1986 PLP 2898 (CLC)

(2) Whether the defendants are liable to pay the plaintiffs bills as per para. 6 of the plaint amounting to Rs.157,790? (3) Whether the non‑payment of plaintiffs bills without any reason suspension and cancellation of plaintiffs licence was due to the mala fides of defendants Nos. 2 to 4? (4) Whether at the relevant time the plaintiffs were being alocated 4 ships each month? (5) Whether the plaintiffs are entitled to damages amounting to Rs.889,081 as per para. 12 of the plaint as also damages from the date of suit till decree, if any, likewise? (5‑A) Whether the suit is barred under section 69 of Partnership Act? (6) What should the decree be?" On behalf of the plaintiff, P.W. 1 Riaz Ahmed (Exh. 6), gave evidence. His examination‑in‑chief, during which he produced 178 documents, was recorded by this Court. Thereafter, by consent of the learned counsel for the parties, cross‑examination of the plaintiff's witness was recorded on commission as well as the evidence of Haseeb Ahmed Khan Lodhi (defendant No. 3) as Exh. 7, the solitary witness on behalf of the defendants. I have heard at length the arguments of the learned counsel for the parties.

2. Issue No. 5‑A was framed in view of the preliminary objection taken in the written statements filed by the defendants to the effect that the suit is barred under section 69 of the Partnership Act. During the course of the arguments, Mr. S. Hamid Hussain, learned counsel for the defendants, did not press this issue, apparently for the reason that Exh. 6/1 was produced by P.W. 1 Riaz Ahmad (Exh. 6), which shows that the plaintiff's firm is registered with the Registrar of Firms, Karachi. The present suit is, therefore, not barred under section 69 ,. of the Partnership Act. Issue No. 5‑A is decided accordingly.

3. Issue No. 1 is whether the defendants are liable to pay the plaintiff's bills as per para. 5 of the plaint in the sum of Rs.6,57,051.72. In respect of the salvage work, as noticed earlier, two bills (Exhs. 6/57 and 6/58), dated 2‑4‑1979 and 12‑3‑1979 for Rs.2,88,299.44 and Rs.71,280 respectively were submitted by the plaintiff (hereinafter referred to as "the original bills"). These two original bills were submitted under cover of letter, dated 10‑6‑1979 of the plaintiff. In these two original bills the rate for cartons supplied by the plaintiff for repacking the goods was given as Rs.12 per carton. Before submission of bills, the plaintiff had submitted the documents for verification by the Port Captain of the defendant‑Corporation. In these documents the number of labourers employed by the plaintiff for the salvage work on each day the work was done from 27‑12‑1978 upto 14‑2‑1979 was given. The Port Captain, while verifying the details of labour supplied for salvage work, reduced the figures for number of labourers given by the plaintiff. In so far as the number of cartons is concerned, that had been utilized, according to the plaintiff, in respect of repacking of the re‑usable goods, the Port Captain of the defendant‑Corporation verified that the number of the cartons mentioned in the documents submitted by plaintiff were in accordance with the survey report of Messrs Bhombal and Company, the surveyors appointed by the defendant‑Corporation, The survey report of Messrs Bhombal a Company is, dated 18‑6‑1969 and is Exh. 6/83. The covering letter, dated 10‑6‑1979 of the plaintiff enclosing the two original bills mentioned that the details of labour and material verified by the Port Captain were also being enclosed as also a copy of the survey report. I may make here a comment on the survey report of Messrs Bhombal a Company, surveyors. As observed earlier, according to the plaintiffs, they had carried out the salvage operation in the presence of Messrs Bhombal and Company, surveyors of the defendant‑Corporation. This is averred in para. 4 of the plaint. In reply to para. 4 of the plaint, the defendants in their written statements conceded that the defendant‑Corporation had obtained the professional services of Messrs Bhombal Company, surveyors, and their representative was required to remain on site at the time when the entrusted work was being carried out. Then D.W. Haseen Ahmad Khan Lodhi (Exh. 7) has stated in his cross‑examination that Memrs Bhombal Company as surveyors were on the panel of surveyors of the defendant‑Corporation and they were not dishonest or inefficient and that they knew the job of survey and they were reliable surveyors. In para. 4 of the plaint, it is also averred that salvage work entrusted by the defendant‑Corporation to the plaintiff was also carried out in the presence of the Port Captain of the defendant Corporation. In para. 4 of their written statements, the defendants had stated as follows:‑ "It is, however, not admitted that the Port Captain of defendant No. 1 was present or supposed to have been present." However, D.W. Haseeb Ahmad Khan Lodhi, in his cross‑examination, admitted that the Port Captain was stationed at the port at the time the work was being carried out by the plaintiff. He further stated that it was correct that the Port Captain did not personally supervise the salvage work but he used to just come and go. In the original bills, the number of cartons and number of labourers are based on the surveyor's report (Exh. 6/83) and on the verification by the Port Captain of the defendant‑Corporation. No evidence has been led on behalf of the defendant‑Corporation to show that less number of cartons or labourers were utilized /employed in respect of the salvage work. Then the defendants' solitary witness himself produced copies of the two original bills as Exhs. 7/1 and 7/2 which show that these bills had been verified by the operations department of defendant coporation for payment without any deductions or objection. As regards the wages paid to the labourers employed by the plaintiff for the salvage work, P.W. Riaz Ahmad (Exh. 6) had this to say: "We could not settle the wages of the Port Labourers as their wages for different types of work are fixed by the Dock Labour Board. For damage work, double wages are charged by the port labourers. The entire work done in respect of the salvage work on Barge No. 498 and segregation and packing work done inside the sheds was done by the port labourers. We had no choice in the matter. We could not take private labour inside the port area. The entire labour work inside the port area is done by the port labourers, who are to be paid according to the rates fixed by the Dock Labour Board." No evidence has been brought on record by the defendant‑Corporation to show that the rates of wages given in the original bills of the plaintiff were excessive or inflated. On the basis of the evidence, oral as well as documentary, on record, in my view, the plaintiff was entitled to the payment of two original bills in respect of the salvage work, which included segregation and repacking of re‑usable/good articles. The two original bills are Exh. 6/57, dated 2‑4‑1979 for Rs.2,88,299.44 and Exh. 6/58, dated 12‑3‑1979 for Rs.71,

