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Civil Petition No. K‑197 of 1981, decided on 21st February, 1982.

‑‑‑O. XXXIV, r. 11‑‑Negotiable Instruments Act (XXVI of 1981), Ss.22, 32 & 64‑‑Suit on mortgage‑‑Payment of interest‑‑Decree awarding interest from date of promissory note, impugned‑‑Promissory note falls due on date when it is made and maker is bound to make payment on same date and presentation for payment is unnecessary.

Full Bench of Bombay High Court in Ganpat Tularam Mali v. Sopana Tukaram Mali A I R 1928 Bom. 35; Khurshid Haq v. Ramditta Mall A I R 1928 Lah. 665; Shaikh Imam Ali v. Ch. Muhammad Shafi PLD 1956 Lah. 341 and Norton v. Ellan 1837 2 M & W 461 ref.

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XXXIV, r. 1‑‑Suit on mortgage‑‑Sale of mortgage property‑‑Provisional Transfer Order of evacuee property issued by Settlement authorities‑‑Document of title of limited nature‑‑Suit for sale of mortgaged property‑‑Petitioner having deposited with Bank, Provisional Transfer Order of immovable evacuee property, issued in his favour by Settlement authorities‑‑Preliminary decree passed by High Court for sale of mortgaged property‑‑Petitioner's plea that P.T.O. was not a document of title for purpose of creating a mortgage of property, repelled on ground that under provisions of rule 37 of Settlement Scheme No. 1, holder of a P.T.O. is permitted to mortgage property transferred to him under P.T.O.

Nizam Ahmed, Advocate‑on‑Record for Petitioners.

Nemo for Respondent

Date of hearing: 21st February, 1982.

.‑‑National Bank of Pakistan, the respondent, filed a suit against petitioners on the Original Side of the former High Court of West Pakistan, Karachi Bench, under Order XXXIV of the Code of Civil Procedure for recovery of Rs.96,051.91, inter alia, praying for the sale of the mortgage property. Learned Single Judge in the High Court who dealt with the case held that no valid mortgage of the property was created in favour of the respondent bank, for, the Provisional Transfer Order of the property which was deposited by petitioners as the document of title did not vest right of ownership in the property in petitioners' favour. Learned Judge however took the view that in any case respondent‑bank was entitled to recover the principal amount of Rs.55,000 payable by the petitioners. Learned Judge also awarded interest to the respondent on the sum of Rs.55,000 at 6% from the date of filing of the suit till realization.

On appeal by the respondent‑bank, learned Judges of the Division Bench of the High Court, however, reached the conclusion that the Provisional Transfer Order did create certain rights in favour of the mortgagors and it was thus a document of title, although of a limited nature, and accordingly passed a preliminary decree in Form V‑A in Appendix 'D' of the First Schedule to the Code of Civil Procedure for the sale of the mortgage property. Learned Judges further held that the defendants were also liable to pay interest at the rate of 6 % from the date of the promissory note, and calculating the amount thus payable, passed the preliminary decree in the sum of Rs.82,132 with proportionate costs and the future interest, as allowed by the learned Single Judge.

Mr. Nizam Ahmed, learned counsel appearing in support of this petition for leave to appeal from the judgment of the High Court submits that the learned Judges of the Division Bench of the High Court have erred in taking the view that respondent‑bank is entitled to recover interest on the principal amount from the date of the pro-note. Learned counsel further submits that the learned Judges in the High Court have also erred in taking the view that the Provisional Transfer Order was a document of title for the purpose of creating a mortgage of the property.

We find that the learned Judges of the Division Bench of the High Court have after survey of entire case law followed the view expressed by the Full Bench of Bombay High Court in Ganpat Tularam Mali v. Sopana Tukaram Mali A I R 1928 Bom. 35, which was followed with favour by the Lahore High Court in Khurshid Haq v. Ramditta Mall A I R 1928 Lah. 665, and also in the later case of the Lahore Bench of West Pakistan High Court, in Shaikh Imam Ali v. Ch. Muhammad Shafi P L D 1956 Lah. 341. ‑The preponderance of the case law is that a promissory‑note falls due, within the meaning of section 22 of the Negotiable Instrument Act, on the date when it is made, and consequently under section 32 of the Act, the maker is bound to make the payment on the same date, and the presentation for payment is unnecessary, having regard to the provisions of section 64 of the Act. Therefore, the date at which the suit pro‑note ought to have been paid by the party charged within the meaning of section 80 of the Negotiable Instrument Act is the date of the pro‑note itself. In the leading case of Norton v. Ellan 1837 2 M & W 461 there was a note payable with interest on demand, and the question arose as to the date from which the statute of limitation began to run, Baron Parke, in delivering the judgment said at page 464:

"I entertain no doubt at all on this point. It is the same as the case of money lent payable upon request, with interest, where no demand is necessary before bringing the action. There is no obligation in law to give any notice at all; if you choose to make it part of the contract that notice shall be given, you may do so. The doubt which constitutes the cause of action arises instantly on the loan. The money is lent simply, it is not denied that the statues begins to run from the time of lending. Then is there any difference where it is payable with interest It is quite clear that a promissory note, payable on demand, is a present debt, and is payable without any demand, and the statute begins to run from the date of it. Then the stipulation for compensation in the shape of interest makes no difference, except that thereby the debt is continually increasing de dia in diem."

We, therefore, find that the view taken by the learned Judges in the High Court has full support in case law, and no exception can be taken with it.

There is also no substance in the second plea raised by the learned counsel for the learned Judges of the. Division Bench of the High Court have very rightly held with reference to the provisions of Rule 37 of the Settlement Scheme No. 1 that a holder .of Provisional

Transfer Order is permitted to mortgage the property transferred to him under a Provisional Transfer Order.

For these reasons, there is no force in the submissions made in support of the petition, and it is, therefore, dismissed.

M. I Petition dismissed.

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