1987 PLP 594 (MLD)

(14) Whether there exists any privity of contract between the defendant No.2 and the plaintiff? (15) To what decree is the plaintiff entitled if any, against any of the defendants? Issue No.1. So far as defendants No.1 and 2 are concerned the suit is within time as the plaintiff has produced and prove documents Exs.P-3, P-4 and P-5, dated 21-1-1971. By document Ex.P-5 the defendants No. 1 to 3 have acknowledged their liability to pay the amount of Rs.1,20,259.93. By Ex.P-3 the defendants No.1 to 3 have agreed to pay Rs.1,89,598.36. These documents have been produced by P.W.1 and, therefore, the suit filed on 13-1-1973 is within time. The defendant No.4 was an employee of tile Plaintiff and it has been alleged that in collusion with the defendants No.1 to 3 he has made unauthorized entries and had allowed the defendants No.1 to 3 make illegal gain. The defendant No.4 had also committed breach of duty which he was bound to perform by maintaining properly and honestly the transactions in the Bank. Mr. Mansoorul Arfin, learned counsel has contended that the defendant No.4 for purpose of the suit should be treated as an agent of the bank and as the claim is based upon fraud the period of limitation shall be governed by Article 90 or

95. The learned counsel has referred to Benaras Bank v. Ram Prashad 124 I.C. 180 where it was held that where the customer of a bank in collusion with a clerk employed in the bank, fraudulently withdrew sums of money from the bank in excess of what he could lawfully withdraw, and the bank instituted a suit against the customer and the employee to recover the excess amount withdrawn, the suit was governed in so far as employee's case was concerned by Article 90 and as regards the customer, the Article applicable was Article 48 or Article

95. This authority seems to be relevant to the present situation. Considering the defendant No.4 to be an agent of the plaintiff for performing the duties assigned to him, Article 90 will apply and the suit against him is within time. Even otherwise as the claim is based on fraud committed by defendant No.4 Article 95 may apply and the period of limitation will be computed from the date of the knowledge of fraud. Even from this point of view this suit is within time. Issue No.2. The burden of this issue is upon the defendants, who are not present. Nothing has been shown how the suit is bad for mis-joinder of causes of action and mis-joinder of parties. Issue No.3. The plaintiff has produced P.W.1 and has also filed affidavit in ex parte proof of Shaikh Bashir Ahmed. From the documents it is clear that the amounts mentioned in paras 5 and 6 were utilized by the defendants No.1 to

3. In any case even the defendants No.1 to 3 have executed letter Ex.P-3 on 21-1-1971, in which it is admitted that Rs.1,89,598.36 had been erroneously credited to their account in the past. According to P.W.1 after reconstruction of account the defendants No.1 to 3 were asked to examine it and after satisfying themselves about the correctness of the reconstruction of the account they executed P-3 on 21-1-1971 before him. My finding is, therefore, in the affirmative. Issue No.4. The allegation of the plaintiff is that this amount of Rs.22,762.90 is a total sum of three cheques which were paid to the defendants but no debit entry was made in the record nor these cheques are available. The plaintiff had made a debit entry of this amount on 24-3-1971. According to the plaintiff this amount was paid to the bank by a cheque but this cheque has not been produced. However, the learned counsel for the plaintiff states that this discrepancy has been explained by pronote Exhibit P-5 which was executed by defendants No.1 to 3 on 21-1-1971. the pronote amount of Rs.1,02,159.93 consists of the debit entry of Rs.79,397.03 as reflected in the list of statement of account Exhibit P-6 plus Rs.22,762.90 which was paid as stated above. This explanation has sufficiently clarified that the credit was due to non-production of the cheque which was alleged to have been deposited by defendants No.1 to

3. My finding is in the affirmative." Issue No.5. In view of my finding on issue No.4 these amounts as mentioned in para 10 of the plaint have wrongly been withdrawn. My finding is in the negative. Issue No.6. The plaintiffs have produced Ex.P-3. This is a letter writer by defendants No-1 to 3. -P.W.1 has stated that it was executed in, his presence. No evidence to the contrary has been produced. M 'y finding is in the affirmative. The document P-4, which is a letter, dated 21-1-1971 from the defendants No-1 to 3 has been produced and proved by P.W.1. As there is no evidence to the contrary my finding is that defendants No-1 to 3 have admitted their liability by this letter. Issue No.8. The defendants are not present to press this issue. Not pressed. Issue No.9. The present suit filed against defendant No.4 is in respect of the account standing in the name of defendants No.1 to

3. The defendant No.4 is not present to press this issue. It is, therefore, answered in the negative. No evidence has been produced by defendant No.4 and, therefore, it is answered in the negative. Issue No.11. The evidence of the plaintiff has remained unchallenged. From the statement of account and the documents produced by the defendants, it is established that the defendants acted in collusion with each to cause loss to the Plaintiff. My finding is in the affirmative.' Issue No.12. The debit entry, dated 20-11-1968 for Rs.2,222.90 on reconstruction was found to be unauthorised and has, therefore, been deleted from the statement of account of defendants No.1 to

3. Therefore, the reconstruction of the account is proper. Issue No.13. The burden of this issue is upon defendants No.1 and

2. They have not produced any proof. On the contrary the plaintiffs have produced documents and also examined P.W.1 who has stated that the defendants No.2 & 3 are partners and they have executed a promissory note as partners of defendant No.1. My finding is in the affirmative. Issue No.14. As the defendant No.2 is a partner of defendant No.1, had opened the account and had also executed the promissory note, he is liable jointly with other defendants. Issue No.15. The plaintiff is entitled to a decree for Rs.1,22,348.50 against the defendants jointly and severally with interest @ 10% per annum from the date of the suit till recovery and costs. A.A./N-28/K Suit decreed.