4989 PLP 2070 (CLC)

3. The operative part of such agreement stipulated that PICIC agreed to purchase the above‑said fifty thousand Redeemable Cumulative Convertable Preference shares of Arag against payment in cash of a sum of Rs.5,00,000, such shares bearing a fixed cash dividend of 8‑1/2% per cent per annum provided that HEL shall simultaneously sell to PICIC one lac ordinary shares of Arag of the face value of Rs.10 each at a price of Rs. 15 per share against payment in cash in the sum of Rs.1500,000.This agreement, inter alia, further provided that commencing from the date of transfer of the Ordinary shares to PICIC and until the shares are held by PICIC, HEL guaranteed minimum cash dividend on the said shares of not less than 15% per annum i.e. Rs.1.50 per share shall be paid to PICIC each year within four months from the date of closing of the accounts of Arag, provided that if, in any year, PICK received no dividend or received less than the guaranteed 15% dividend HEL shall pay to PICIC the full amount equal to such 15% or make up the shortfall, if any, and that such payments shall be made to PICIC within four months of the closing of the financial year applicable to Arag. This agreement also stipulated that on the expiry of a period of four years from the date of transfer of the Ordinary shares to PICIC, PICK shall have the right to sell back and HEL shall be bound to purchase the said ordinary shares from PICIC at a price of Rs.17 per share. Corresponding rights were also conferred on HEL, who on the expiry of such period of four years could require PICIC "to re‑sell the said shares upon the said terms". A proviso was, however, added to the effect that the corresponding right of HEL shall not be so exercised as to prejudice PICIC of its right to claim dividend for the year. Emphasis has been laid and pointed attention has been drawn by Mr. Fakhruddin Faruqui, learned counsel for PICIC, to clause 7 in the said agreement, which is reproduced hereunder:‑‑ "

7. The seller shall deliver to PICIC the said shares duly transferred in the name of PICIC within ten days from the date hereof and shall bear the cost of such transfer." The implication, according to Mr. Fakhruddin Faruqui, is that it were HEL, who were the sellers and were mentioned as such:‑‑

4. As regards the terms of re‑purchase, pursuant to the exercise of option referred to above, the Agreement stipulated that in the event of failure for any cause whatsoever on the part of HEL or PICIC to purchase or re‑sell the said shares, within ten days from the date of the exercise of the aforesaid option, HEL or PICIC, as the case may be, shall be at liberty to purchase/sell the said shares in open Market at the risk and costs, of the other party. These shares were to be free from all encumbrances and all costs and expenses in the transaction evidenced by the said Agreement were to be borne by IIEL. The parties signed this agreement individually as such parties and whereas in the typed version the Common Seal of the " Managing Agents" was referred to as having been affixed, such seal was that of Habib Enterprises Limited, Karachi.

5. Subsequent to the above‑said Agreement, an alteration, on the same terms, through correspondence between PICIC and HEL was brought about, as a result whereof, instead of PICIC purchasing one lac Ordinary shares and fifty thousand Preference Shares of Rs.10 each PICIC purchased only 1,.'30,1x10 ordinary shares of Rs.5 each at a price of Rs.7.50 per share and none of the Preference Shares. This, apparently, inter alia, happened because the face value of the said shares was adjusted to be Rs.5 instead of Rs.10 per share. As a result Agreement dated 15‑11‑1968 mutatis mutandis remained applicable to 1,30,000 Ordinary Shares of Rs.5 each of Arag for which the guaranteed minimum cash dividend per share was to be not less than 15% per annum i.e. paisas 75 per share of Rs.5 and the re‑sale price come to be Rs.8.50 per share of Rs.5. This came about through correspondence which we shall presently see.

