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 impledly 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 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.1`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 Haq, plaintiff No.2, Shari 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 taker, up together.
7. Matiul Haque (plaintiff No.2, described as "Motiul Haque alia, Mazharul Haque" in the plaint) was examined by Mr. Murtaza Hussain or, 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 letter 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, t1ndcr 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 hi; 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 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‑ul -Haque was reflected in his passport. He, however, denied that Motiul Raque and Mazharul Haque were two different persons.
8. Plaintiffs' witness Shah Ahmed has deposed that on 11‑12‑1971 he was the second officer of the defendant No.1 bank in its Tej Gaon Branch at Dacca. He acknowledged that the memorandum Exhibit P/2 was signed 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 some times 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 al 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 mono) 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 photostat 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 a by legal notice dated 26‑I1‑1973 (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. 10,0(X) 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 deposited 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 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 fink between East and West Pakistan was operative up to 15‑12‑1971. Telegraph 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 Shari Ahmad was an officer of the defendant No.l 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 believes 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 Ali v. Abdoor Rehman 21 Suther‑Lands Weekly Reporter 429 a Division Bench of the Culcutta High Court consisting of Couch CJ. and 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 Curving, J., and himself, said that sections 00 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, uncontrovertedly, 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 arc 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 un-noted 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 al 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. 1n 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 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 despatch. 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' un-rebutted 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 Haque. 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, despatch of telegram on 11‑12‑1971 is established and the beneficiary viz the plaintiff No.1 is clearly identified in Fxh.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.1. 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 preponderance of evidence, which is what is material in civil cases, as re‑iterated in Taj Bibi v. Syed Ahmad Shah 1989 SCMR 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, its 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. Swia Bank Corporation 1921 AER Rep. 92 (3) Arab Bank Ltd. v. Barclays Bank 1954 2 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 Bahco Nacional Ultracnarino AIR 1970 Goa, Daman and Div 11; ((i) 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 ands Counties Bank Ltd. v. Gordon 1903 AC 240; (3) Delhi Cloth and General Mills. Co. v. Harnam Singh AIR 1955 SC 5911 and (3) The Central Bank of India v. Multannrull Misrimull Firm 1960 1 MLJ 187. Besides, both the learned counsel have placed reliance on a judgment of my learned brother, Nasir Aslam Zahid, J., in Suit No.871 of 1978; Syed Mehmood Hassan v. United Bank Ltd., decided on 30‑10‑1985.
20. The principles emerging from the cited and other relevant decisions are that the liability between a banker and its account‑holder, subject to a contract to the contrary, is restricted to the branch where the account of the customer is maintained and where alone the banker is under obligation to pay cheques drawn on the account. The ordinary rule that it is for the debtor to find the creditor, normally, has no application to the relationship between a banker and its customer, for while the relationship between them is of debtor and creditor, it is, generally, conditioned by the localisation of the debt and its becoming payable on raising of demand. Thus, if the concerned branch of a bank, having more branches than one, in the same or different countries, is made subject to any loss because of war or Force Majeure, resulting in loss or detriment to the account holder, the remedy stands or falls on the basis of loss to the relevant branch and the bank, as an entity, unless there be a contract to the contrary, cannot elsewhere be sued. In such situations complex questions of Private International Law are involved and two different modes of application are conceived, one followed by the English Courts namely, the "LEX SITUS" and the other advocated by Cheshire and others viz. the proper law of the contract. The approach on the basis of LEX SITUS is to treat the debt as property and determine its SITUS and then to apply the law that prevails there on the date when payment falls due. In actual application of the doctrine, SITUS shifts from place to place for different purposes and one of its determining factors is intention of the parties. Where no such intention is expressed it must be implied or imputed, on considerating where the contract was made or how and where it was to be performed and in such context the nature of the transaction is also relevant factor. As to the proper law of contract the governing principles are that such law is the law of the country in which the contract is localised and such localisation "will be indicated by what may be called the grouping of its elements. as reflected in its formation and in its terms. The country in which its elements are most densely ground will represent its natural seat‑‑the country with which the contract is in fact most substantially associated and in which lies its natural seat or centre of gravity".'
21. In actual application none of the referred two modes are free from difficulty. The determination of SITUS is a notional exercise based on assumptions as to location of the debt and intention of the parties neither of which may have any factual foundation. Similarly, the other concept involving the grouping of the elements of contract may overlook the place of its performance and discharge of the obligations under the contract.
22. It is with a view to overcome these difficulties in applying the law that some Finer distinctions have been worked out and relevant for the purposes of this case would be the following as pointed out by Lord Wight, in Mount Albert v. Australian T.O.M.L.A, Society 1938 AC 224 (240‑1):‑‑
"It is true that, when stating this general rule there are qualifications to be borne in mind, as for instance, that the law of the place of performance will "prima facie" govern the incidents or mode of performance, that is, performance as constrasted with obligation:"
"Again different considerations may arise in particular cases, as, for instance, where the stipulated performance is illegal by the law of the place of performance."
23. Cheshire, taking recourse to welfare International Law, sums up the proposition thus:
"A proper law intended as a whole to govern a contract is administered as `a living and changing body of law' and effect is given to any changes occurring in it before performance falls due."
24. Thus, in cases in which money is deposited, either by the account‑holder or another customer, for a specific purpose, in a particular branch, where the bank has several branches the purpose of deposit being remittance to another branch or to another bank, where there is ample time and opportunity to effectuate the purpose of the deposit and, where, the branch, which is a part of a larger whole, fails in its duty, the aggrieved party, subject to foreign exchange laws, if any, would in such a case, have his remedy jointly and severally against the Bank as an entity and its concerned branch. The opinion of M.H. Beg, J., in the case of Indo Allied industries Ltd. v. Punjab National Bank Ltd. AIR 1970 All. 108 does not run counter to this conclusion as the distinguishing aspect in that view is the frustration of the object before the contract, in the normal course, could be performed.
