1984 PLP 682 (MLD)

15,635.00 Similarly under the second account following acknowledgements in writing were made by the defendant:

Rs. Exh. 16 30-7-1965 51,923.47 Exh. 17 31-12-1965 54,007.15 Exh. 18 30-12-1966 57,533.07 Exh. 19 31-12-1967 60,702.00 Exh. 20 31-12-1968 18,596.00 Exh. 21 31-12-1969 20,250.00 Exh. 22 31-12-1970 22,091.00 Exh. 23 31-12-1971 24,246.00 Under the third account following acknowledgements in writing were made by the defendant:-- Rs. Exh. 25 30-6-1965 22,795.44 Exh. 26 30-12-1966 25,990.84 Exh. 27 31-12-1967 28,501.36 Exh. 28 31-12-1968 27,780.00 Exh. 29 31-12-1969 30,603.00 Exh. 30 31-12-1970 33,784.50 Exh. 31 31-12-1971 37,293.00 All the above acknowledgements have been admitted by the defendant's counsel by making such endorsements on the originals. Thus it will appear that each acknowledgement under every account was made within one year of the preceding acknowledgement or the date of Promissory Notes. The last acknowledgement in respect of every account is also within one year of the preceding acknowledgement. The suit was filed on 15-9-1972 i.e. within one year of the date of the last acknowledgement. Hence the suit is within time. Mr. Noor Muhammad learned counsel for the defendant, in view of the above acknowledgements did not press this issue very seriously.

9. Issue No.6. It is not understood how Mr. Noor Muhammad has pressed this issue. The last acknowledgement in respect of the first account is Exh.13. Mr. Noor Muhammad has himself endorsed "admitted" under his signature on 13-9-1983 on this document. By this document the defendant has admitted balance of Rs.15,635 as on 31st December 1971 in Account No.A-106. Similarly the last acknowledgment in respect of the second account is Exh.23 and this document also bears endorsement of Mr.Noor. Muhammad of "admitted" under his signature, dated 30-9-1983. By this acknowledgement the defendant has confirmed the balance of Rs.24,246 outstanding against him on 31-12-1971. Similarly the last acknowledgement in respect of the third account is Exh.31. On this document also Mr. Noor Muhammad has made an endorsement "admitted" under his signature on 13-9-1983. The defendant by this acknowledge ment has confirmed the balance of Rs.37,293 outstanding against him as on 31-12-1979. The plaintiff has totalled all these three amounts under the three acknowledgements and added interest upto the date of the filing of the suit. The total thus arrived comes to Rs.81,

000. Mr. Noor Muhammad unable to rebut the documentary evidence referred to above. On the contrary the plaintiff has based his claim on the documents which have been admitted by the defendant. This issue is decided in the affirmative.

10. Issue No.

7. Mr. Noor Muhammad learned counsel for the defendant has argued that the balance under the three accounts could not have been merged into one and treated as the realisation account. According to him, the amalgamation of the three accounts could have taken place only with the consent of the parties. In support of this plea he has relied on the case of 'The Australasia Bank Ltd. v. H.S. Mahmood Hassan Akbar and 2 others' P L U 1983 Kar. 431 particular reference has been made to the following observations in the above judgment in respect of relationship of banker and customer in maintaining the current account:

"The relationship of banker and customer in maintaining the current account is purely of a debtor and a creditor. The bank is fret; to use the money as his own like any other borrower as the customer parts with the control over it retaining only his right to repayment. In overdraft accounts the bank always advances money to its customer and the relationship is mostly governed by the agreement between the parties. But cases may arise where spontaneous transactions may be required without previous arrangement and such temporary advances are payable on demand. In. all respects and in all circumstances a banker is required to act without negligence and should perform his duty properly find diligently subject to the agreement and/or banking practice. The elementary duty of the banker is to maintain a correct and true account of the dealings between the parties. If a customer without checking the statement of account furnished by the bank and relying on the balances drawn in such statement of account, executes documents or confirms the balance but at a subsequent time the customer is able to show that the entries ill the statement of account are not correct then the very basis all which such confirming document was executed loses its authenticity. In such circumstances a customer is entitled to call for the accounts and the banker is bound to render a true and correct account of the entire dealings." It is not understood how the above observations are attracted to the facts of the present case. The main argument is that the merger should have taken place with the consent of the customer. Now even if the merger of the three accounts into one had been made without consent of the defendant, what difference it would make so far as the total liability of the defendant under the three accounts is concerned. Even if there had been no merger, the plaintiff could have brought one suit for the balances under the three accounts, in view of the provisions of rule 3 of Order II, C.P.C. This plea has, therefore, no substance and the issue is decided against the defendant.

11. Issue No.

9. In view of the admitted position the total amount under the three accounts, according to acknowledgements Exhs.13, 23 and 31, would come to (Rs.15,635 + 24,246 + 37,293) Rs.77,174 as on 31-12-1971. According to the three promissory notes executed by the defendant in respect of each one of the three months, the defendant had agreed to pay interest @ 2% above bank rate. The amount under the first account was secured by Promissory Note Exh.14, executed by the defendant in favour of the plaintiff. This document is also admitted by Mr. Noor Muhammad learned counsel for the defendant under his endorsement, dated 13-9-1983. According to this Promissory Note which is, dated 16-11-1964, the defendant had undertaken to pay interest on the balance at the rate of 2'b above bank rate with a minimum of (Sic)%. In respect of balance of the second account the amount was secured by a Promissory Note which is Exh.24 executed by the defendant in favour of the plaintiff bank. This document also bears endorsement of admission under the signature of Mr. Noor Muhammad Advocate, dated 13-9-1983. By this Promissory -Note the defendant had undertaken to pay interest on the balance @ 3$ above bank rate with a minimum of 7%. So far as the balance under the third account is concerned, it was not secured by any Promissory Note. However, the suit was filed on 15th September 1972 i.e. after 9 months of the date of the last acknowledgement by the defendant. The plaintiff .was entitled to add interest for nine months to the balance of Rs.77,174 and file suit for the sum arrived at after so adding the interest. Thus, the plaintiff has rightly brought this suit for Rs.81,000 against the defendant. In view of the above findings the plaintiff's suit for Rs.81,000 is decreed with cost. The defendant shall also be liable to pay interest at 7% per annum from date of the suit upto the date of the decree and interest at the same rate on the decretal amount from the date of the decree upto the date of payment. Decree to issue accordingly. M.I Order accordingly.