280. The total of these two original bills comes to Rs.3,59,579.44. For the work carried out by the plaintiff reflected by the two original bills, dated 2‑4‑1979 and 12‑3‑1979 (Exh. 6/57 and 6/58), the plaintiff submitted two supplementary bills both, dated 23‑9‑1979. One of the supplementary bills Exh. 6/59 is related to Exh. 6/58 and through this supplementary bill (Exh. 6/59) a further sum of Rs.34,134 was claimed by the plaintiff on account of wages of more labourers and on account of difference in respect of the rates of cartons. In the original bills, the rate of cartons utilized by the plaintiff for salvage work was given as Rs.12 per carton, whereas through the supplementary bill they claimed Rs.20 per carton and as such they claimed Rs.8 per carton in addition to Rs.12 already claimed by the original bills. Similarly, Exh. 6/60 is a supplementary bill for Rs.2,63,338.28 and this relates to the original bill Exh. 6/57. The basis of this supplementary bill was the same as was for the other supplementary bill. It has also been noticed that the parties had not fixed any rates or basis for payment to the plaintiff for the salvage work entrusted by the defendant‑Corporation to the plaintiff. It is denied that the work had been entrusted by the defendant‑Corporation to the plaintiff. As the rates of remuneration had not been fixed, payment had to be made on quantum meruit basis. According to this principle, in a contract for work to be done, if no scale of remuneration is fixed, the law imposes an obligation to pay a reasonable sum i.e. quantum meruit, Mr. Khalid Anwar, learned counsel for the plaintiff, had very strenuously submitted that the evidence has been brought on record that the defendant‑Corporation had approved rates for payment to their contractors in respect of the cartons utilized in the salvage work and the approved rates of the defendant‑Corporation for such cartons was Rs.20 per carton and this the plaintiff came to know after they had submitted their original bills, in which they had billed Rs.12 for each carton. According to Mr. Khalid Anwar, when the approved rates of the defendant‑Corporation were available, the same could be taken as the basis for payment to the plaintiff. There is some documentary evidence on record about the approved rates of the defendant Corporation, but I am not impressed by the aforesaid contention raised by the learned counsel for the plaintiff. Learned counsel for the plaintiff had conceded that the plaintiff was entitled for payment of the work done by him on quantum meruit basis, as no rates had been fixed between the parties. The plaintiffs themselves in their original bills fixed the rates of carton at Rs.12 per carton. According to the plaintiff, therefore, this rate of Rs.12 per carton was the rate, which not only covered their costs but also gave them some profit. It is reasonable to assume that normally no contractor, in a case where the rates have not been fixed for work entrusted, would bill the owner at rates, which will cause loss to the contractor. This rate of Rs.12 per carton, I therefore, can safely be taken as a reasonable basis for compensating the plaintiffs for the cartons utilized by them in the salvage work ' entrusted to them, for which no rates had been fixed. Defendant‑Corporation may have their own rates and which might be higher than Rs.12 per carton but the plaintiffs themselves had in their original bills fixed the rate of Rs.12 per carton and as such they cannot later on claim at Rs.20 per carton on the basis that the defendant‑Corporation had approved rate of Rs.20 per carton. The situation might have been different in case the original bills submitted by the plaintiffs had shown the rate of Rs.20 per carton and it was established that the approved rate of the defendant‑Corporation was Rs.20 per carton and there had been no other acceptable evidence on record showing a lesser rate than Rs.20 per carton but this is not the situation here. As observed earlier, the plaintiffs