P L D 1983 Peshawar 31 (PLP)

4. The learned trial Judge, on the pleadings of the parties, framed the following issues :‑ (1) Whether the plaintiff has got a cause of action ? O. P. P. (2) Whether the Manager Habib Bank Khawaja Ganj Mardan is not the attorney of the plaintiff, if so, its effect? O. P. D. (3) Whether the suit is within time? O. P. P. (4) Whether the plaintiff is estopped from suing? O. P. D. (5) Whether the documents attached with the plaint are fraudulent, fictitious and inadmissible in evidence, if so, its effect? O. P. D. (6) Whether the tobacco of the defendant was pledged with the plaintiff and the former was given some amount m advance, if so, its effect? O. P. D. (7) Whether the defendant is entitled to Rs. 60,000 from the plaintiff by way of set off? O. P. D. (8) Whether plaintiffs are entitled to the recovery of Rs. 30,911.59 with interest as prayed for? O. P. P. (9) Relief.

5. The parties led evidence before the trial Court in proof of their respective claims. On conclusion of the trial the learned trial Judge decided issue No. 4 against the defendant. He discussed issues Nos. 1, 5 and 8 together and decided issue Nos. 1 and 8 in favour of the plaintiff‑Bank and issue No. 5 against the defendant. Issues Nos. 2, 6 and 7 were also decided by the learned trial Judge against the defendant and issue No. 3 was decided by him in the affirmative. Consequently, the learned trial Judge passed the decree as aforesaid in favour of the plaintiff Bank,

6. Not satisfied with the judgment and decree passed by the learned trial Judge the defendant has come up in appeal to this Court.

6. Not satisfied with the judgment and decree passed by the learned trial judge the defendant has come up in appeal to this Court.

7. The learned counsel for the appellant in his arguments raised three grounds. His first ground was that the manager of the plaintiff Bank, on whose instructions the plaint was drafted, and the suit filed, had no authority on behalf of the Bank to file the suit and similarly Mr. Dost Muhammad, who gave statement on behalf of the plaintiff‑Bank, also had no authority to give such statement. The learned counsel, therefore, urged that the suit having been filed by an incompetent person should not have been entertained and the solitary statement of the witness appearing for the plaintiff‑Bank having come from the mouth of the person having no authority to give such statement should not have been accepted by the trial Judge. Consequently, he argued, the suit was liable to be dismissed. His second ground was that the defendant, appellant herein, had pledged tobacco with the plaintiff‑Bank as a security for the so‑called debt, which should have been gold by the Bank and its proceeds adjusted against its claim and since the plaintiff‑Bank failed to sell the tobacco pledged with it, which lost its value by the passage of time thus putting the appellant to a great loss, the plaintiff Bank was not entitled to the decree prayed for. The third ground urged by the learned counsel for the appellant was that since the appellant had not admitted having signed the pronotes and the letters brought on record and relied upon by the plaintiff Bank, it was essential for the plaintiff Bank to prove all those documents in evidence in accordance with the law on the subject and since it was not done the learned trial Judge could not base his findings thereon and could not, , therefore, pass decree in favour of the plaintiff Bank. In this context the learned counsel submitted that the mere production of those documents in Court and copies on the record, without proving the signatures of the appellant thereon, was not sufficient to saddle the appellant with the liability. He further argued that the mere production of the copies of the account books on the record was also not sufficient, unless the person who made entries in those account books was produced in Court to prove the entries made by him therein. In support of his arguments the learned counsel for the appellant referred to P L D 1969 S C 477 and P L D 1976 Kar. 556.

8. By raising the aforesaid arguments the learned counsel for the appellant has assailed the findings of the learned lower Court on issues Nos. 2, 3 and 5 to 8.

