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Petitioner: QAMRUL HASAN and anothers VS Respondent: UNITED BANK LTD. and another
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed Title: QAMRUL HASAN and anothers vs UNITED BANK LTD. and another Case No.: Suit No,35 of 1974 Date of Judgment:1989-11-29 Reported As: 1990 MLD 276 Result: Suit decreed
JUDGMENT
JUDGMENT ' Plaintiffs have brought this action, based on an alleged remittance of 11-12-1971, in the sum of Rs,1,50,000, through telegraphic transfer, made by the plaintiff No,2 from the then Tej Gaon Branch, Dacca of the defendant No,1 bank in favour of the plaintiff No,1, payable at the PECHS Karachi Branch of the defendant No,1 itself cited as defendant No,2 in the suit. Plaintiff No,2, it may be mentioned here, is described in the plaint as Motiul Haq alias Mazharul Haque and has signed the plaint, separately, in both those names. Reverting to the recitals, it is alleged in the plaint that the message relevant to the remittance was conveyed to the two defendants at Karachi on or about 11-12-1971 itself. Admittedly, the fall of Dacca occurred on 16-12-1971. Subsequent demands made by the plaintiffs on the defendants at Karachi failed. Hence the suit. 2. In reply the defendants, United Bank and their relevant Karachi branch, plead that Motiul Haq and Mazharul Haque are two different persons and that the plaintiff No,2 has no locus standi to file the suit. On merits they say that, as from 3-12-1971, they ceased to have any communications whatever with their branches in the then East Pakistan and, following upon the fall of Dacca on 16- 12-1971, the assets and liabilities of the defendant No,1 were taken over under the laws promulgated by the new State of Bungladesh. The defendants also deny that any such remittance, as alleged, was sent at all and even if such was the case the plaintiffs expressly and/or impliedly agreed that the alleged telegraphic transfer, if any, was to be made, as and when it was possible for the Tej Gaon Branch of the defendants to do so an that the plaintiffs, in making the remittance, if any, undertook the risks involved and inherent in the situation then prevailing. The defendants further plead that amount covered by a telegraphic transfer becomes payable only when the same is received by the drawee Branch by means of a tested telegram or T.P. Message, duly authenticated
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and, on facts of the case, no such tested telegram or T.P message, duly authenticated, was received at Karachi. On the foregoing pleas all liability in the suit is denied. 3. On the pleadings of the parties the following issues, submitted by consent on 17-2-1975, were adopted by the Court. (1) Did the plaintiff No, 2 on 11-12-1971 deposit Rs, 1, 50,000 with the said Tej Gaon Branch, Dacca, for telegraphic transfer to the plaintiff No, 1 at Karachi? (2) Did the defendants receive a telegram from the said branch for the telegraphic transfer of the said amount? If not, to what effect. (3) Whether the remittance by telegraphic transfer becomes payable only when the amount is received by the drawee branch from the remitting branch? If so, whether the defendants received the amount at Karachi? (4) Did the defendant No,1 lose control over its branches in East Pakistan as from 16-12-1971? If so, to what effect. (5) Is it correct that under the laws of 'Bangladesh' all the assets and liabilities of the defendant No,l's branches situated in East Pakistan have ' been taken over by 'Bangladesh Government/Janata Bank'? If so, to what effect. (6) Are the defendants liable to pay to the plaintiff at Karachi? If so, to what extent. (7) Whether the liability of the branches run in East Pakistan by Defendant No, 1 until 16-12-1971 was that of the Defendant No, 1 ? If so, to what effect? (8) What should the decree be ?" 4. The plaintiffs, on the Issues under consideration, have, in the order indicated here, examined three witnesses namely, Mutiul Hag, plaintiff No,2, Shafi Ahmed, an officer of/in the Tej Gaon Branch, of the defendant No,1 at Dacca, and Qamarul Hassan, plaintiff No, 1, also stated to be a cousin of plaintiff No,2. On the other side, the defendants have examined one Charles Clement as their only witness. 5. Issues Nos. 4-5:-- These Issues, which pertain to loss of control of the branches of the defendant No,1 in the then East Pakistan w.e.f, 16-12-1971 and the taking over of relevant assets and liabilities by the Government of Bangladesh, under the laws of that newly emerged State, have not seriously been resisted' and, accordingly, are answered in the affirmative. But the effect is dealt with below. 6. Issues Nos. 1 to 3 & 6 to 8:--These Issues, relating to the rights and liabilities between the parties, both on the factual and the legal planes, are taken up together. 