themselves billed at Rs.12 per carton, from which it can be inferred that Rs.12 was a fair compensation for each carton utilized by the plaintiff for the salvage work. The other amount claimed in the supplementary bills is for more labourers employed for the salvage work. According to the learned counsel for the plaintiffs, the plaintiffs had submitted details about the labourers employed for the salvage work but the Port Captain, while verifying such details, had cut down the number of labourers employed on each day the work was done by the plaintiffs. According to the learned counsel, this deduction in the number of labourers was done arbitrarily by the Port Captain of the defendant‑Corporation. Learned counsel had relied upon the statement made by D.W. Haseeb Ahmad Khan Lodhi (Exh. 7) in his cross‑examination that Port Captain had not personally supervised the salvage work and he used to come and go. The details about the number of labourers employed for the salvage work on each day the work was done were submitted by the plaintiff in March and April, 1979. The original bills were submitted under cover of letter, dated 10‑6‑1979. The supplementary bills were submitted on 23‑9‑1979. If the Port Captain had arbitrarily reduced the number of labourers, some protest, complaint or grievance would have been made by the plaintiffs. No such protest, complaint or grievance was made but the plaintiffs submitted their original bills in June, 1979, on the basis of the number of labourers verified by the Port Captain of the defendant‑Corporation to have worked on the salvage operation. Mr. Khalid Anwer had submitted that the plaintiff was in no position to make any protest, as they were dealing with a semi‑Government corporation and if any protest had been made, no payment at all would have been made by the defendant‑Corporation. In the facts and circumstances of this case, I find no merit in this submission. If the action of the Port Captain was plainly arbitrary, the plaintiffs should have protested and brought on record the fact that the reduction in the number of labourers by the Port Captain was not proper. Then, apart from the details submitted by the plaintiffs about the number of labourers employed on each day the work was being carried on, there is no other documentary evidence produced by the plaintiff to establish the veracity of such figures. All these figures about the number of labourers working on each day during December, 1978 and January and February, 1979, were supplied by them much after the work had been completed. Perhaps the plaintiffs would have been on a better wicket if after each day, they had informed in writing about the number of the labourers that had been working on the entrusted job and if no protest or objection had then been raised on behalf of the defendant‑Corporation, it could have been stated later on that the figures given by the plaintiffs were correct. In the facts and circumstances of this case, the figures of labourers verified by the Port Captain and accepted by the plaintiffs in the sense that they had submitted their two original bills on the basis of such verified figures, are accepted. The figures given in the supplementary bills cannot be accepted as having not been approved. The plaintiffs are, therefore, not entitled to any payment against the two supplementary bills i.e. Exh. 6/59 and Exh. 6/60. The plaintiffs are only entitled to the amount billed in the two original bills i.e. Exh. 6/57 and Exh. 6/58 and the total of these two original bills comes to Rs.3,59,579.44. On issue No. 1 my finding, therefore, is that the defendant‑Corporation was liable to pay Rs.3,59,579.44 in respect of the plaintiffs' bills for the salvage work against which an amount of Rs.64,645 (details given in the next paragraph) was deposited by the defendant Corporation in this Court during May, 1983, which amount has been withdrawn by the plaintiff, leaving a balance of Rs.2,94,934.44 payable by the defendant‑Corporation to the plaintiff.