9. The learned counsel for the respondent, however, argued that the suit, out of which this appeal arose, was filed by a proper person, who was having in his favour from the Bank power‑of‑attorney to 'file the suits. He also argued that Mr. Dost Muhammad, who appeared in the witness‑box on behalf .of the plaintiff Bank, also had in‑his favour the necessary power of‑attorney. The learned, counsel further argued that legally it was not necessary for the plaintiff Bank to first sell the tobacco pledged with it in order to adjust its proceeds against its claim and then bring a suit for the amount remaining unsatisfied. The learned counsel further argued that the plaintiff‑Bank was keeping books of accounts in the ordinary course of business and copies of the entries made in those books are to be received in evidence under section 4 of the Bankers' Books Evidence Act, 1891. He, therefore, urged that it was not necessary for the plaintiff‑Bank, to summon the person who made those entries to prove the same. He further' submitted that the pronotes and the letters brought on record, duly exhibited, together with the admissions made in the written statement as: well as in the statement given in Court, were sufficient corroboration of the entries made in the books of account. He, argued that the learned trial Judge was right in deciding the issues in the manner he did and the judgment and the decree passed by him are unassailable. The learned counsel for the respondent, in support of his arguments, referred to P L D 1972 Pesh. 175, P L D 1968 S C 140 and P L D 1969 S C 136.

10. As to the first ground urged by the learned counsel for the appellant, which was also pressed before the trial Court, the learned trial Judge held that Mr. Muhammad Jahangir, Manager of the relevant branch of the Bank, on whose instructions the plaint was drafted and the suit instituted, was having at the relevant time proper power‑of‑attorney to institute and conduct the suit on behalf of the plaintiff‑Bank. The said power‑of attorney given by the Bank authorities, though brought on record but not exhibited to which this Court could legally refer, in its paragraph 9 contained the authorisation to do the things of the nature which were disputed by the appellant. Similarly, Mr. Dost Muhammad also had in his favour a similar power‑of‑attorney, which was produced by the learned counsel for the respondent before me, on the basis of which he had the authority to appear in the witness‑box to record evidence for the plaintiff Bank. It is also a matter of common knowledge that a manager of the Ban is always appointed as attorney of the branch he heads to conduct day to day business of the Bank and also to do the things of the nature now disputed. This is a common practice in this trade, of which judicial notice can be taken. For the reasons aforesaid, the finding of the learned trial Judge on issue No. 2 is well founded. The first argument of the learned counsel for the appellant is, therefore, without substance.

11. The second ground urged by the learned counsel for the appellant is equally untenable. According to the provisions contained in section 176 of the Contract Act it was not essential for the plaintiff‑Bank to have first sold the tobacco pledged with it and after adjusting the sale proceeds thereo against the claim to have then sued for the balance amount, if any. The plaintiff‑bank had under that section of law the option either to sell the goodsh pledged with it or to retain them as a collateral security and bring a suit against the pawnor upon the debt. It was only after the goods were sold that the pawner could claim its adjustment against the debt, and not otherwise. In a case of this nature, then the goods were losing price every year, it was also the duty of the pawner to have asked the pawnee to sell the goods or permit him to find customer therefor. No cogent evidence has been led by the appellant to prove that he did make effort in that respect. In these circumstances, the second ground urged by the learned counsel for the appellant, as already said, is without substance.

12. We are now left with the third ground taken up by the learned counsel for the appellant His argument was that the case of the plaintiff Bank was based on the documentary evidence brought on record at the trial, which was accepted and relied upon by the learned trial Judge for giving findings on the matter in controversy. His objection was that since the persons who had made the relevant entries in the account books kept by the plaintiff‑Bank were not produced in evidence to prove those entries, the same could not be received in evidence by the Court, muchless relied upon. In the same sequence his objection was that since the various pronotes and other letters and acknowledgments relating to the debt, in question were also not proved in evidence, repecially when the appellant had denied his signatures thereon, the same could not be relied upon for the purpose of charging the appellant with liability.

13. It is true that mere production of the account books kept by any business concern in regular course of business does not constitute evidence of the entries made therein. Such entries in order to constitute evidence need to be proved by calling the person who made them as a witness in Court. However, there is an exception to this rule in the case of a Bank, to which the Bankers' Books Evidence Act, 1891 applies. Section 4 of this Act allow a certified copy of any entry in a banker's book to be received as prima facie evidence of the existence of such entry and is also admissible as evidence o the matters, transactions and the accounts therein recorded. This, however, does not mean that mere production of such copies in Court would by itself be sufficient to charge a person with liability. Such entries also do required corroboration to make the person liable to pay the amount stated therein. The nature or the extent of the corroboration would, however, depend on the circumstances surrounding each transaction and the reliability of the manner in which the account has been kept. To the extent that the certified copies of the account books produced in evidence by the plaintiff‑Bank should not be regarded as evidence in the case, therefore, the arguments of the learned counsel for the appellant are without substance. While taking this view T am supported by the decision of the Supreme Court in Messrs Muhammad Siddiq Muhammad Umar's case (P L D 1966 S C 684). The authorities relied upon by the learned counsel for the appellant, being not relevant on the point, are not helpful to the appellant's case. Those cases related to the account books kept by the private persons, firms or companies and not by the Banks. In the case of a Bank, such books and entries made therein, as already said, become admissible in evidence, under section 4 of the Bankers' Books Evidence Act, 1891, by producing certified copies thereof in Court without calling the person who made then in the witness‑box to formally prove them. But in the case of a private person, firm or a company no such law is available, with the result that in their case such entries need to be formally proved.

