1990K239 (PLP)

rived these documents and issued receipts to the plaintiff. As many a5 17 Months have passed but the defendants have been avoiding the payment on one s pretext or the other. Ultimately they refused to make payment on the ground that the plaintiff should submit the Identity Cards of all those persons in whose names the accounts were opened. The plaintiff has also claimed 30% profit which he would have earned if the amount was paid to him in time and has estimated the loss of Rs.33,38,825.00. Hence the plaintiff has claimed the principal amount of Rs.37,09,850, interest accrued on 177 Saving Accounts and one Khas Deposit Account amounting to Rs.15,52,327.77, loss of profit at 30% amounting Rs.26,58,895.23, Defence Saving Certificates of Rs.4,500 interest on Defence Saving Certificates Rs.7,156.67. Hence this suit for recovery of the above amount as well as continuing damages at the rate of 30% and costs etc.

3. The suit was contested by the defendants who filed a joint written statement wherein it was admitted that the plaintiff did open 178 accounts in different fictitious names but that was done contrary to the law, rules and regulations with a criminal intention in collusion with one Khawaja Javed Ahmad the then National Savings Officer of the Branch concerned. The defendants did not challenge the truth of the allegations of the plaintiff that he had opened accounts in the names of different persons on the advice of the then Officer Incharge of PIB Colony Branch. It was further stated that the defendants had no knowledge about any such, advice. The opening and closure of 18 other Saving Accounts was also admitted. It was alleged that these 18 accounts were also opened contrary to law, rules and regulations but since the same were not detected before their closure, hence no action could be taken. It is stated that a criminal case had also been registered with FIA wherein a challan had been submitted before Special Military Court. It is also admitted that the pass books etc. were received from the plaintiff but it is alleged that the same was done to assess the amount of loss on account of fraud committed by Khawaja Javed Ahmad Ex‑National Savings Officer. The Government had agreed to make payments to such account‑holders from whose saving accounts misappropriations were made by Khawaja Javed Ahmad subject to the account‑holders' filling up prescribed documents furnishing information of National Identity Cards. This was done to avoid the payment to any wrong perons. The plaintiff had also been required to furnish requisite form and furnish the National Identity Cards so that payment should be made to him which he had not done. It is, however, stated that the plaintiff can always get the amount as and when required by him subject to the rules and regulations. It is denied that the plaintiff has suffered a loss to the extent of Rs.32,38,825.

4. On the pleadings of the parties only one issue was framed which reads as under:‑‑ "Whether the defendants are justified in refusing to make payment in respect of .178 accounts opened by the plaintiff on the ground that they were opened in fictitious names." My finding on this issue with reasons, therefore, is as follows:‑‑

5. The plaintiff examined himself as Ex.4 and repeated whatever he has stated in the plaint. As such it need not be reproduced. . As against this the defendants have examined Rafiullah Shaikh, Joint Director National Savings Department as Ex.5, who has produced specimen form as Ex.5/1. He has also produced the forms under which accounts were opened by ` the plaintiff as Exs.5/2 to 5/132. He has produced 79 withdrawal slips under which the withdrawals were made by the plaintiff. He has stated that the plaintiff did open all these accounts at their PIB Colony Centre in different names which were fictitious. He has also admitted that the plaintiff had made certain withdrawals from these accounts. He has however stated that the amount claimed by the plaintiff was not available in the record of the Savings Department and has denied the claim saying that the accounts were opened in the fictitious names and there is no balance except few rupees against the amounts claimed by the plaintiff. In his cross‑examination to Mr. Mansoorul Arfin, Advocate he has admitted that he could not point out any specific provision of law under which opening of an account in a fictitious name is prohibited. He has stated that the general principle is that the form is to be filed in the name of the person who opens account. He has stated that if it comes to the knowledge of the defendants that an account in fictitious name is being opened they do not accept such account. It is contended by Mr. Hamid Hussain, Advocate for defendants that the plaintiff had admitted in his cross‑examination that on seeing 130 account opening forms and checking out each one of them, he said that the signatures on each of them was not in his handwriting and as a matter of fact none of them was signed in his handwriting. Hence he has concluded that these account opening forms were submitted by some different persons. I do not agree with the contention of Mr. Hamid Hussain. The defendants have not said so in their written statement. On the contrary they have admitted that all these accounts were opened by the plaintiff and that he had deposited all these amounts in the names of fictitious persons. It was next contended by Mr. Hamid Hussain that there was no privity of contract between the plaintiff and defendants. The contention of Mr. Hamid Hussain is not borne out from the written statement and, therefore, cannot be taken into consideration.

7. The short point involved in this case would be as to whether a person who opens an account in a fictitious name is entitled to get back the amount deposited by him with the banker or not. Mr. Hamid Hussain could not produce any law under which the defendants could refuse to make payment to the plaintiff. The restriction which is placed on the opening of an account without submitting National Identity Card or G.R. number can at the most entitle the A bankers to refuse to open the account. Once the bankers accept the account of a party and receives money from him, then in the absence of a legal provision to the s contrary, neither under the law nor on the principles of natural justice it can refuse to return the amount, to the party, as well as interest that accrues thereon.

8. I, therefore, decree the plaintiff's suit for the following amounts:‑ (1) Rs.37,09,850 as principal amount. (2) Profit/interest accrued on 177 Savings Accounts and one Khas Deposit Account at the usual rate amounting to Rs.i5,52,327.77. (3) Rs.4,500 the amount on Defence Savings Certificates. (4) Rs.7,156.67, the interest on Defence Savings Certificates. In all Rs.52,73,834.

9. Mr. Mansoorul Arfin very frankly conceded that the plaintiff will not be entitled to claim loss of profit at 30% when he has already claimed interest on the amount. Hence he does not press his claim of loss of profit at 30% amounting to Rs.26,58,895.23.

10. I, therefore, decree plaintiff's suit for a sum of Rs.52,73,

834. I also direct that the costs of the suit shall be borne by the defendants. I also allow interest to the plaintiff from the date of filing of the suit upto the date of the payment of decretal tunount at the rate of 15% per annum. A.A./M‑892/K Suit decreed.