4. Issue No. 2 is whether the defendants are liable to pay the plaintiffs' bills as per para. 6 of the plaint a sum of Rs.1,57,

790. According to para. 6, at the time the bills for the aforesaid salvage work had been submitted, other bills submitted by the plaintiffs amounting to Rs.1,57,790 were outstanding against the defendant Corporation and a list of such bills was given in Annexure "I" to the plaint. Annexure "I" gives details about 36 bills in respect of various ships. The list of bills gives the bill number, its date, name of the ships with date of arrival and the amount of bill. Reply in their written statements by the defendant‑Corporation about these 36 bills is contained in para. 6 of their written statements and the same is reproduced herein below: ‑‑ "That in para. 6 of the plaint though it is not disputed that the bills, as referred to in Annexure "I" to the plaint were submitted to the answering defendant from time to time, it is vehemently denied that all the bills are/were pending at the time of the institution of the present suit. The plaintiffs are put to the strict proof of the answering defendant's liability to pay the said bills." From the reply of the defendants it follows that the various bills mentioned by the plaintiffs were submitted by the plaintiffs to the defendant‑Corporation from time to time but they were not pending at the time of the institution of the present suit. It may be observed that copies of all these bills were produced in his evidence by P.W. Riaz Ahmad. Denial about the pendency of the said bills means that either the bills had been paid or the bills were returned on the ground of some error or non‑submission of some documents required to be attached with the bills. From the aforesaid reply in para. 6 of the written statements it appeared that none of the bills mentioned in Annexure "I" to the plaint was pending but from the evidence of D.W. Haseeb Ahmad Khan Lodhi (Exh. 7) this stand of the defendant‑Corporation has been found to be incorrect. On 12‑4‑1983, when this suit was fixed for recording evidence, this Court directed learned counsel for the defendants to ascertain as to what amount according to the defendant‑Corporation, was due to the plaintiff. Pursuant to this order, letter, dated 19‑4‑1983 of defendant‑Corporation addressed to Mr. Hamid Hussain Advocate was filed and according to this letter defendant‑Corporation was agreeable to pay the following amount to the plaintiff:‑ (i) For m.v. SUTLEJ (i.e. the salvage work)‑‑ Rs.64,645 (ii) For pending bills‑‑ Rs.56,460 ‑‑‑‑‑‑‑‑‑‑‑ Total Rs.121,105 ‑‑‑‑‑‑‑‑‑‑‑‑ By order, dated 26‑4‑1983 it was observed that this amount was not disputed and defendant‑Corporation was directed to deposit this amount in Court and the plaintiff was allowed to apply for withdrawal of this amount without pre4udice to their other claims. The said amount of Rs.1,21,105 was deposited by the defendant‑Corporation and it was withdrawn by the plaintiff. In spite of the clear stand taken by the defendant‑Corporation in their written statement that no bill of the plaintiff was pending, it has been found that several bills, even according to the defendant‑Corporation, were pending, and, as observed earlier, in May, 1983, i.e. after nearly 3 years of the filing of this suit, defendant Corporation deposited in Court a sum of Rs.1,21,105 which sum included an amount of Rs.56,460 towards payment of several bills listed in Annexure "I" to the plaint. In respect of the bills mentioned in Annexure "I" to the plaint two statements (Exhs. 6/5 and 7/6) were produced in his evidence by D.W. Haseeb Lodhi which show that according to this witness more than half of these bills had not been received by the defendant Corporation. This stand taken by the defendants through their witness Haseeb Lodhi is contradictory to the clear stand taken by them in para. 6 of the written statement. As observed earlier, according to para. 6 of the written statement, defendant‑Corporation had received all the aforesaid 36 bills detailed in Annexure 'I' to the plaint. There is no averment on behalf of the defendant‑Corporation that the bills were bogus, exaggerated, wrong or not payable. Their stand in the written statement was that none of the aforesaid 36 bills were pending. Then as has been seen, payment of several of these bills was deposited in Court after the present suit was filed. D.W. Haseeb Lodhi gave some evidence about the pending bills. However, except those bills against which an amount of Rs.56,460 was deposited in May, 1983 in Court no evidence has been brought on record by the defendant Corporation showing or evidencing payment of any other bills listed in Annexure "I" to the plaint. The plaintiff has denied that payment of any other pending bill had been made by the defendant‑Corporation. If the stand of the defendant‑Corporation was that any other bill or bills had been paid, they should have brought documentary evidence show that in fact payment of such bill or bills had been made. Such documentary evidence would have been the original cheques produced through a representative of their bankers or receipts or signed vouchers or any correspondence exchanged between the parties. No such effort has been made by the defendant‑Corporation. As the bills had been received by the defendant‑Corporation (as per para. 6 of their written statement) and no stand having been taken that the said bills were wrong, bogus or fictitious or exaggerated and the only stand that had been taken was that none of the said bills was pending, in my view, the defendant‑Corporation is liable to make payment of the aforesaid outstanding bills as no evidence has been brought on record that the said bills had been settled. On issue No. 2 my finding is that in respect of the plaintiff's bills mentioned in para. 6 of the plaint read with Annexure 'I' to the plaint, a sum of Rs.1,57,790 was payable by the defendant‑Corporation to the plaintiff out of which a sum of Rs.56,460 was deposited by the defendant‑Corporation in this Court which has been withdrawn by the plaintiff and as such a sum of Rs.1,01,330 remains payable against pending bills.

