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Petitioner: MUHAMMAD MAHMOOD QURESHI And Another VS Respondent: Messrs UNITED BANK LTD.,
Court Name: Sindh High Court Judge(s): Kamal Mansur Alam Title: MUHAMMAD MAHMOOD QURESHI And Another vs Messrs UNITED BANK LTD., Case No.: Suit No.78A of 1979 Date of Judgment:1994-01-26 Reported As: PLD 1994 Karachi 323 Result: Suit decreed
JUDGMENT
JUDGMENT This suit has been filed by the plaintiffs for recovery of Rs.2,50,000 from the defendants and for declaration against defendants Nos. 2, 3, 4 and 5 that they are not fit for service of defendant No. 1. The facts of the case as alleged in the plaint are that plaintiff No.1 deposited on 15-1-1978 an amount of Rs. 30,000 in his saving A/c No. 661 in Shahrah-e-Liaquat Branch of the defendant No.1 (hereinafter referred to as the said Branch) and another sum of Rs. 1,20,000 in the saving account No. 456 of his wife, the plaintiff No. 2, under paying-in-slips No. 888025 and 888026 respectively. Having not received the statement of their said accounts the plaintiff No.1 went to the said Branch on 21-9-1978 and obtained the balances of the said accounts when he found that the aforesaid deposits were not credited to the respective accounts. The plaintiff informed the manager of the said branch and also wrote letters to the defendant No.2 and getting no response approached the banking control department of the State Bank of Pakistan through letter dated 30-10-1978 whereupon meeting between the plaintiffs and representatives of the defendant bank was arranged by an officer of the State Bank of Pakistan. It is alleged that in the meeting the officers of the defendant bank promised to reimburse the amount to the plaintiffs but later refused. It is also alleged that defendants Nos. 2, 3, 4 and 5 were directly involved in the case and they dishonestly refused to pay plaintiffs' money on baseless grounds. Having failed in their endeavour to persuade the defendants pay the money the plaintiffs filed the present suit claiming the aforesaid amount of Rs.1,50,000 said to have been deposited in their respective accounts as also a sum of Rs.1,00,000 by way of damages and declaration to the effect that defendants Nos. 2, 3, 4 and 5 are unfit for service of defendant No. 1.
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In the written statement filed on behalf of the defendants, apart from serval preliminary objections, bank's liability in respect of the said amounts in plaintiffs' accounts was disputed on several grounds including, that counter--foils of paying-in-slips on which the claim was based, bore the signature of one Qaseemuddin who was not manager of the said branch at the time the deposit was alleged to have been made and was obtained in collusion with him. It was also averred in the written statement that the said Qaseemuddin who was once a manager of the said branch had been transferred from there in October, 1977, much before the said deposits were allegedly made on 15-1-1978. The allegations against the other defendants were also denied. The following issues were adopted initially: "(1) Whether the defendant No.1 did not receive the cash amount of Rs.30,000 in plaintiff S.BA./C No. 661? (2) Whether the defendant did not receive the amount of Rs.1,20,000 (rupees one lac and twenty thousand) in the account of plaintiff No.2, S.BA/C No. 456? (3) Whether the defendants Nos. 2, 3, 4 and 5 all or any of them are guilty of misconduct and fraud as alleged? (4) Whether the defendants Nos. 2, 3, 4 and 5 all or any of them are fit for banking services? (5) Whether the defendants are guilty of neglect, want of proper supervision and improper discharge of their duties? (6) What reliefs are the plaintiffs entitled to"? Later the following additional issues were also added: "(1) Whether suit is bad for non-joinder of party? (2) Whether the suit is bad for misjoinder of party? (3)Whether the plaintiff's conduct amounts to waiver of the claim in the suit? (4) Whether the alleged two deposit slips showing Rs.30,000 and Rs.1,20,000 have not been executed in proper manner and binding on the defendant? . (5) `Whether the manager had no authority to sign the deposit slips and whether it is the official character of manager of a branch to receive cash and sign the same within the scope of his authority? (6) Whether the plaintiff has acted in collusive manner with Mr. Qaseemuddin Khan the ex- manager of the branch? (7) Whether the plaintiff's suit is an attempt to foist false claim on the bank and cause wrongful loss to the bank?" It may be mentioned that by order dated 20-8-1985 passed in Suit No.1167/78 this suit was consolidated with Suits