7. Matiul Haque (plaintiff No,2, described as "Motiul Haque alias Mazharul Haque" in the plaint) was examined by Mr. Murtaza Hussain on 18-2-1985, as Commissioner appointed by the Court. He stated that he had an account with the Tej Gaon Dacca. Branch of the defendant No:1 bank, from where he withdrew the money and deposited the same for the purpose of the remittance in question on 11-12-1971, after he had first enquired and confirmed that such transfer was possible. Exhibit. P2 is the relevant memorandum, dated 11-12-1971, in that behalf. He informed the plaintiff No, 1, to whom he owed such money, through telephone on the night of 11-12-1971 that the money was remitted. Subsequently, he came to know that the defendants failed/neglected to pay the plaintiff No,1 at Karachi. He therefore, wrote fetter dated 12-10-1972 to Janata Bank, Bangladesh successor of the remitting branch, for investigation (copy, under objection, brought on record and marked as 'A') and again, on being informed that such payment had been remitted per letter dated 2-12-1972, asked for a certificate from the Janata Bank together with a copy the telegram (Copy of letter brought on record, under objection, as A-2). He received reply dated 9-1-1973 (original brought, under objection, on record as Exhibit P/3) intimating that telegram regarding the remittance was sent on 11-12-1971. The witness, in his examination-in-chief, stated he had no name other than Motiul Haque alias Moti. On being shown the title of the plaint, he said that he did not know as to how his name, as alias Mazhar-ul-Haque, was cited as plaintiff No,2. In fact, as noted above, he had
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also signed the plaint in both the aforementioned names. On comparison of such signatures in the assumed name with those in documents marked 'A' and `A2" similarity therein cannot be ruled out. In cross-examination the witness stated that he was since a Bangladesh national and his name, Moti-ulHaque, was reflected in his passport. He, however, denied that Motiul Haque and Mazharul Haque were two different persons. 8. Plaintiffs' witness Shafi Ahmed has deposed that on 11-12-1971 he was the second officer of the defendant No,1 bank in its Taj Gaon Branch at Dacca. He acknowledged that the memorandum Exhibit P/2 was sign6c1 by him. He stated that the person in whose favour the remittance was received is shown as Qamrul Hassan and his address is also indicated. Money was received at the branch where he was employed. According to him the practice of the bank is that when money is deposited with the bank, for onward transfer, it is transferred the same day and such transfer is made telegraphically. On 11-12-1971 the communication lines between Dacca and Karachi, according to him, were operative. In cross-examination he stated that while Exhibit P/2 bore his signature it was not in his writing. The witness was unable to say as to who had tendered the money in the bank nor was he able to say as to in whose writing Exhibit P/2 was. On being questioned whether in the rush of work he may have signed Exhibit P/2 before entries therein were filled in ink, the witness answered in the negative. He admitted that the Indian Army had attacked Dacca on 24-11-1971 and that on 3-12-1971 India had also attacked the then West Pakistan. He also accepted that in those days the bank sometimes used to be open and sometimes used to remain closed. He admitted that the addressee branch of the bank would not disburse the amount covered by a telegraphic transfer unless such transfer is received from the branch where the money is deposited. The learned Judge, who recorded the evidence and who has since retired, has made a note at the end of this deposition that the intelligence and capacity of the witness seemed to be very poor and he answered the questions hesitatingly. 9. Qamrul Hassan, plaintiff No,1, stated that plaintiff No, 2 is his first cousin. On 11-12-1971, plaintiff No, 2 telephonically informed him at Karachi that a sum of Rs, 1,50,000 was transferred to him through the United Bank Ltd. But on contacting the PECHS Society Branch of that bank, defendant No,2 herein, he was informed that such amount had not been received and that no sooner it was received they would pay it since, according to them, the money was first received at the Head Office and then disbursed to the branch. He acknowledged Exhibit P/2 to be in his name. He is shown to have corresponded and raised demands with the defendants, even forwarding a photo stat copy of Ex.P/2. In response he continued to draw blanks and, finally, per Exh. 6/2, a letter dated 5-2-1973, of the defendant No,1, was told that their PECHS Branch did not receive any intimation regarding the telegraphic transfer and that such transfers became payable only when the amount was received by the drawee Branch from the remitting branch by means of a tested telegram or T.P. Message, duly authenticated. Liability, therefore, was altogether denied, This was followed by legal notice dated 26-11-1973 (Exhibit 6/3) from the side of the plaintiff No,1. Subsequently, letter dated 11-2-1974 (Exhibit 6/4) was addressed by the defendant No,1 to the plaintiff No,1 through which that plaintiff was requested to call on the defendant No,1 with the original documents regarding proof of having sent the remittance in question. In response to this plaintiff No,1 says that the defendant No,1 offered him a sum of Rs, 10,000 for settlement of the dispute. In cross- examination he says that Matiul Haq is also known as Mazharul Haq. He explained that Exhibit P/2 did not indicate the name of the depositor as the form does not provide for such particulars, He admitted that the plaint did not show that a sum of Rs, 10,000 was offered to him by way of settlement. 