JUDGMENT

Zafar Ali, J. - This is an appeal under the Companies Act of 1913 against an order accepting an objection and relieving the objector of all liabilities as a share-holder of a bank. The objector was Lala Anup Chand, Advocate of Montgomery who had made an application for 100 shares of the Indian Merchants Bank Limited, but the bank went into liquidation before any shares had been allotted to him. He asserted that if he was given by the managing agent of the bank an assurance that a branch of the bank would be opened at Montgomery or Pakpattan and that he would be appointed a director thereof he would buy 100 shares and that his application for 100 shares was on that assurance. He claimed that he did not become the shareholder because the condition subject to which the application for shares was made was not fulfilled. He was corroborated on this point by the managing agent and two witnesses before whom the agreement had been made. No attempt was made to rebut that evidence The law is clear that if an application for shares is subject to a condition precedent the applicant incurs no liabilities if the condition remains unfulfilled. In this connexion the following may be cited: Peara Singh v. Peshawar Bank Ltd. [1915] 54 P.R. 1915:

I admit the correctness of the proposition of law and there is ample authority in English law in support of it that if a condition is precedent and has not been performed and its performance has not been waived the applicant for shares will not be a contributory. The finding in this case that there was a condition precedent is based on good evidence and cannot be interfered with.

2. The argument that no oral evidence was admissible in proof of the alleged condition because it was stated that it had been reduced to writing and the writing was not called for nor produced, is also untenable. The writing was in possession of the adverse party and from the nature of the case that party must have known that it will be required to produce it. As the said party denied the very existence of the condition it could not be expected that it would have produced the writing if, called upon to do so. The appeal fails and I dismiss it with costs.