6. The first letter, placed on record, regarding the above alteration is dated 15‑7‑1909 from Arag to PICIC Exh.6/5 and refers to "the recent discussions held between Mr. Abdur Rehman H. Habib and the undersigned (Iqbal Ismail, Director, Arag) and Mr. Said Ahmed, Managing Director PICK" as a result whereof the above reproduced altered terms were confirmed and request was made to effect the alterations in the agreement Exh.6/.1 and to forward the duly signed copy to Arag. No reply to the same is brought on record nor does it seem that any altered version of Exh.6/4 was signed or forwarded. However per letter dated 4‑11‑1969 (Exh.6/6) from HEL to PICIC it was recorded that in discussions between PICIC & HEL held subsequent to the Agreement dated 15‑11‑1968 the above quoted alterations were brought about and acknowledgement was made that the consideration money of Rs.9,75,OtX) had "been received by us" and the share certificates stood delivered. Confirmation that the agreement of 15‑I1‑1968 applied only to 1,.30,000 Ordinary Shares of Rs.5 each was sought. Vide a letter dated 21‑11‑1969, addressed by PICIC to HEL (Exh.6/7), the altered situation, as reflected in Exh.6/6, was confirmed but no copy of either of these letters Exhs. 6/6 & 6/7 seems to have been endorsed to Arag. Through letter dated 28‑2‑197(1 Exh.6/8 Mr. Abdul Rchman Habib, Director, H.E.L., asked PICIC to confirm that on account of change in the face value of shares from Rs.10 to Rs.5 per share the re‑purchase and re‑sale price shall be Rs.8.50 per share of Rs.5 each and it was recounted that such confirmation was also earlier sought through letter dated 4‑11‑1969 (Exh.6/6). No copy of such letter again seems to have been forwarded to Arag. Confirmation, as required, was made by PICIC to H.E.L. (Exh.6/9). Again no copy of the same appears to have been addressed to Arag. Through letter dated 9‑1‑1971 (Exh.6/10), PICIC requested H.E.L. "to send us our dividend warrant amounting to Rs.97,5t10 (Rupees ninety seven thousand five hundreds) only, at your earliest convenience, as M/s. Arag Industries Limited, within four months of its closing of the final account of the Company, had not declared any dividend and as under "Clause 4 of the Agreement between yourself and PICIC, you are required to pay minimum 15% cash return to PICIC on 1,30,000 Ordinary Shares of Arag Industries Ltd." No copy appears to have been endorsed to the M/s. "Arag". Per letter dated I1‑1‑1971 Exh.6/11, H.E.L. asked PICIC "to wait till the holding of the Meeting so that actual liability on our part can be determined" and such Meeting was communicated to be scheduled in 'March, 1971. In response, through letter dated 16‑1‑1971 Exh. 6/12, PICIC intimated to H.E.L. (no copy to Arag Industries Limited) that they were prepared to wait for declaration of dividend provided that "you agree to pay an interest at 9‑1/2% per annum on Rs.97,500 from 1‑2‑1971, till such time the dividend is paid by the Company." No reply seems to have been made to letter dated 16‑1‑1971, and, therefore, through letter dated 11‑5‑1971, from PICIC to H.E.L. (Exh.6/13) PICIC claimed dividend of Rs.97,500 and interest at 9‑1/2% per annum from 1‑2‑1971 to 15‑5‑1971 in the sum of Rs.1,928.63 and thus a total claim of Rs.99,428.63 was raised against H.E.L. No copy of such claim seems to have been forwarded to Arag. Vide a letter dated 3‑6‑1971 (Exh.6/14), from PICIC to H.E.L., the former complained "that your liability on the above account has not yet been discharged. Kindly make the payment immediately". No copy again of Exh. 6/14 was earmarked for Arag. Per letter dated 22‑7‑1971, from PICIC to H.E.L. a reminder of the claim plus interest upto 31‑7‑1971, was addressed but no copy was forwarded to Arag and none, as before, objected. The next link in the chain of correspondence is letter dated 5‑10‑1971 Exh.6/16, from PICIC to H.E.L. (no copy to Arag) in which added to the grievance is a claim of interest upto 19‑10‑1971, raising the total of such claim to Rs.1,03,391.97. Nothing, in the meantime, appears to have been done. PICIC through their letter dated 28‑3‑1972 (Exh.6/17), asked H.E.L. to pay additional dividend of Rs.97,500 for the year ending 30th September, 1971, plus interest at 9‑1/2% upto 30‑3‑1972, bringing the total claim to Rs.2,07,350 but, as consistently before, again no copy seems to have been marked to Arag. Such claim through letter dated 28‑6‑1972 Exh.6/18 from PICIC to H.E.L. was raised to Rupees 2,13,907.98 including interest upto 30‑6‑1972. Letter dated 17‑8‑1972 (Exh.6/19) is a reminder from PICIC to H.E.L. Through letter dated 25‑10‑1972 (Exh.6/20), PICIC threatened legal action to H.E.L. for recovery.

7. In the meantime, through Notification dated 15‑1‑1972, Companies (Managing Agency and Election of Directors) Order 1972, (P.O. 2 of 1972), was promulgated whereby Managing Agencies were terminated. It seems that H.E.L. through letter dated 25‑17‑1972, for the first time, took a plea of discharge following upon the promulgation of the said Presidential Order (such letter not exhibited) to which PICIC replied through their own letter dated 20‑12‑1972 (Exh.6/21) wherein they stated that H.E.L. were sellers of the share's involved and it was only a coincidence that, at the relevant time, they were Managing Agents of Arag and further that the Presidential Order, above‑referred, did not effect the rights of third parties. Upto date claim of dividend and interest was raised once again by PICIC, failing which legal remedies were intimated to follow. Exh.6/24, is the legal notice by M/s. Orr‑Dignam to H.E.L. dated 20‑4‑1973, and the amount claimed therein is Rs.3,28,232.75 Mr.Abdul Latif A. Shakoor, advocate, addressed its reply dated 2‑5‑1973 (Exh.6/28). On 1‑6‑1973, the above Suit was instituted. However, a letter dated 10‑8‑1974 (Exh.6/26), was, subsequently, addressed by PICIC to H.E.L. in which they exercised their right to re sell the above‑said 1,30,000 of Ordinary Shares of Arag at the stipulated rate of Rs.8.50 per share and claimed an amount of Rs.1,105,000 within a period of 10 days under clause 6 of the Agreement dated 15‑11‑1968. This was replied to by M/s, A.A. Fazeel & Co., on behalf of H.E.L. through their letter dated 20‑8‑1974 (Exh.6/27),in which they said that the matter of right to re sell was subjudice in the above Suit and that H.E.L. had taken a plea that they were not bound to re?purchase nor to entertain any claim in that regard, the matter was awaiting adjudication and if any action was taken, it would be at the risk of H.E.L.