Nos.1167/78 and 1170/78 and to some extent the evidence recorded was common in all the three suits. However, as the facts of the present suit are substantially different from those of the other two suits, this is being taken up separately. Written arguments were filed on behalf of the plaintiffs as well as the defendants and despite opportunities having been given to the parties no oral submission was made. It would be appropriate to take up first the three legal issues from the additional issues. With regard to issue No.1 of the additional issues, it has been contended by the defendants' counsel that the suit is bad for non joinder of the said Oaseemuddin Khan, ex-manager of the said branch who had signed the disputed counterfoils of paying-in-slips. According to the counsel the said Qaseemuddin Khan was neither manager of the said branch at that time nor authorised to receive money or issue receipts. The disputed receipts i.e. Counterfoils of the paying-in-slips, were issued by Qaseemuddin in collusion with the plaintiffs. It has been alleged that apparently the said Qaseemuddin Khan owed money to the plaintiff and instead of paying the same, he issued the counterfoils Exhs. 5 and 6 of the defendant bank. The submission is that the said Oaseemuddin Khan had signed the two counterfoils in his personal capacity, contrary to the interest of the
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defendant bank, and, therefore, any liability thereunder would be personal liability of Qaseemuddin Khan, who, as such, was a necessary party in the suit. As the plaintiff failed to join Qaseemuddin as a defendant the suit is liable to be dismissed for non-joinder of necessary party. In this regard reference has been made to the following cases: (1) Gul Muhammad and another v. Mir Zaman and another (PLD 1954 Lahore 406), (2) Mst. Salma Abbasi and another v. Ahmed Suleman and 2 others (1981 CLC 462), (3) Siraj Din and others v. Additional District Judge, Okara, and others (1986 CLC 975). In the first case, it has been observed that necessary party is that in whose absence an effective decree cannot be passed at all. In the second case, the relevant observation referred to is that in the absence of necessary party no effective decree can be passed. In the last case, where ejectment proceedings had been filed against the sub-tenant without impleading the tenant it was held that the tenant was a necessary party. None of the aforesaid case is applicable to the present case. I am unable to agree with the defendants' counsel that the said Oaseemuddin was a necessary party in this suit or that the issues cannot effectually and completely be disposed of in his absence. The plaintiff in each suit is clearly claiming the amount alleged to have been deposited with the bank and the case of the plaintiff is that notwithstanding the misappropriation by its officers and employees the defendant bank is still liable to make good all amounts paid to it by its customers. It is not the case of the plaintiffs that they paid the money to Qaseemuddin Khan in his personal capacity. Their simple case is that the money was handed over for deposit in their accounts and if any employee of the bank misappropriates the same it is a matter between the bank and the employee. The effect of not joining the said Qaseemuddin Khan as party in the suit would, of course, be that if plaintiffs fail to establish their case against the bank they would not be in a position to claim the money from Oaseemuddin Khan. Issue No.1 of the additional issue is, therefore, decided in the negative. As to issue No.2 of the additional issues the submission of the defendants' counsel is that by reason of impleading defendants Nos.2 to 5 as party in the suit the suit is liable to be dismissed for misjoinder. This contention too is devoid of any force. As is apparent from the plaint, reliefs have been sought against defendants Nos. 2 to 5 and, therefore, they had to be added as parties. In case plaintiffs fail to make out any case against these defendants the reliefs against them would not be granted, but that by itself would not defeat the suit against defendant No. 1 if plaintiffs' case against that defendant is established. This issue too is, therefore, decided in the negative. For the third issue of the additional issues, the argument is that the said two amounts were alleged to have been deposited in the bank on 15-1-1978 but the complaint was made by the plaintiffs on 23-9-1978. It is argued that this delay in lodging the complaint was deliberate, as, one Ghulam Muhammed who succeeded in Qaseemuddin Khan as manager of the said Branch, was fully aware of the irregularities