10. Charles Clement (Exhibit 7), defendants' witness stated that he was working in the PECHS Branch of U.B.L. So far as he re-collected from 24-11-1971 there remained no contact between the branches functioning in the then East Pakistan and the Head Office or the other branches in the then West
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Pakistan, as war on the Eastern Front erupted on 24-11-1971. According to him, war with India, on the Western side, started on 4-12-1971 and Dacca, according to his re-collection, fell on 16th or 17th December, 1971. On or around 11-12-1971, as per his deposition, it was not possible to deposit any amount in one of the U.B.L. Branches in East Pakistan for remittance to West Pakistan. Such deposit according to their thinking, in fact, was not made. Further, no intimation of deposit was received here. Procedure for such remittances, when operative, was that coded Telegrams/T.P. Messages were first received and confirmed through letter, signed by two Attorneys, and no payment would be made unless confirmed by such letter. In the instant case there were neither any messages nor any confirmation. In cross-examination the witness admitted that in 1971 he was posted in another branch as an Assistant. He denied that the communication link between East and West Pakistan was operative up to 15-12-1971. Telegraphic messages, according to the witness, did not travel via the Head Office but came directly to the branch concerned. While he admitted that he was only posted in the PECHS branch in 1983 he denied that he was not aware of the facts. He admitted that U.B.L. Did pay some fractional amount on account of humanitarian considerations but said that he was not aware whether in the instant case any such offer was made. 11. Now, it would appear, that while on facts the defendants maintain that they think that the remittance was not made at all by way of deposit of money, genuineness of memo, Exhibit P/2, has not been questioned nor has it been disputed that witness Shafi Ahmad was an officer of the defendant No,1 bank at its Tej Gaon Dacca Branch at the relevant time nor is it asserted that he did not sign Exhibit P/2. It, therefore, stands proved that the sum of Rs, 1,50,000 was deposited, for being telegraphically transferred, at the time and place indicated in P/2 for remittance to the defendant No,2 branch. It becomes immaterial, as is dilated upon below, as to who was the remitter, since the beneficiary is clearly identifiable. 12. The next question is whether the telegraphic message was sent from and was received at, Dacca and Karachi, respectively. Documentary evidence in this behalf consists of Exhibit P/3, a letter from Janata Bank dated 9-1-1973, wherein the despatch of telegraphic message on 11-12-1971 is recorded. It is true that such document was exhibited subject to objection but no argument has been raised about its admissibility on hearing. The only possible objection could have been the fact that its author was not examined but that objection, if any, loses force when it is not pressed in arguments foreclosing the possibility for the other side to take remedial steps. Besides, where the addressee himself produces such a document he, of necessity, identifies the writer, being a party to the correspondence and the objection loses some of its relevancy unless, it is shown that the document is an outright fabrication which is not the case here. 13. An illustration of such bilateral matters is furnished in the case reported as Abdul Samad v. Govendra Krishna Roy AIR 1925 Cal. 452 where, relying on some earlier decisions, it was held that a rent receipt may be proved through the evidence of the tenant by whom or on whose behalf the rent was paid and receipt obtained notwithstanding that the person whose signature it bears has not been examined. 14. Article 2(4) of the Qanun-e-Shahadat, 1984, envisages "a fact to be proved" when, after considering the matter before it, the Court either beleives it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This provision, in the context of proof of documents, is, inter alia, to be read with Article 78 of the Quanun-e-Shahadat, which requires signatures or handwritings to be proved, without laying down any specific manner of proof. For such purpose several modes of proof have come to be judicially recognised the best mode being the examination of the person who signed or wrote the document. Such modes of proof also include presumptive or circumstantial evidence. Thus, in the case reported as Abdool All v. Abdoor Rchman 21 Suther- Lands Weekly Reporter 429 a Division Bench of the Culcutta High Court consisting of Couch C.J. And