5. Issue No. 3 is whether the non‑payment of plaintiff's bills was due to mala fides of defendant Nos 2 to

4. In the evidence of P.W. Riaz Ahmad there is no specific allegation against the defendant No. 2I or 3 or

4. It has not been established by the plaintiff that non‑payment of any of the plaintiff's bills or the suspension /cancellation of the plaintiff's licence was due to the mala fides of any of these there defendants. Issue No. 3 is decided in the negative against the plaintiff.

6. Issue No. 4 is whether at the relevant time the plaintiffs were being allocated 4 ships each month for tally work. In his evidence, P.W. 1 Riaz Ahmad has stated that prior to the suspension of their licence, on an average 4 ships were being allocated each month by the defendant‑Corporation to the plaintiff for tally work. The solitary witness on behalf of the defendants (Haseeb Lodhi) stated in his cross‑appointmenttally contractors. A nougli give any tally work to the plaintiff, as observed Lrlier, the previous arrangement of allocation of about 4 ships a month came to an end due to the unlawful and arbitrary actions of suspension and termination of plaintiffs' appointment as tally contractors. But for such unlawful actions, plaintiff was expected to be allocated ships for tally work as was being one reviously. For, damages suffered by the plaintiff on account of non‑allocation of ships for unlawful and arbitrary actions, on the part of the defendant, compensation is due to the plaintiff. Dameges suffered by the plaintiff on account of the unlawful actions of the defendant Corporation directly flow from such actions. Plaintiff has claimed Rs.4,80,000 as damages on account of non‑allocation of ships for 12 months @ Rs.10,000 per ship for 4 ships, every month. But this claim appears to be exaggerated. account books in support of his claim that Ahmed did not produce any were making net profit of Rs.10,000 per ship allocated to the plaintiff. I am reducing the claim by 50%. Damages to the tune of Rs.2,40,000 are being awarded for non‑allocation of ships for one year. No interest has been claimed by the plaintiff but in cases where decree for payment of money is passed, the Court has power to award interest with effect from the date of the filing of the suit till the date of decree and for future till realization of decretal amount even in the absence of a prayer for interest. In his evidence, P.W. Riaz Ahmad has asked for interest. On the amount withheld by the defendant Corporation due against the bills of the plaintiff i.e. Rs.3,96,264.44, I am awarding interest. A claim for Rs.1,91,680 has been made on account of inflation. Perhaps depreciation in the value of currency of the country due to passage of time may. be a consideration for claiming damages in a money his question does not require determination in this suit as in suit but this question his evidence P.W. Riaz Ahmad had claimed interest in the alternative for the claim based on inflation. As observed earlier, interest is being awarded. Claim on the basis of inflation is not accepted in this case. `are Claim on account of expenses for six months for maintaining off' the plaintiff (Rs.64,325) is not allowed. Damages of Rs.2,40,000 ion account of suspension of allocation of ships are being awarded. Claim of Rs.1,53,076 on account of withholding of money payable to the plaintiff is also not being allowed. As observed earlier, interest on the amount due against the plaintiffs' bills is being awarded ravated damages can be granted in appropriate Exemplary or age rant of exemplary cases but in the present case there is no prayer for damages. The plaintiff is entitled to Rs.2,40,000 as damages. Issue No. 5 is decided accordingly. Rs.3,96,264.44 to the plaintiff

8. Defendant No. 1 is liable to pay a] bills and Rs.2,40,000 as damages against pending. Suit No. 604 of 1980 is decreed in favour of the plaintiff and as against defendant No. 1 in the sum of Rs.6,36,264.44. The plaintiff shall also be entitled to interest @ 14% per annum on Rs.3,96,264.44 date of filing of the suit till realization. Plaintiff shall also be from the entitled to costs of this suit as against defendant No.

1. Suit as against defendants Nos. 2, 3 and 4 is dismissed with no order as to costs. A. A. ‑‑‑‑ Suit decreed.