of the said Qaseemuddin Khan. Later, however, when another manager had been appointed in the said Branch the plaintiff took up the case of the alleged deposit as the new manager had no direct knowledge of these irregularities. Such conduct of the plaintiffs, it is submitted, amounts to waiver. The contention is misconceived. The plaintiffs have explained that the plaintiffs did not receive statement of account for the relevant period and the discrepancy came to their knowledge only when the balance in the two accounts was obtained by plaintiff No.1 on 21-9-1978. Thereafter, the plaintiffs took up their claims not only with the defendants but also with the State Bank of Pakistan. It is not disputed that the suit itself is well within the period of limitation. This issue is accordingly decided in the negative. Issues Nos. 1 and 2 of the original issues and 4 and 5 of the additional issues are inter-linked and may, therefore, be taken up together. On these issues the contention on behalf of the plaintiff is that on 15-1-1978 the plaintiff No.1 deposited Rs.30,000 in his account No. SB-661 in the said Branch and another amount of Rs.1,2p,000
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in account No. SB-456 of his wife, the plaintiff No.2, in the same branch. Reference has been made to the deposition of plaintiff No.1, where he stated that, after completing the paying-in-slip "the cash amount along with the paying-in-slip were tendered to the cashier in presence of the bank manager Qaseemuddin who had in the meantime called me in his cabin. The cashier brought back the pay-in-slips after checking the amount and putting the bank stamp thereon and the bank manager then signed them and returned the counterfoils of the pay-in-slips to me." Photo copies of the counterfoils of the said two paying-in-slips are Exhs.5 and 6. It has been submitted that bank's contentions that the said Qaseemuddin Khan had been transferred from the said branch in November, 1977, or that he was not authorised to sign paying-in-slips, have not only been denied by the plaintiff No.1 in his deposition, but these allegations also stand refuted by other evidence, documentary and oral, produced on behalf of the plaintiffs as well as the defendants. Plaintiffs' witness Anwarul Hasan, who too is an account holder in the same branch produced as Exhs. 8/1 and 8/2 the paying-in-slip books containing counterfoils of paying-in-slips signed by the said Oaseemuddin Khan showing deposits made on ' 16-11-1977, 3-12-1977 and 4-12-1977. This witness also stated that he saw Qaseemuddin in the said branch up to February, 1978. Another account holder Wazir Muhammad produced as Exh. 7/1 counterfoil of paying-in-slip bearing signature of Qaseemuddin Khan showing deposit made on 28-11-1977 and Exh.7/2 being the statement of account showing the amount of Exh. 7/1 having been credited to his account. Reference has also been made to several other documents and deposition of witnesses examined by the parties. Accordingly it has been submitted that defendants' allegation that the said Qaseemuddin Khan had been transferred from the said branch in October or November, 1977 or that the paying-in-slips signed by him were of no legal effect have been thoroughly disproved and it has been established that the said amount of Rs. 30,000 and Rs. 1,20,000 had been deposited in the respective accounts of the plaintiffs on 15-1-1978 which amounts the defendant bank is liable to pay. The defendant bank has denied its liability on several grounds. It is contended that on 15-1-1978 when the said two amounts of Rs. 30,000 and Rs.1,20,000 are alleged to have been deposited in the accounts of plaintiffs Nos.1 and 2 on paying-in-slips, Exhs. 5 and 6, under the signature of Qaseemuddin Khan, the said Qaseemuddin Khan was no longer manager of the said branch having already been transferred from there on 8-11-1977 to another branch. In this regard reference has been made to the depositions of several witnesses. Attaur Rehman (D.W.2) who then was working as an officer in the said branch has deposed that, Qaseemuddin was manager of the branch up to first week of November, 1977 and was transferred on 7-11-1977 and thereafter one Ghulam Muhammad took over as manager of the said branch. Ghulam Muhammad (D.W.4) stated that he was transferred to the said branch on 1-9-1977 and on 8-11-1977 he took full charge of the said branch. He produced two copies of transfer order as Exh.D/42 and Exh.D/43. It is stated that as Oaseemuddin was not handing over charge a fresh order dated 8-11-1979 (Exh.D/44) was issued. Abdul Khalique (D.W.3) who was cashier in the said branch deposed that Qaseemuddin