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Birch, J., observed that there was no provision in the Evidence Act, which required the writer of a document to be examined as a witness.. Likewise, in the case of Karali Prosad Dutta v. E.I. Railway Company AIR 1928 Cal. 498 Mukerji, J., speaking for a Division Bench consisting of Cuming, J., and himself, said that sections 60 and 67 of the Evidence Act (corresponding to Articles 71 and 78 of the Qanun-e-Shahadat) were somewhat ambiguous but it was never intended by section 67 that direct evidence of handwriting was always necessary and that the section merely stated with reference to deeds what was the universal rule in all cases that the person who makes an allegation must prove it and lays down no new rule as to the kind of proof to be given. It was observed that section 60 was never intended to exclude circumstantial evidence of a thing which could be seen, heard and felt though at first sight the section might appear to have that meaning. The case of Govardhandas v. Ahmedi Begum AIR 1953 Hyderabad 181 also is to the effect that handwriting may, in addition to the usual methods, be proved on circumstantial evidence as section 67 of the Evidence Act prescribes no particular kind of proof. Zakiuddin Pal, J., in the case of Gammon Pakistan Ltd. v. Pir Khan PLD 1979 Note 113 p. 84 also affirms this rule declaring that under section 68 (Article 79 of the Qanun-e-Shahadat) of the Evidence Act where a document was not duly proved by the person signing the same, but circumstances proved its execution, reliance may be placed on such a document. In the circumstances of this case, where the letter from Janata Bank, dated 9-1-1973, Exhibit P/3, has been transcribed on the official letter pad of that Bank and addressed to the plaintiff No,2, who has produced the same and objection in that behalf has not been pressed in arguments such document, alongwith oral testimony in support, constitutes strong evidence and must he held to be proved in terms of Articles 2 and 78 of the Qanun-e- Shahadat, 1984, since, taking all the circumstances into consideration, it seems, uncontrovertibly, to have been written and addressed in manner it purports to have been written and addressed. 15. The factum of remittance, at any event, having, even otherwise, been established the burden stood shifted on the defendants to show that the telegraphic message did not in fact come to be received or that it was not a proper message and, for this purpose, it was incumbent on them to produce documentary evidence which could have consisted of registers/files wherein receipts of such messages are recorded, for it can hardly be maintained that such delicate matters are not reflected in any record whatever. Since, the best evidence of such record has not been produced a presumption arises which under Article 129, illustration (g) of the Qanun-e-Shahadat is that if such evidence had been produced it would have gone against the defendants. It cannot be allowed to remain unnoted that the case of the defendants, as regards the receipt of telegraphic messages, has been a shifting one. Sometime they allow it to be said (assertion of plaintiff No,1 not disputed) that such messages were received by the branch concerned through the Head Office, and sometime it is said that the same are received by the drawee branch direct, the last being the position finally adopted. In any case, no officer of such branch, holding charge at the relevant time, has been examined, again giving rise to the presumption under Article 129 ibid, that if such relevant evidence had been adduced it would have gone against the defendants. While on this point it may bear mention that the defendants have pleaded that the payments in respect of telegraphic transfers were to be made on the basis of tested Telegrams or T.P. Messages, duly authenticated, but their solitary witness has tried to improve the case by saying that the same were subject to confirmation through letter. Such evidence, being in negation of pleadings cannot be entertained. Barring exceptional cases, in which principles are well-established, proof must conform to pleadings. In addition, it has neither been pleaded nor proved that any physical transfer of money is contemplated in such cases and all that seems to be necessary is despatch and receipt of tested telegram(s) or T.P. Messages, duly authenticated. The upshot of the discussion is that money, as claimed was deposited; for the specific purpose of remittance through telegraphic transfer on 11-12-1971, telegraphic message was sent, as alleged, on the same date and such