25. The follow up rule, in cases of breach, is that where, before the remedy is sought, the concerned branch ceases to function or cannot be reached, the bank, as an entity, may be sued anywhere it is found to be functioning. It would then be a case of breach of contract between two parties and the party in breach may be sued anywhere it is found. LEX SITUS or the proper law of contract is applied in such cases with all their finer distinctions. Thus, where money is deposited in a branch of a bank to be telegraphically transferred to another branch it is deposited for a specific purpose and that purpose must be ensured and, if it is not, the bank as whole is liable.
26. For coming to the above conclusions brief reference may be made, inter alia, to the ensuing dicta. In the Privy Council case of Henry Prince and others v. Oriental Bank Corporation 1978 3 AC 325 the Judicial Committee observed that in the context of branches of a bank there are no separate and distinct banks but branches of one and the same banking corporation or establishment. They are indeed separate agencies but agencies of one principal, that principal being the bank by itself. Dealing with bills drawn by one branch of a bank on another or transactions between such branches inter sc, the House of Lords in the case reported as Capital and Counties Bank Ltd. v. Gordon 1903 AC 240 observed that the bank, which is the drawer and drawee of such instruments, is not entitled to treat them as bills of exchange, while an holder may sue the bank upon them and treat them either as bills of exchange or as promissory notes. In Leader, Plunket, and Leader v. Direction Der Disconto Gesellsehaft (1914) 31 TLR 83, a case where the plaintiffs had made a request to the branch of the bank in Berlin, where their account was kept, to remit money to the London Branch and the bank refused their request, Scrutton, J., opined that such refusal amounted to a refusal to perform the obligation to pay, where account was opened and the plaintiffs had a cause of action, which they could enforce in England or wherever the bank could be found. The Supreme Court of India in the case of Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh and others AIR 1955 SC 590 paras 45 and 54, in respect of transactions between private parties, the plaintiffs having a credit balance and the defendant, functioning in several places, including Lyallpur and Delhi, and the 'money to the credit of the plaintiffs having been taken over by the Deputy Custodian in Pakistan, declined to decree the plaintiffs' suit on the ground that the debt had come to vest in the Deputy Custodian under the laws of Pakistan and the debtor stood discharged. However, observations were made that cases of breach had to be differently approached and that if vesting had not taken place and money was still due, the situation could very well be different, implying that money could be claimed from the defendants at Delhi since the branches at Lyallpur and Delhi were part of the same entity. In another case from Indian jurisdiction namely, the Central Bank of India v. Multan Mull (1960) 1 MU 187 a Division Bench of the Madras High Court affirmed the view that when money is paid by a person into a bank for a specific purpose which the bank undertakes, in consideration of a charge levied, to carry out, the purpose being to pay the money over to the individual named by the payer of the money, the bank must duly discharge the task by paying the amount actually to the individual named; until and unless this is done, the Bank cannot be heard to say that it has discharged its liability.
27. Learned counsel have relied on the decision in the case of Syed Mehmood Hasan v. United Bank Ltd. in Suit No.871 of 1978 where more or less similar questions arose in this Court and were disposed of by judgment, dates 30‑10‑1985. However, that case was decided on facts in which the telegraphic transfer from an account maintained at the Sadar Ghat, Dacca Branch of U.B.L., was not proved, as the plaintiff had failed to prove instructions to such branch for making transfer. Nor was actual remittance or receipt by the same PECHS Branch, as is arrayed here, proved in that case. Such case, therefore, is distinguishable on facts.
2F Reliance is placed also on an order, dated 5‑9‑1985 passed by the Wafaqi Mohtasib in Re Ruhul Amin Ahmad, as supporting the proposition that the payee bank is liable only if the remittance were received. Wafaqi Mohtasib is a quasi judicial domestic Tribunal. Being manned under Article 3 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order 1983, by a person, who, usually, either has been or is qualified to be a Judge of the Supreme Court, the opinions of the Mohtasib are entitled to respect but the dicta has no binding force in the nature of declarations of Superior Courts, as contemplated in Articles 189 and 201 of the Constitution. With respect, therefore, all that may be said as regards the order in Re Ruhul Amin is that for the purposes of a Telegraphic Transfer all that is necessary is that money should be deposited for such purpose and a proper Telegraphic Message should be sent and received or shown or presumed to have been received and this being done liability to pay arises, no physical remittance being necessary.
29. Accordingly, my findings on issues Nos. I and 2 are in the affirmative. On issue No.3, I am of the view that it is not necessary, in the context of telegraphic transfers, for the Drawee Branch to physically receive the amount remitted. As to issue No.6 the conclusion is that the defendants arc liable to pay the entire amount deposited and sought to be remitted by telegraphic transfer and as to issue No.7 it is held that till the fall of Dacca the liabilities of the branches run in East Pakistan were those of the defendant No.1.
30. As to relief, I will grant a decree only for the principal sum claimed but, as held in the case of Aijaz Haroon v. Inam Durrani 1989 K 304 no interest is allowed, as none is due. No question of taking judicial notice of inflation or its effects either, arises in this case, since the money remitted, at the time, wits different legal tender floating, as it was, on an all Pakistan basis, which then was a different entity. Decree with costs, but no interest or depreciation shall, accordingly, follow.
A.A./Q‑36/KSuit decreed.
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