and thus the amount so realised was credited to the account of the deceased defendant. The statement of account marked A‑2 referred to above also shows that subsequently on 7‑10‑1989 a further amount realised from sale of shares was credited to the plaintiffs' account. The outstanding balance as on 31‑3‑1990, as shown in the statement of account A/2 is Rs.1,00,603.38. The promissory note Exh.6 shows that the agreed interest chargeable was 2‑1/2% over the published State Bank of Pakistan rate with a minimum of 7‑1/2% with quarterly rests. In these circumstances, the plaintiffs would be entitled to a decree in the sum of Rs.1,00,603.38 with interest at the minimum rate of 7‑1/2% from the date of decree till the date of realisation. A.A./U-113/K Suit decreed