14. The point which now requires to be considered is whether or not there is available on the record the necessary corroboration.

15. The plaintiff‑Bank, in addition to placing on record the certified copies of the account books, has brought on record the copies of the pronote dated 20‑6‑1966, the pronote dated 14‑1‑1969 and the pronote dated 4‑5‑1971, alongwith three letters of the relevant dates, and the two original confirma tion letters dated 30‑6‑1970 and 31‑12‑1972. These documents were produced D at the time of recording the statement of Mr. Dost Muhammad, Manager o the Bank, and were admitted in evidence and duly exhibited without an objection by the opposite side. All these documents were stated to have been signed by the defendant (appellant herein). If any objection respecting the signatures of the defendant (appellant herein) on these documents was to be taken, the same should have been taken at that time, which would have then put the plaintiff‑Bank on alert to formally prove them. Having not done so at the proper time, the defendant (appellant herein) could neither be permitted to raise such objection at the arguments stage before the learned trial Judge nor before this Court. In this view of the matter I have the support of a Division Bench judgment of this Court in Muhammad Yousaf Khattak's case (P L D 1972 Pesh. 175) and also of the Supreme Court in Abdullah's case (P L D 1968 S C 140) and Malik Din's case (P L D 1969 S C 136). These documents, therefore, stand proved in evidence, as also the signatures of the defendant (appellant herein) thereon. Further more, the original pronotes dated 20‑7‑1966 and 14‑1‑1969 were brought on record by the plaintiff‑Bank at the instance of the learned counsel for the defendant (appellant herein). The signatures of the defendant (appellant herein) on these pronotes and on the original confirmation letters dated 30‑6‑1970 and 31‑12‑1972, when compared with his signatures on the written statement, the power‑of‑attorney given by him to his counsel and his son Noor Habib, the grounds of appeal and other documents filed by him in the lower Court as well as in this Court, even to a naked eye appear to be those of the defendant (appellant herein). I am, therefore, satisfied, and so was the learned trial Judge, that the pronotes and the confirmation letters referred to above were duly signed by the defendant (appellant herein) and his denial of the same was nothing but a lie. The defendant (appellant herein), even from the beginning, gave evasive replies in his written statement to the specific allegations made in the plaint by the plaintiff‑Bank regarding the execution of the pronotes and the letters filed with the plaint, as also above the genuineness of the claim. He, however, in cross‑examination, admitted to have received Rs. 20,000 as an advance from the plaintiff Bank.

16. The pronotes and the letters referred to above signed as they were by the defendant (appellant herein), constituted valid acknowledgment of the debt as also the interest accruing thereon and all these acknowledgments were made by the defendant (appellant herein) before the expiry of limitation.

17. To sum up, the evidence brought on record was sufficient to prove that a sum of Rs. 20,000 was advanced as a loan by the plaintiff Bank to the defendant (appellant herein). This amount and the interest accruing thereon was duly entered in the account books kept by the plaintiff Bank in the ordinary course of business, which were produced in evidence and duly exhibited. The receipt of the amount and the interest to be charged thereon was duly admitted by the defendant (appellant herein) by executing various pronotes and confirmation letters on different dates, which were duly exhibited in evidence without any objection. He also admitted in his cross examination to have received the sum of Rs. 20,

000. The acknowledgments in writing of the debt and the interest, signed by him before the expiry of limitation period and proved in evidence, are on the record. This evidence with no cogent rebuttal, was more than enough to prove the case of the plaintiff Bank. The learned trial Judge was, therefore, right in deciding issues, Nos. 1, 3 and 8 in favour of the plaintiff‑Bank issue No. 5 against the defendant (appellant herein). His findings on all these issues are, therefore, maintained.

18. There being no merit in this appeal, it is hereby dismissed with costs. S. Q. Appeal dismissed.