2002 PLP 449 (CLC)

"That of the Rs.63,257,053.59 claimed by the plaintiff against the defendant on account of ticket and cargo sale proceeds (including interest/mark‑up and devaluation loss), the defendant as per its own statement dated 25‑2‑2000 has admitted that final balance due to the plaintiff is Rs.58,868,

431. That even after adjustment of Rs.29,300,000 recovered by way of encashment of bank guarantees provided by ANZ Grindlays Bank on 29‑9‑2000, the admitted amount stands at Rs.29,568,431." In counter‑affidavit filed on oath by one Akram Wali Muhammad son of late Wali Muhammad, Director of the defendant‑Company, the same is replied as follows:‑‑ "I have gone through the contents of the application filed by the plaintiff and affidavit in support thereof and have to state that the plaintiff's claim is incorrect and denied. The defendant‑Company has made invemtent and incurred expenses for the promotion of plaintiff's business which are yet to be finalized as the plaintiff has failed to settle the same. The defendant‑Company, therefore, filed a Suit bearing No.1104 of 1998 for the recovery of Rs.156 million, which is still pending adjudication before this Honourable Court. I say that the application filed by the plaintiff is not maintainable as nowhere in the written statement, the defendant‑Company has made any admission regarding the payment of any amount to plaintiff." Heard learned counsel for the parties and perused the record. Mr. Zahid H. Ebrahim, Advocate for the plaintiff, has argued that the statement is based on the details of sales furnished by the defendant during the period of G.S.A. Agreement. Learned counsel has also referred to the paragraphs 5, 6 and 7 of the plaint and the evasive denial by the defendant to the contents thereof in the written statement. Learned counsel has argued that under the provisions of Order XII, rule 6, C.P.C. an admission may be made in the pleadings "or otherwise". His contention is that the admission is unconditional and unqualified and there is no ambiguity, as such all the three conditions laid down to constitute an admission are satisfied. He contended that the plaintiff prepared the statement on the basis of the sale figures as provided by the defendant. Learned counsel also stated that an earlier Suit bearing No.112 of 1999 was withdrawn with permission to institute fresh suit as the requisite permission from the Government of Pakistan was not available at that time. The present suit is instituted obtaining the requisite permissions. Learned counsel has placed on record the copy of certificate, dated 22‑12‑2000 and permission dated 12‑1‑1998 and the renewal of permission of the Government of Pakistan, dated 16‑11‑2000. In support of his contentions reliance is placed on the cases State Life Insurance Corporation of Pakistan v. Walli Muhammad Akbarji and others 1985 CLC 2870, Shaikh Mahmood Ahmed v. Ghaith Pharaon 1987 CLC 2131, Mian Tajamul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137, Mrs. Haseema v. Mrs. Shafqat Malik 2001 CLC 1224, Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam & Imam Ltd. 1989 CLC 2117 and H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609. Mr. S. Abid Sheerazi, Advocate appearing for the defendant, has denied any admission on the part of the defendant either in the pleadings "or otherwise". He raised an objection as to the maintainability of the suit under sections 451 and 456 of the Companies Ordinance, 1984. His contention is that the bank guarantees were encashed by the plaintiff on the strength of orders obtained in suit against the Bank to which the defendant was not made a party and that the defendant has moved an application under section 12(2), C.P.C. being J.M. 41 of 2001 pending before this Court challenging the encashment of the Bank guarantee on the basis of fraud. Learned counsel has argued that the relief granted, by the Court under Order XII, rule 6 is a discretionary relief and not mandatory. His contention is that the plaintiff is a foreigner and after termination of the G.S.A. agreement defendant has already instituted a suit for recovery of damages amounting to Rs.158 Million against the plaintiff which is pending before the Court and in case this suit is decreed, the defendant would not be able to enforce the judgment/decree, if made in their favour. Learned counsel has placed reliance on case Sher Bahadur and others v. Muhammad Amin and others AIR 1929 Lah.