had been transferred and he went away in the first week of November, 1977 and thereafter Mr. Ghulam Muhammad only used to sit in manager's cabin. It has been submitted that the manager of a branch is not authorised to accept cash deposits. Under Chapter II of Part III at pages 31 and 32 of the Bank Manual (Exh.D/67) the receipt of cash is the exclusive function of the cashier who must sign the paying-in-slips along with one of the authorised officer of the bank, but in this case admittedly the alleged paying-in-slips were neither signed by the cashier'nor by the concerned authorised officer and these bear the signature of Qaseemuddin only. Reference has also been made to the officer's power of attorney, a copy of which is Exh.D/68, under which, it is submitted, that the acts of receiving cash deposits, signing of receipts, giving of valid discharges, etc. Have to be performed jointly with another attorney and not
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by a single attorney. For this reason too paying-in-slips signed by the manager alone would not bind the defendant back. The further contention is that the rubber stamp affixed on the two paying-in-slips, Exhs.5 and 6, were not that of the said branch. Abdul Khalique (D.W.3) who was working as the receiving cashier at the said branch stated in his cross-examination that, the rubber stamps dimly visible on Exhs.5 and 6 were not of that Branch. It has been contended that the reason why the said two counterfoils of paying-in-slips (Exhs.5 and 6) were not signed by the cashier or the authorised officer was that the same never went to them and forged stamp was put thereon. One of the main defence raised by the defendants is that the said Qaseemuddin Khan once a manager of the said branch was no longer manager thereof on 15-1-1978 when the disputed amounts were allegedly deposited, having already been transferred therefrom in October, 1977. This is the stand taken by the defendants in their joint written statement filed on 15-9-1979. At the evidence stage, however, the defendants took the stand that Qaseemuddin Khan was transferred from the said branch on 8-11-1977, but, the first office order about Oaseemuddin Khan's transfer from the said branch, produced as Exh.D/43, bears the date 1-9-1977. In his examination-in-chief the plaintiff No. 1 stated that: "I had myself filled in the pay-in-slips for the above amounts, and after completing them the cash amount along with the pay-in-slips were tendered to the cashier in presence of the bank manager Qaseemuddin who had in the meantime called me in his cabin. The cashier brought back the pay- in-slips after checking the amount and putting the bank stamp thereon and the bank manager then signed them and returned the counterfoils of the pay-in-slips to me." At one place, during cross-examination it was suggested to this witness that; "Q. It is put to you that Qaseemuddin had been transferred from Shahrah--e-Liaquat Branch of United Bank Limited in October, 1977 and thereafter he was never posted at Shahrah-e-Liaquat Branch of defendant bank?" and his reply was; "A. This is false. I had seen Qaseemuddin in the branch till March, 1978. I had seen him sitting as manager in the chair when I had been going to the branch till March, 1978." Admittedly, some amounts had been deposited by the plaintiff in his account and that of his wife on 14-1-1978, i.e. a day before the disputed amounts had been deposited. With reference to the deposit made on 14-1-1978 the following questions and answers were recorded in the cross- examination: Q .At what time did you deposit this amount on 14 .1978? A. Do not remember the exact time but it would be around noon? Q. Did you meet the manager Oaseemuddin on 14-1-1978 when you had gone to deposit these amounts? A. No. At that time I had deposited the amounts at the cash counter. I may, however, add that I had met the manager Qasimuddin earlier in themnrnina on 14-1-1978. This was in connection with the release of a mortgaged property of my wife. Mortgage of this property belonging to my wife was in favour of the bank and Qasimuddin as manager of the branch along with a legal officer of the bank had gone with me for the purposes of registration of the documents. In that connection I had met manager Qasimuddin in the morning but I had not seen him again when I had gone to deposit the above amounts around noon on 14-1-1978. Later, in the cross-examination the witness stated: "I had mentioned earlier in answer to a question about the mortgaged loan. The property belonged to my wife and the loan had been taken from this branch of United Bank Limited. The loan was taken in the name of my wife."
