UNITED BANK LTD. Versus TARIQ KAMAL

This is a suit for the recovery of Rs.1,77,564. The case of the plaintiff, as disclosed in the plaint is that the plaintiff is a Banking Company incorporated under the Companies Act, having its Head Office at I.I. Chundrigar Road, Karachi and amongst others having a branch known as S.I.T.E Branch, S.I.T.E., Karachi. The defendant was an employee of the plaintiff‑Bank and was working as `Assistant'. The defendant, as an employee of the Bank, was to perform all work entrusted to him. In June/July, 1984 the defendant was posted as Assistant in Accounts Department at U.B.L., S.I.T.E. Branch. He dishonestly and mala fide tampered with a Debit Voucher dated 11‑6‑1984 for Rs.22,72,475.27 by altering the same for Rs.24,72,475.27 by committing forgery. Thereafter he prepared a Credit Voucher for Rs.2,00,000 and credited the said amount in his P.L.S. Account No.171 in the said Branch, which was opened by him in the name of Tariq Siddiqui and thereafter withdrew the entire amount of Rs.2,00,000 fraudulently and illegally from the said P.L.S. account by various cheques between 14th June to 14th July, 1984. The above facts came to the knowledge of the plaintiff for the first time on 27‑7‑1985 when during the Annual Inspection of U.B.L. S.I.T.E. Branch, the Audit/Inspection Team noticed the interpolation/tampering in the corresponding debit voucher. The plaintiff‑Bank, therefore, immediately lodged the complaint/F.1.R. which was registered on 27‑7‑1985. The Special Court (Offences in Banks) after hearing the defendant and his advocate held that the defendant had withdrawn the entire amount of Rs.2,00,t100 credited in his account P.L.S.171. The Court further was pleased to convict the defendant for having committed the criminal breach of trust of Rs.2 lace and sentenced for 2 years.

2. That after the discovery of the fraud, the defendant deposited a sum of Rs.15,000 in cash and Rs.50,000 by cheque and promised to pay the balance in a few days. After adjusting the amount of Rs.65,000 (Rs.15,000 + 50,000) deposited by the defendant, a sum of Rs.1,35,000 was due and payable by the defendant which he failed/refused to pay. The interest calculated on Rs.1,35,000 at the rate of 14% p.m. comes to Rs.42,564 and as such a sum of Rs.1,77,564 is due and payable by the defendant till the filing of this suit and the defendant is further liable to pay interest @ 14% p.m. till the payment.

3. After filing of this suit, notice was issued to the defendant and in spite of repeated efforts the notice could not be served on the defendant, as he was not available at the given address. Once the notice was also pasted on the outer door of his house on 26‑3‑1988 and therafter the service was effected through publication in the Daily `Leader' on 29‑5‑1989. The defendant did not appear and the service was held good and the case was put up for final disposal today.

4. 1 have heard Mr. Arif Hussain Khilji, learned counsel for the plaintiff. He has submitted that in spite of the service through publication the defendant has remained absent and therefore, the suit should be decreed as prayed. He has referred to Rule 155 of the Sind Chief Court Rules which reads as under:‑‑

"155. If on the day fixed for his appearance in the writ of summons the defendant does not appear and it is proved that the summons was duly served, the suit shall, whether the summons was issued for final disposal or not, be set down for final disposal on the next or some subsequent short cause day."

The learned counsel for the plaintiff has also placed reliance on the provisions of Order VIII Rules 1 and 10, Cr.P.C. which read as under:‑‑

"Order VIII

Written Statement and set off.

(i) Written statement.‑‑ The defendant may, and, if so required by the s

Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence;

Provided that the period allowed for filing the written statement shall not ordinarily exceed ninety days.

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(10) Procedure when party fails to present written statement called for by Court.‑‑ Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, The Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."

The learned counsel has also placed reliance on the case of Mst. Bilqees Begum v. Syed Ali Turab and others 1980 C L C 930, wherein M.S.H. Quraishi, J. (as he then was) has held as under:‑‑

"7. If the arrangement of Order VIII is carefully examined, it would become clear that Rules 2 to 8 serve only to qualify and clarify Rule 2. They are in fact an extension of that rule. I find great force in the observation of Ayling, J. that if they were to be treated as part of Rule 1 and if rules 9 and 10 were numbered as Rules 2 and 3 it would be hard to contend that Rule 3 applied only to Rule 2 and not to Rule 1. I am, therefore, in respectful agreement with the view repeatedly taken in this Court that the words `so required' used in Rule 10 do reach and cover Rule 1 also. Even otherwise, it is inconceivable that the Code while providing a drastic penal measure for default in presenting a subsequent or additional written statement, would not take care of a default in filing the main written statement. In this regard, too, I respectfully endorse the observation of Ayling, J. which found echo also in the aforecited case of Sh. Abdul Saboor etc. in the following words:‑‑

`The situation contemplated in Rule 1 is more serious than the one in Rule 9. To apply, under the circumstances, Rule 10 only to a case covered by Rule 9 and not to a case to which Rule 1 applies, will result in inconsistent positions. Rule 10 in fact applies both to Rules 9 and 1'.

I am, therefore, confirmed in my view that the interpretation put by this Court from time to time in regard to the scope of Rule 10 is correct, and that it covers a failure to file written statement required by Court under Rule 1 also."

5. In view of the above discussion, I am of the view that the defendant having failed to file the written statement in the present suit, the suit has been properly placed in Court for final disposal and there being no rebuttal to the case of the plaintiff, the suit is to be decreed. I accordingly decree the suit with costs as prayed.

H.B.T./U‑64/K Suit decreed.