Find a Lawyer

Suit No. 146 of 1974, decided on 11st August, 1987.

---O.XXXVII, Rr. 1 & 2--Bankers' Book Evidence Act (XVIII of 1891), S.4--Recovery of amount--Evidence produced by plaintiff bank going unchallenged and unrebutted and sufficient and strong documentary evidence was led by it which proved that defendant had obtained overdraft facility and utilised same--Statement of accounts produced by plaintiff admissible in evidence on their own account under S.4 Banker's Book Evidence Act 1891 and their genuineness neither disputed nor appearing to be doubtful--Suit decreed with interest.

A . H . Mirza for Plaintiff.

Nemo for Defendant.

Date of hearing: 11th August, 1987.

This is a suit for recovery of Rs.3,85,003 under Order XXXVII Rules 1 and 2, C.P.C.

2. The plaintiff European Asian Bank is the successor of Deutsch Asiatische Bank. At the request of the defendant the' Deutsch Asiatische Bank granted 0/D facility in the 5 accounts of the defendant (5405,' 23/5405, 23/5405, 5322 and 5322/1) which were utilised by the defendant from time to time. After the merger of Dautsch Asiatische Bank with the plaintiff they became entitled to the said amount. The defendant executed and delivered to the plaintiff two pro-notes dated 31-5-1973 for Rs.1,86,177.86 and Rs.2,00,000. On 28-2-1974 a total amount of Rs.3,85,003 was outstanding against the defendant in the above accounts. The defendant has neglected and failed to pay the aforesaid outstanding amount in spite of repeated notices, hence the prayer for a decree of Rs.3,85,003 with costs and interest at 12 per annum from 1-3-1974 upto the date of institution of the suit and further interest till the realization of the decretal amount.

3. The defendant has contested the suit and filed written statement. He has admitted that he had two accounts with Deutsch Asiatische Bank bearing No.5405 in which he was given 0/D facility of Rs.2,00,000 and Account No.5322 in which there was a debit of Rs.1,80,000. He has alleged that the plaintiff had failed to give him credit of interest in the said account and other adjustment as per agreement dated 7-9-1967. Certain other pleas were also taken which are evidence from the issues. The issues are as under:-

(1) What accounts did the defendant have with Deutsch Asiatische Bank and what amounts if any are due thereunder

(2) Was the debit balance in defendant Account No.5322 with the Deutsch Asiatische Bank cleared by the defendant in persuance of the agreement dated 7-9-1967 as alleged in paragraph 3 of the written statement

(3) Is the defendant entitled to credit of interest and other adjustments as per agreement dated 7-9-1967 in his Account No.5405 with Deutsch Asiatische Bank as alleged in paragraph 3 of the written statement

(4) What overdraft facilities were granted by Deutsch Asiatische Bank to the defendant and to what extent the defendant utilized the same

(5) Was any claim for money advanced by Deutsch Asiatische Bank outstanding against the defendant and is the plaintiff duly entitled in law to the said amount

(6) Did Deutsch Asiatische Bank merge with the plaintiff and whether the plaintiff is entitled to sue and recover the outstanding- debit from the Defendant

(7) Whether the Promissory Notes in question are without consideration and are not admissible

(8) Did the defendant acknowledge liability as mentioned in para 7 of the plaint

(9) Is the suit barred by limitation

(10) To what amount if any is the plaintiff entitled and what should the decree be

4. The case was fixed for final hearing on 8-9-1986. Mr. Mazhar Lari Advocate for the defendant stated that he had no instructions on his behalf. The plaintiff, therefore, examined Mr.Shaheed Karim Saddique Manager of Cooperative Banking and Credit Department of the Plaintiff Bank and has produced the statement of account of Account Nos. 5405 as Exh. 5/17, 23/5405 as Exh.5/18, 5322 as Exh.5/19 and 5322/1 as Exh.5/20.

5. The above evidence of the plaintiff has gone unchallenged and unrebutted. No doubt the two pro-notes sought to be produced by the plaintiff were inadmissible in evidence in that all the stamps affixed thereon were not cancelled but the plaintiff has a right to fall back upon to the original contract. He has led sufficient, rather strong documentary evidence through the above witness which has proved that the defendant had obtained 0/D facility and utilized the same as alleged by the plaintiff. The statement of accounts produced by the plaintiff are admissible in evidence on their own account under the Banker's.Book Evidence Act and their genuineness is neither disputed nor appears to be in any way doubtful. I therefore, decree the plaintiff's suit with interest and costs as prayed.

M. Y. H . /E-8/ K Suit decreed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.