1989 PLP 1191 (MLD)

(5)Whether on arrival and receipt of books/consignment the defendant undertook to make the payment against valid import licence and revised invoice? If so, its effect? (6)Whether the defendant company received the consignment of books? If not, who is responsible for failure to get the consignment retire/clear or .for loss of the same? (7)Whether the defendant company is liable to pay the amount of Rs.60,000 in suit to the plaintiff company? (8)What should the decree be?" The respondent, in support of their case, examined P.W.1 Malik Noorani as Exh.1. The appellant examined in support of their case D.W.1 Jamshid Mirza as Exh.2. . The learned trial Judge after recording the evidence and hearing both the learned counsel for the parties came to the conclusion that the consignment arrived at Karachi. The appellant company by their' letter, dated Exh.P/7 had shown their inability to retire the invoice on the score that the date of licence had expired. He also came to the conclusion that the appellant company had deliberately avoided to retire the consignment after having come to know its arrival. For all these reasons he decreed the suit with costs by his Judgment and decree, dated 4‑5‑1985 against which the appellant have preferred this appeal. I have heard Mr. Munawar Ghani, Advocate on behalf of the appellant and Mr. Akhtar Hussain, Advocate on behalf of the respondent. Learned counsel for the appellant contended that the trial Court misread the evidence. The learned counsel 'contended that the exchange was claimed at a higher rate. On the other hand the learned counsel for the respondent submitted that the judgment is in accord with evidence. The rate of exchange was not denied by the appellant. At the very outset I must say that none of the submissions put forth by the learned counsel for the appellant have impressed me. It is not in dispute that the appellant placed an order with the respondent for supply of medical books. It is also not in dispute that the respondent supplied the books and sent invoice alongwith postal receipts Exh.P/2 and P/3. The appellant failed to remit the amount and therefore the respondents sent reminders (Exh.P/4 and Exh.P/51. The appellant sent a reply wherein they admitted the arrival of books and assured to remit the amount. The appellant did not remit the amount and a letter (Exh.P/7) confirming that the import licence sent had expired and wanted a fresh invoice. The responden4 sent fresh invoice through letter' (Exh.P/8). The appellant sent a letter (Exh.P/10) wherein they promised to remit the amount. The parties exchanged correspondence (Exhs.0/11, P/12, P/13, P/14, P/15, P/16 to P/19). It is in evidence that the consignment reached customs and the appellant did not remit the amount of the invoice. I have gone through the evidence and the documentary evidence produced by the parties. It appears that the defence of the appellant was that consignment was not traceable in customs. The appellant sent a letter dated 16‑3‑1980 (Exh.P/6) wherein they stated that the consignment arrived in customs and they asked their representative to get the same retired immediately it is received in their bank. They assured that they would remit the amount. It seems that the trial Court rightly decided this point. The last contention of the learned counsel for the appellant is that the rate of exchange was not rupees nineteen for pound sterling. The value of the consignment was L/2,695.12. The respondent averred in para. 3 of the plaint that B the total value of the consignment supplied by the respondent to the appellant comes to the equivalent of Rs.00,000 which amount includes licence fee, bank charges etc. for the purposes of making the remittance to the respondent. The appellant did not take this plea in their written statement and consequently no issue was struck on the plaint. The appellant are, therefore, not legally entitled to state such plea at the time of hearing, for the first time when no such plea was taken by the appellant in their written statement and there was no issue on the point, the plaintiff/respondent were not supposed to come prepared v to meet such a challenge at the time of hearing. I did not find any force in this contents. This Court cannot take Judicial notice that the rate of exchange was not Rs.19 per pound sterling. Considering all the facts and circumstances of the case and upon the evidence on record, as discussed above, I rind that the learned Senior Civil Judge was perfectly justified in decreeing the plaintiff/respondent's suit. The decree appealed against is accordingly affirmed and the appeal is dismissed but in the circumstances of the case, the parties shall bear their own costs. The above are the reasons for the short order, dated 26‑5‑1988 passed on conclusion of the arguments of the learned counsel for the parties. M.Y.H./R‑90/K Appeal dismissed.