569. On an objection being raised by learned counsel appearing for the defendant that the statement was not prepared by the defendant, he candidly admitted that the basis of the statement was the statement of sales by the defendant as provided by them to the plaintiff during the period covered by G.S.A. Agreement. Learned counsel further admitted that the sale figures were provided, periodically each month by the defendant to the plaintiff and the payment was to be made thereafter in pursuance to the agreement. However, the defendant in spite of making the sale failed to make payment of the sale proceeds against the airline ticket sold by them to the plaintiff. These facts have been categorically stated on oath in the plaint as well as in the affidavit in support of the application under Order XII, rule 6, C.P.C, and the defendant has given evasive replies in the written statement and the counter- affidavit as already reproduced above. The learned counsel for the defendant also conceded that the amount in the statement represents the sale figures. In Shaikh Mahmood Ahmed's case 1987 CLC 2131 admission made otherwise than in pleadings was considered by this Court and it was observed as under:‑‑ "It is again manifestly clear that the above reproduced rule permits any party, at any stage of a suit, where admissions of fact have been made, either on pleadings, or otherwise, to apply to the Court for such judgment as upon such admission he may be entitled to. The admission need not, therefore, necessarily be made only in the pleadings. By laying down or otherwise' the legislature has not restricted the admission only on the pleadings. These words are, in my opinion, of general application and there is no justification on the basis of the language used, in rule 6 of Order XII to confine them to the admission made in the pleading only as the learned counsel :or the defendant desires me to do." In the case of State Life Insurance Corporation of Pakistan v. Walli Muhammad Akbarji and others 1985 CLC 2870 the suit was decreed on admission on the basis of a letter written "without prejudice" and it has been held as under: "Although the plaintiff has marked its letter, dated 21‑3‑1981 as 'without prejudice' it has in clear and absolute terms having accepted the amount paid to it declared that it will withdraw the suit. It is not a case where parties were negotiating a settlement. Here the parties had agreed to the terms and conditions, and in compliance thereof the defendants remitted the Bank draft which was accepted by the plaintiff. In these circumstances, the statement to withdraw the suit .was a firm declaration. The plaintiff's conduct in accepting the payment and making this declaration creates a legal right in .the defendants and, therefore, in these circumstances by stating that the letter is 'without prejudice' cannot rob off the defendants of their legal right. In Crescent Pak Soap and Oil Mills v: Pakistan PLD 1964 Kar. 459 the plaintiff agreed to supply goods to defendant within a date specified by the contract." In Tajamul Hussain's case 1993 SCMR 1137 the admission was contained in a letter that was neither produced nor admitted or exhibited during the proceedings and the Honourable Supreme Court has observed:‑‑ "The learned counsel for the appellants had‑admitted the document which had been filed alongwith the written statement. After being admitted the fact that it was not exhibited does not exclude the document from taking it into consideration. The learned counsel for the appellants had not challenged the genuineness of the document, but admitted it to be genuine and correct. In such circumstances, if the exhibit number was not put on the document it will not make it inadmissible particularly when no evidence was orally produced by the parties. Thus, admitting the document in evidence or relying upon it was not an illegality which may vitiate the judgment and decree passed by the learned single Judge and confirmed by the impugned judgment." In the light of the above discussion I am of the opinion that mere institution of a suit for damages of Rs.158 million by the defendant against the plaintiff or the plaintiff being a foreigner company does not constitute a valid ground to reject this application. In view of the above there exists a clear, unambiguous and unqualified admission of the amount to sale proceeds pertaining to the sale of airline ticket of the plaintiff's airline carried on by the defendant and the plaintiff is entitled to the same. Accordingly this application is allowed and the suit is partly decreed in the sum of Rs.29,568,431 in favour of the plaintiff. The suit will, however, proceed for recovery of the balance outstanding amount of claim not covered under the preliminary decree. Above are the reasons for the short order, dated 30‑10‑2001. Q.M.H./M.A.K./Q‑20/K Application allowed.