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-- From the above, it would be seen that the case of the bank initially was that Qaseemuddin Khan had teen transferred from the said branch in October, 1978 but plaintiff No. 1's statement that Oasimuddin had signed certain papers as manager of the bank on 14-1-1978 does not appear to have been effectively challenged or rebutted. The property papers alleged to have been signed by Qasimuddin on 14-1-1978 before the registrar have not signed these papers and the statement of the witness was false. The plaintiff examined one Anwarul Hasan a businessman who too had his office in the same building as that of the plaintiff and maintained his business account in the same branch of the defendant bank. He deposed that: "When I used to go personally for deposit of money Oaseemuddin used to call me in his cabin and there he used to sign the pay-in-slips." He produced as Exh.8/1, paying-in-slips book in which under paying-in-slip No.320767 certain amount had been deposited in the said Branch on 16-11-1977. The counterfoil of this paying-in-slip bears the signature of Qaseemuddin. Two other counterfoils of paying-in-slip dated 1-12-1977 were also produced by this witness showing deposits in his account in the said branch and these too bear the signature of Qaseemuddin. This witness stated that he saw Qaseemuddin in the said branch up to February 1978. The bank failed to controvert these documents. Plaintiffs' witness Wazir Muhammad produced his paying-in-slips book as Exh.7/1 and the statement of account as Exh.7/2. The counterfoil of the paying-in-slip produced by this witness also bears the signature of Qaseemuddin and shows that deposit in his account in the said branch was made on 28-11-1977 and the statement of account (Exh.7/2) shows that the amount deposited under Exh.7/1 was duly credited to the account of the witness. The above evidence, oral and documentary, disproves bank's conteption that Qaseemuddin had been transferred from the said branch in the first week of November, 1977, much less in October or September of that year. The shifting stand of the bank with regard to the date of transfer of Qaseemuddin from the said branch makes it necessary to undertake close scrutiny of the evidence on the point. Reference has already been made to office order dated 1-9-1977. (Exh.D/43) regarding transfer of some officers including Qaseemuddin. Another document concerning Oaseemuddin's transfer is Exh.D/44. This is a photo copy of an unsigned copy of letter dated 8-11-1977 addressed to Qaseemuddin which reads as follows: "We understand that since you have handed over charge of the branch to Mr. Ghulam Muhammad. You are, therefore, advised -to report to the undersigned immediately on receipt of this letter. This is in partial modification of our office order dated 1-9-77." In this document there is no mention as to when, if at all, charge was handed over by Oaseemuddin. The letter, even if written then, was written on the assumption that charge had been handed over, which assumption as would appear from other evidence, was not correct. In this regard a reference may be made to the evidence of some of the defence witnesses. Attaur Rehman, D.W.2, in his examination-in-chief deposed that: "Mr. Qaseemuddin was manager of the branch up to first week of November, 1977. After Qaseemuddin the next manager of the Shahrah-e-Liaquat Branch of United Bank Limited was Mr. Ghulam Muhammad." In his cross-examination the witness stated "Now I am Manager in Bhimpura Branch of UBL. Before I took over there was handing over and taking over charge. Whenever an officer is transferred there is handing over/taking over charge. This is the rule in the bank. Transfer orders of Mr. Qaseemuddin were issued when he was transferred and his function came to an end and Mr. Ghulam Muhammad told the branch that he has been transferred to the branch. Transfer order was issued on 1-11-1977 and handing over and taking over was completed on 7-11-1977."
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It would be interesting to note that no document witnessing the handing over/taking over of charge in respect of Mr. Qaseemuddin and his successor was produced. Similarly, the transfer order dated 1-11-1977 referred to by his witness was also not produced. This witness has further stated in his cross-examination that: "So long as Mr. Qaseemuddin was manager, a name plate containing his name used to remain on his table... This name plate remained till 7-11-1977. After handing over the charge of Shahrah-e--- Liaquat Branch he went to the Campbell Street Branch of the bank After taking over the charge of the branch, Mr. Ghulam Muhammad occupied the manager's table and his name plate was placed on the table." According to the witness Qaseemuddin after handing over charge went to the Campbell Street Branch. But this is not what the letter, Exh.D/44, says. If that letter is to be believed Qaseemuddin had to report to the Second Vice-President of the bank. The statement of the witness about the placing of Ghulam Muhammad's name plate on manager's table is also contrary to the deposition of the said Ghulam Muhammad. This witness has admitted the deposit of Rs.35,000 in the account of Wazir Sons on 28-11-1977 under paying---in-slip Exh.7/1, bearing the signature of the said Qaseemuddin. Abdul Khalique the then chief cashier of the said branch was examined as D.W.3. He has deposed: "I do not know when Mr. Qaseemuddin handed over the charge. I do not know when he received transfer orders but I know that he was transferred. No body told me that Oaseemuddin had been transferred but when I initialled my presence in the attendance register I noticed that Qaseemuddin had not initialled his presence and from this I concluded that Qaseemuddin had been transferred. I could not have made this inference just from one day but I drew the inference after about 5 or 6 days." Here again the attendance register on which the said Qaseemuddin used to sign along with other staff members and which was undoubtedly in the possession of the bank and one of the basic document to establish the date of Qaseemuddin's transfer, was not produced to show the exact date up to which he remained as manager of the said Branch. This witness admits the genuineness of the counterfoil of the paying-in-slip No. 950926 dated 28-11-1977 (Exh.7/1) signed only by Qaseemuddin. He also admits that under this an amount of Rs.35,000 was deposited with the bank. The next witness Syed Ateeq Ahmed…
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