1967 (11) TMI 115 - HC - Indian Laws

Summary

Issues Involved:
1. Joint opening of the current and overdraft account.
2. Contract of interest at the rate of one percent per month.
3. Admission of debt by Defendant No. 3.
4. Alleged forgery regarding the confirmation of the balance.
5. Suit barred by limitation.
6. Suit maintainability against Defendant No. 1 as a Military servant.
7. Relief entitlement for the plaintiff.

Detailed Analysis:

1. Joint Opening of the Current and Overdraft Account:
The primary issue was whether the 1st defendant and his brother jointly opened a current and overdraft account with the plaintiff-Bank. The plaintiff produced account books and the Bank Manager as evidence. The court found the evidence of P.W.1 unimpeachable and concluded that the account was jointly opened by the two brothers. The joint execution of Exhibits P-2, P-4, and P-5 by both brothers further supported this conclusion, leading the court to hold both brothers jointly and severally liable for the account.

2. Contract of Interest at One Percent Per Month:
The court found that the parties agreed to pay interest at the rate of one percent per month. This finding was based on the evidence presented and was not contested further by the defendants.

3. Admission of Debt by Defendant No. 3:
The court found that Defendant No. 3 did not personally admit the debt in writing dated January 4, 1949 (Exhibit No. 1). Therefore, Issue 3 was decided against the plaintiff.

4. Alleged Forgery Regarding the Confirmation of the Balance:
The court examined Exhibit P-2 and concluded that it was not forged. The 1st defendant failed to prove that the words confirming the balance were added after his signature. Thus, Issue 4 was found against the defendants.

5. Suit Barred by Limitation:
The court held that the suit was not barred by limitation due to Exhibit P-2, an acknowledgment executed by the 1st defendant and his brother on 9-9-1947. The suit was filed on 9-9-1950, within the limitation period. Additionally, the court applied Article 85 of the Indian Limitation Act, considering the account as mutual, open, and current, which extended the limitation period.

6. Suit Maintainability Against Defendant No. 1 as a Military Servant:
This issue was not elaborated upon in the judgment, indicating that it was either not contested or not considered significant by the court.

7. Relief Entitlement for the Plaintiff:
The court decreed the plaintiff's suit for Rs. 54,956-15-8 O.S., including costs and interest at 6 percent per annum from 9-9-1947 until final payment. The suit was decreed against the property of Iftikhar Ali Khan in the hands of defendants 2 to 4. The plaintiff did not appeal the dismissal of a part of his claim, and the 1st defendant's appeal was dismissed.

Conclusion:
The court upheld the lower court's decision, finding the 1st defendant and his brother jointly liable for the overdraft account. The suit was within the limitation period, and the promissory notes executed as collateral securities were valid and supported by consideration. The appeal was dismissed with costs.