MUHAMMAD NAFEES vs ALLIED BANK OF PAKISTAN LIMITED through Manager

' MIAN SAQIB NISAR, J.---The Australasia Bank, the original plaintiff of the case, which has now been merged into the Allied Bank of Pakistan, in the year 1978, brought a suit for the recovery of Rs.2,81,80000, against the appellant, claiming that, the appellant had availed the loan facility from the Bank in the year, 1976, to the tune of the suit amount and has failed to repay the same. The suit was contested by the appellant, and the written statement was filed in the Civil Court, where the suit was originally instituted, but on account of change in law, the matter stood transferred to the learned Special Judge Banking, under the provisions of Banking Companies (Recovery of Loans)

Ordinance, 1979, where the following issues were framed:-- Issues:---

(1) Whether the documents relied on by the plaintiff are forged and fictitious? If so, with what effect? OPD

(2) Whether the plaintiff had not advanced any loan to the defendant and the Manager of the branch named Akhtar Ali Shah had maneuvered to get five blank cheques of his (defendant's) account? If so, with what effect? OPD

(3) Whether the plaintiff is entitled to recover the suit amount with interest from the defendant?

GPP

(4) Relief.

2. The respondent-Bank examined Abid Ali, its Cashier, who claims to be posted at the concerned branch at Sheikhupura and has stated that, the documents Exhs.P.3 to P.9, which includes the D.P.

Note, Continuity Letter and General Form etc. Had been executed by the appellant in his presence.

The Manager of the plaintiff-Bank also appeared as P.W.1, but he was not the one, who was posted at the relevant point of time in the said branch. In the cross-examination of P.W.1, it was suggested that, the appellant had neither availed any loan from the Bank nor executed the said documents.

This also is the statement of the appellant, while appearing as a witness, rather he has taken up the defence that on account of some embezzlement in the Bank at the said branch, the plaintiff-bank got a case registered against the Manager of the branch and also the appellant, who was found guilty in that case and thus, same amount, which is alleged to have been embezzled, has been wrongfully shown to be the debt of the appellant, and suit has been based thereupon. Anyhow, after conclusion of the trial, the learned Judge Banking Court, Lahore decreed the suit of the respondent-Bank to the tune of the suit amount, vide judgment and decree dated 25-2-2002, hence this appeal

3. Learned counsel for the appellant has reiterated his submissions, particularly that the respondent-Bank has failed to prove the availing of loan by the appellant and execution of the alleged documents Exhs. P.3 to P.9. It is further argued that, these documents are not witnessed, even P.W.1 is not the witness of the said documents, and only has made a bald statement, that the appellant signed the documents in his presence.

4. We have heard the learned counsel for the parties. Abid Ali is the only witness, who claims that such documents were executed and the appellant affixed his signatures in his presence; in the cross-examination, suggestion was put to P.W.1, denying this fact. Besides, in the statement of the appellant, he also has denied the execution of the document and availing of any loan. Anyhow, the onus of issue about proving these documents, was on the shoulders of the respondent-Bank, which to our mind, has not been satisfactorily discharged. Abid Ali is not the witness of any these documents. He claims that the appellant had signed these documents in his presence, but there is no corroboration of his statement. As the basis of the Bank claim is solely founded on these documents, which the Bank has not proved in accordance with law, even no opinion of the handwriting expert has been sought in this behalf, therefore, the learned Banking Court has erroneously relied upon the documents, to hold against the appellant.

5. Learned counsel for the respondent, when confronted, why the handwriting expert was not examined for opinion about the signatures, he has no answer to give. However, he has simply relied upon Messrs International Traders through its Proprietor and others v. Union Bank Ltd. Lahore PLJ 2003 Lahore 1377(DB), to argue that because the statement of account has been produced in evidence, thus, presumption of correctness is attached thereto, resultantly, the liability of the appellant stood established. We are afraid, that presumption attached to the statement of account, is only to the extent that, whatever figures are given or reflected therein are true and as per the book of account. But there is no presumption that, on the basis of above, it may be presumed, that the, loan- had been obtained by the appellant. Resultantly, this appeal is allowed and the judgment and decree of the Banking Court is set aside, with the result that, suit of the respondent-Bank stands dismissed. No order as to costs.