1992 PLP 1700 (SCMR)

?Subject:

1. Ferro Alloys Pakistan Ltd. v. Toye Menka' Kaisha Ltd. CA. No: 3 of 1988.

2. Toyo Menka Kaisha Ltd. v. Ferro Alloys Pakistan Ltd. CA. No.536 of 1990.

3. Toyo Menka Kaisha Ltd. v. Ferro Alloys Pakistan Ltd. CA. No. 537 of 1990. Sir, The undersigned has been contacted by the office of Mr. S.M. Zafar, counsel for the appellant in CA. No.3 of 1988. I am informed that you ('011iacted the office in connection with the above cases in which their Lordships had observed about the possibility of cooperation between the parties regarding inspection and testing of the second shipment in question in the above. I have contacted my client, Toyo Menka Kaisha Ltd., Tokyo and I have been instructed that they are ready to fully cooperate in the matter of inspection and testing of the said second shipment and provide all possible technical assistance provided Ferro Alloys Pakistan Ltd. also cooperates and have the second shipment properly made available at proper location in proper condition and without any tampering or pilferage. From the above instructions, it is clear that my client is fully prepared to cooperate and make available all possible technical assistance for inspection and if required, testing of the said second shipment in Pakistan." Aamer Raza A. Khan "Dear Sir, This is with reference to the aforesaid case during the hearing of which the Honourable Chief Justice observed that the parties should explore possibilities of some amicable settlement. Mr. Aamar Raza A. Khan Advocate was contacted by us who suggested to talk to you on the subject. In our telephonic 'conversation of 4‑4‑1991 on the subject the undersigned was informed of some telex instructions received by you from your clients. Please let us have the proposals received by you. In the meanwhile we may suggest that our client is prepared to extend all possible assistance and cooperation in the matter. Per instructions it may be stated that the machinery (subject‑matter of the dispute) has not been got released by our clients (in view of non‑fulfilment of pre‑shipment inspection/testing of the same) from the Customs and the same is lying at KPT, Karachi. Although the contract stipulates for factory testing in view of the peculiar nature of the machinery and availability ‑of necessary equipment/facilities over there only yet if your client make available the testing equipment required for that purpose our client will be ready and prepared to inspect the same. For that matter the availability of the machinery as shipped by your clients will be the responsibility of your client including the payment of necessary duties/charges to Customs/K.P.T. Our client will, however, pay your client the amount of Iqra surcharge i.e. 5% payable on the consignment. This shall be done by your clients within 30 days of toe appropriate order passed by the Supreme Court of Pakistan. However, if the machinery after testing and inspection is not found to be of quality, specification and standard your client shall be responsible to substitute the same with the new one at its risk, cost and responsibility. ' It may be appreciated that a project of our client which was to be completed long ago and for which total price of the machinery has been received by your client could not proceed further on account of contractual violations by your clients resulting in litigation at the cost of money and time." It cannot be said that no progress towards realization of what was expected from the parties and their counsel, has been made. Rather a sound 'basis has already been laid down for further progress and ultimate settlement of the issue involved in these appeals. We, accordingly, while refraining from making any comment on the course proposed and adopted by each party in these communications and/or on the merits of the case otherwise, consider it just and proper to dispose of these appeals with the direction that the parties shall proceed to the next and further stages for settling the subject‑matter of these appeals in accordance with the foundation laid down in the two communications. It is clarified that this order shall not be treated as success or defeat of either party. Accordingly, there shall be no order as to costs. M.B.A./F/239/S?????????????????????????????????????????????????????????????????????????????????? Order accordingly,