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message must be presumed to have been received by the defendant No,2 Branch at the relevant time, which the defendants have attempted to conceal. Presumption of receipt of telegram arises, apart from what has been said above, on the basis of the position at law under Article 129 of the Qanun-e-Shahadat, namely, that all official acts are deemed to have been regularly performed unless the contrary is clearly established, when alone the presumption would stand rebutted. It may be pointed out here that contrary considerations to the maxims illustrated in Article 129 of the Qanun-e-Shahadat do postulate situations where judicial acts under the presumptions are/is performed under "exceptional circumstances" but no such exception is made in the context of official act(s). Another presumption, which is attracted to this case, is one under Article 98 of the Qanun-e-Shahadat 1984, where Court may presume that a telegraphic message forwarded corresponds to the one delivered for dispatch. In the instant case, where there is only word against word such presumptions, as aforesaid, remain undisturbed. I am not unmindful of the fact that the country was then in a state of war but to what extent the normal channels of communication stood impaired and from which point of time are matters which have not satisfactorily been established giving rise to acceptance of plaintiffs' unrequited version that on 11-12-1971 due follow up actions could be and were taken. 16. Something may now be said as regards certain discrepancies in the case of the plaintiffs. For one thing, there is the question about the assumed name of the plaintiff No,2. It appears to me that the confusion with regard to the names Motiul Haq and Mazharul Haq could have arisen because of phonetic difficulties involved where a person speaking the Bangali language has to take down/record something and it is not unlikely that in such taking down Motiul Haq may have become Mazharul Haq and that difficulty was countered by assuming an alias name by the plaintiff No,2. It is, perhaps, on account of such contrivance that the plaintiff No,2 did not even remember as to what assumption he had projected. Such phonetic mix up could have come about in the same way as the transcribed version of the name of plaintiff No,2 in the' plaint is Matiul Haq while that in the deposition is Motiul Hague. This view is strengthened since the signatures of the so-called Mazharul Haq on the plaint appears to be similar to those occurring in documents marked A-1 and A-2, which are copies of letters addressed by him to the Janta Bank. Be that as it may, the fact remains that deposit for remittance stands proved, dispatch of telegram on 11-12-1971 is established and the beneficiary viz the plaintiff No,1 is clearly identified in Exh.P/2, the memo. Issued by the remitting branch and these are the only facts which matter. Another discrepancy, which I have noted, is in the date of telephonic communication from the plaintiff No,2 to the plaintiff No,l. This, according to plaintiff No,2, transpired on 11-12-1977 whereas the plaintiff No,2 maintains it to be on 14-12-1971. Even if such telephonic call came about on 14-12-1971, the same would make no difference as that event is not material and does not affect the rights and liabilities of the parties inter se. 17. It is true that the evidence in this case is not as effective and as detailed as it could have been, had the relevant times been normal, but in the context of that period of turmoil, such evidence, as has been brought on record, seems to be adequate and satisfactory and the rule of evidence, which is what is material in civil cases, as re-iterated in Taj Bibi v. Syed Ahmad Shah 1989 SCM R 1001, appears to have been satisfied, inter alia, as the burden which stood shifted to the defendants has not been discharged. 18. Mr. Mamnoon-ul-Hasan, learned counsel for the defendants, has attempted to ward off liability by contending that a person dealing with a particular branch of a bank, having several branches, is to have his remedies, if any, from such branch alone and that the bank, as an entity or an integral whole, through its head office, cannot be made liable. Reliance is placed by the learned counsel on the cases reported as (1) Clare and Co. v. Dresdner Bank 1914-15 AER 617 (2) N. Joachimson v. Swiss Bank Corporation 1921 AER Rep. 92 (3) Arab Bank Ltd. v. Barclays Bank 1954 2
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AER 226 (4) Delhi Cloth and General Mills Co. v. Harnam Singh and others AIR 1955 SC 590 (5) Agencia Commercial International Ltd. v. Custodian of Banco Nacional Ultramarine AIR 1970 Goa, Daman and Div 11; (6) Indo Allied/Industries Ltd. v. Punjab National Bank AIR 1970-Allahabad 108 and an order of the Wafaqi Mohtasib. 19. On the other hand, Mr. Munawar Ghani has relied on the cases reported as (1) Henry Prince v. Oriental Bank Corporation 1878 3 AC 325; (2) Capital and Counties Bank Ltd. v. Gordon 1903 AC 240; (3) Delhi Cloth and General Mills Co. v. Harnam Singh AIR 1955 SC 590 and (4) The Central Bank of India v. Multanmull Misrimull Firm 1960 I MU 187.…
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