BANK OF OMAN LTD. Versus MUHAMMAD ALI & BROTHERS

MAULVI ANWARUL HAQ, J. ‑‑‑This judgment shall decide R.F.A. 272 of 1994, R.F.A. 273 of 1994 and R.F.A. 274 of 1994, as common questions are involved in these cases.

2. The suit out of which R.F.A. No.274 of 1994 has arisen was filed by the appellant‑Bank against Muhammad Ali & Brothers and the partners were also impleaded as parties. The Bank prayed for a decree in the sum of Rs.5,39,436.35 on the ground that a financial facility was availed by the said firm who executed the requisite security documents including D.P. Notes but had failed to pay the amount due. The plea taken by the respondents was that the facility was not allowed to be availed according to the terms of the agreement. In the other two suits out of which R.F.As. No.272 and 273 of 1994 have arisen were filed against the respective respondents by the appellant‑Bank stating that initially the said firm Muhammad Ali & Brothers opened its accounts and was allowed financial facility by the appellant‑Bank and on the request of the said firm the facilities were allowed to be availed by the respondents in the said two R.F.As. The security documents were mentioned in the plaint and execution of other documents including D.P. Notes by the said respondents was alleged. The suits were resisted by the respondent. In all these cases, leave to defend was granted and the written statements were filed. Issues were framed and evidence of the parties was recorded. A learned Special Judge Banking Court after proceeding to hold, that Promissory Notes being relied upon by the appellant‑Bank in all these cases are not valid documents, proceeded to dismiss the suit out of which R.F.A. No.274 of 1994 has arisen for the said reason while the other two suits were dismissed with additional reason that since Muhammad Ali & Brothers is actually borrower the suits against the respondents in the said case was not competent, in his Court. This exercise was undertaken vide judgment and decrees, dated 6‑10‑1994 in all these cases.

3. The learned counsel for the appellant contends that the learned trial Court has completely omitted to take note of the pleadings of the parties as also the evidence on record while dismissing the suit. Vehemently argues that the main basis of the impugned judgment i.e. the Promissory Notes were invalid documents is wholly misconceived. According to the learned counsel had the pleadings and evidence on record been properly read the result would have been different. The learned counsel for the respondent, on the other hand, argues that in view of the provision of Article 17 of the Qanun‑e‑Shahadat Order, 1984, the Promissory Notes were rightly declared to be void by the learned trial Court and the reason for dismissing the suits pertaining to R.F.A. 272 of 1994 and R.F.A. 273 of 1994 is also valid i.e. the respondents therein cannot be said to be the borrowers.

4. We have gone through the records, with the assistance of the learned counsel for the parties. We find that there is no denial of the execution of the said documents by the respective executants of the Promissory Notes and this is also the findings of the learned trial Court. He has, however, proceeded on the premise that the Promissory Notes were required to be attested by two witnesses in terms of Article 17 of the Qanun-e-Shahadat Order, 1984 and since these were not attested they are invalid. The learned trial Court was seized of the fact that the execution of the documents have not been denied. He has reproduced some excerpts from some commentary on Article 81 of the said Order to state that a party while admitting the execution of a document can urge that it was not properly attested.

5. We note with some regret that the learned trial Court has not been cared to read the said Article 17 which he has reproduced himself in the impugned judgment. Had he cared to read the said provision he would have found that it has been made subject to provisions of any law relating to the enforcement of Hudood or any other Special Law. Now the Promissory Note is an instrument provided for in the Negotiable Instruments Act, 1908. Section 4 of the said Act (also reproduced in the impugned judgment) provides the particulars of a Promissory Note in an absolute unambiguous term. According to this provision of the said Act, which of course is a Special Law in juxtaposition to the Qanun‑e‑Shahadat Order, 1984, the Promissory Note is an instrument in writing (not being a Bank Note or Currency Note) containing an unconditional undertaking signed by the maker to pay on demand or at a fixed or determined future time and certain sum of money only to or to the order or, a certain person or to the bearer of the instrument.

6. There is no provision for attestation of a Promissory Note and the only requirement is that the unconditional undertaking as provided in section 4 of the said Act is to be signed by the maker of the said document. All the Promissory Notes have been examined by us and we find that they are in perfect accord with the said section 4 of the said Act.

7. The learned trial Court while referring to some commentary on Article 17 of the said Qanun‑e‑Shahadat Order, 1984 had been reluctant to take note of the background in which Article 17 of the said Order had been enacted. The said Article and even language used therein is referable to the Holy Qur'an, and is in line with the command of Allah Almighty in "( ﺍﻠﺑﻗﺮﻩ )". The reason for the said command is thus stated that "it is justice in the sight of Allah most suitable evidence and more convenient to prevent doubts among the believers". To our mind, when a party claims money on the basis of a writing from the other party and the other party does not deny the execution of the said writing, there is no question of any doubt arising and of course it is not for a Court to help create doubt in the matter in the manner done by the learned trial Court. Thus from whatever angle seen, .the learned trial Court has erred in law rejecting the document on the said premises.

8. So far as the matter of dealing with the evidence by the learned trial Court is concerned. We find that even the respondent have felt dissatisfied and has filed cross objection complaining that evidence on record has not been properly dealt with to their detriment. The impugned judgments are shorn of reasons for the ultimate conclusion arrived at by the learned Judge Banking Court in all these cases. The R.F.A. as well as the objections are accordingly allowed. The impugned judgments and decrees are set aside. The result would be that the suits filed by the appellant‑Bank shall be deemed to be pending before the learned Banking Court' to whom the record shall be remitted by the office. After summoning the parties and hearing them the suits will be decided afresh in the light of the pleadings and evidence on record as also in the light of observations made above vis‑a‑vis the Promissory Notes, in accordance with law.

9. No order as to the costs.

S.A.K./B‑106/L Order accordingly.