1983 PLP 1556 (CLC)

This Revision Application challenges the judgment and decree passed by the II Senior Civil Judge at Karachi on 18th May, 1977, decreeing the suit of the respondent No. 1 for Rs. 20,144.17 and the judgment of the 1st Addi tional District Judge, Hyderabad, dated 25th October, 1980 dismissing the appeal of the applicant ; on the ground that both the decisions are due to misreading of the facts on record and are illegal. The facts leading to the filing of this application are as under Respondent No. 1, a Banking Company incorporated under the National Bank of Pakistan Ordinance, 1949; doing business of banking all over Pakistan and having its Branch Office at New Cloth Market at Hyderabad, filed suit for recovery of Rs. 20.614.79 against the applicant, who was account holder with the aforesaid branch of the Bank and was operating account in the name of Ghulam Rasool s/o Allah Bux. He had applied for loan of Rs. 20,000 vide his application dated September, 1968 under the Peoples Credit Demand Scheme, which was sanctioned on hypothecation of his stock of goods in his shop at New Cloth Market at Hyderabad and on the guarantee of Mohammad Ibrahim s/o Haji Ahmad, defendant No. 2 (herein respondent No. 2 (a). The respondent‑Bank gave a cash credit loan of Rs. 20,000 on 19th September, 1968 which was to be repaid on demand of a promissory note executed on 19th September, 1968 by Ghulam Rasool, defendant No. 1 (the applicant herein). The promissory note was with in terest at the rate of 2% above the bank rate with minimum 7% per annum with monthly rests and the promissory note which was in favour of Mohammad Ibrahim s/o Haji Ahmad, the guarantor, defendant No. 2 (here in respondent No. 2 was duly endorsed by him as guarantor in favour of the bank on 19th September, 1968 for consideration received in cash by defen dant No. 1 (herein the applicant). Mohammad Ibrahim had also executed a separate agreement as guarantor in favour of the plaintiff Bank on the same date. The applicant and respondents Nos. 2 (a) & (b) had also execut ed a deed of hypothecation of goods in their shops for payment of the loan advanced. They had also given demand promissory note delivery letter of Rs. 20,000 of the same date to the respondent Bank dispensing with notice of dishonour under section 98 (a) of the Negotiable Instruments Act, 1881. The appellant, who was operating his P.C.D. account. after acknow ledging and admitting the outstanding dues against him, executed a balance confirmation slip on 31st December, 1970 with regard to outstanding dues upto that date. In the suit filed by the Bank, it was stated that the applicant was operating his account and the total shown ac the amount of claim was outstanding against him till June, 1971 inclusive of interest. It was further contended that the applicant and respondents Nos. 2 (a) & (b) herein were served with demand notices dated 20th February, 1970 but they had failed to pay the loan. In the written statement filed by the applicant preliminary objections were raised that the suit was not maintainable as it was barred under the provisions of Order XXIII, rule 1, C.P.C. being res judicata and that it was time‑barred. The answering defendant, namely. Ghulam Rasool (the applicant herein) had denied that he was operating the account in the name of Ghulam Rasool s/o Allah Bux or that he had applied for loan of Rs. 20,000 vide his application of September, 1968. It was his case that he was operating the account in the name of Shahabuddin s/o Allah Bux anti Company and that he had applied for a loan of Rs. 1,500 but he was sanc tioned a limit of Rs. 10,

000. It was further his case that be had repaid the loan to the extent of Rs. 4,400 upto 25th May, 1967 in piecemeal deposits made from time to time. He emphatically denied that he was ever given a loan of Rs. 20,000 as alleged and he had raised the contention that the pro missory note dated 19th September, 1968 was without consideration and was obtained from him by Bank authorities through misrepresentation and fraud. It was further his case that he had no knowledge of the contents of the documents over which his signatures were obtained and the same were obtained by representing that on his 'signing the documents, Suit No. 219 of 1967 would be withdrawn. A memorandum of deposits of title deeds was, therefore, deposited on the same misrepresentation. An amount of Rs. 7,869 was outstanding, for which he was depositing his title deeds and of which Rs. 3,200 have been paid upto 26th July, 1970 and a sum of Rs. 4,664.30 was in balance against him which he is liable to pay. On the pleadings of the parties (he following issues were settled by the II Senior Civil Judge at Hyderabad : (1) Whether the suit is barred by provisions of Order XXIII, rule 1, C. P. C. ? (2) Whether the documents executed by the defendants are without consideration ? (3) Whether the documents were obtained by plaintiffs by misreprsesnta tion ? If so, what is its effect ? (4) Whether the title deeds were deposited by the defendants for a sum of Rs. 7,869.13 (suit amount of Suit No. 219/1967) as surety ? (5) Whether the defendants have deposited Rs. 3,200 ? (6) What amount is due and payable by the defendants ? (7) What should the decree be ? The learned Senior Civil Judge, Hyderabad gave finding with regard to issues Nos. 1 to 4 in the negative and with regard to issue No. 5 in the affirmative and he accordingly decreed the suit against the applicant for the amount claimed with interest at 9% per annum from the date of suit till realisation. The appellate Court dismissed the appeal and maintained the judgment and decree of the trial Court. It is apparent from a perusal of the two im pugned judgments that the fact that the Bank had withdrawn the previous suit against the applicant unconditionally could not be considered to make the suit filed by the Bank to be res judicata. The learned trial Court observed that the withdrawal statement dated 20th April, 1968 could not be considered as the claim in the instant suit was based on security documents which were executed much after the withdrawal of the previous suit on 19th September. 1968 and the aforesaid documents gave fresh cause of action to the respondent Bank for failure of the applicant to keep up his commitment as ensured in the promissory note. It is also apparent that the applicant on his part had admitted that the demand promissory note and other document bear his signatures and, therefore, the presumption under section 118 of the Negotiable Instruments Act, 1881 was drawn that the Negotiable Instrument was made and drawn for consideration and was endorsed and negotiated for consideration. The trial Court and the appellate Court, therefore, did not accept the contention of the applicant that the signatures had been obtained on the documents by misrepresentation or fraud. It is further clear from the judgment of the appellate Court that the withdrawal of the previous suit was considered as having furnished adequate consideration to the applicant for executing the aforesaid documents and the applicant had not led any satis factory evidence to show that there was misrepresentation or fraud in exe cuting the documents. In the circumstances stated above the impugned judgments which are on p points of fact and are concurrent appear to have been based on the evidence on record and cannot be considered to be arrived at by misreading of the record. The same, therefore, cannot be interfered with in exercise of revisional jurisdiction by this Court. In the result the Revision Application is dismissed with costs. K. M. A. Application dismissed.