8. Subsequently, through an amendment in the plaint, the claim in relation to the right of re sale has also been introduced in the Suit and amended Plaint in that behalf was submitted on 24‑6‑1976.

9. The defence in the Suit, inter alia, is that the Agreement dated 15‑11?1968, was never acted upon and it is denied that all or any of the provisions of such Agreement are relevant. It is said that the Plaintiffs had backed out from their commitment to purchase the Redeemable Cumulative Convertible Preference Shares. Without prejudice to the foregoing, it is urged that the Agreement for payment of the guaranteed profits on Ordinary Shares, in absence of actual declaration of dividends, is illegal and invalid and cannot be enforced. Nor is HEL liable to pay any interest. In the alternative, but without prejudice, it is pleaded that HEL have ceased to be the Managing Agents of Arag pursuant to President's Order 2 of 1972, and the Agreement, if any, to pay the guaranteed profits or to do any other thing was frustrated and that HEL could not be saddled with any liability for this reason also. It is said that HEL, entered into such Agreement as Managing Agents only. PICIC claim of re purchase is stated to be hit by Order 2, Rule 2, C.P.C.

10. As many as 14 Issues were drawn in this case but Mr. S.A. Shamsi, appearing for HEL, has limited his contentions to Issues Nos.5, 6 and 10 only, which for convenience, are reproduced hereunder:‑

5. Whether the Plaintiff is not entitled to the amount of interest as claimed?

6. Whether the Defendant is not liable to pay the guaranteed profit or any other amount claimed in suit after the Defendant ceased to be the Managing Agent of Defendant No.2?

10. To what relief the plaintiff is entitled ?"

11. PICIC, plaintiffs in the case, have examined PW.1, Amin (Ex.5), who has stated that he is Member of Karachi Stock Exchange. He deposed that, in response to PICIC letter dated 20‑2‑1975 (See Exs. 5/3 & 5/4) through his letter dated 22‑2‑1975, (Ex.5/1) he had informed PICIC that they had no potential buyer to dispose of the shares of Arag Industries at the time. He has further stated that on the basis of the published report of the Karachi Stock Exchange (Ex.5/2) the quoted price of one such share was Rs.1.25. Exh.5/2, however, consists of three such reports, the first of which is dated 30‑9‑1976 and confirms this position as on that date. The next quotation of the Karachi Stock Exchange is dated 30‑9‑1972 in which the quoted share value of a share of the face value of Rs.5 of Arag is shown to be Rs.2.50 on such date. A further attachment in Ex.5/2 is a similar quotation dated 30‑9‑1974, where such value of a share of Arag is shown to be Rs.1.95.

12. PICIC have also examined Ghani Haji Yousuf, their Deputy Managing Director, (as Ex. 6) and such witness has produced the agreement and correspondence, referred above. He has supported the evidence as reflected in such documents. He has, in his cross‑examination, admitted that Arag Limited is in liquidation and that PICIC have not raised any claim against it in liquidation proceedings. He has denied that there was no modification of the Agreement dated 15‑11‑1968. He has denied that H.E.L. entered into the agreement only as Managing Agents of Arag Limited. He has denied that except M/s Haji Karim Tai (author of Ex. 5/1) PICIC did not contract any other broker and has said that they had also contacted others including Sheheryar Irani. He has stated that after 25‑6‑1973, they made several attempts to re‑sell the shares but the prices were so low that the same could not be sold.

13. The defendants HEL, on 28‑1‑1987, stated that they did not wish to lead any evidence and, as such, this case was posted for arguments. The learned advocate for the defendant seems to have opted for decision, without oral evidence from his side, on the premises that in the face of documentary evidence, which speaks for itself, oral evidence may not be of relevance. The principle on which sections 91 and 92 of the Evidence Act, 1872 (since repealed) and the present corresponding provisions in Articles 102 and 103, Qanun‑e‑Shahadat, 1984, appear to be founded is that where terms of a contract, grant or any other disposition of property are reduced into writing no oral evidence as to the terms', of the same is admissible. Even so, it appears that if the question of title as to the j shares, which arc the subject‑matter of transfer, was involved and the position, prima facie, arising from the contract was disputed it may not be wholly irrelevant to explain the position either through documents of title and, to limited extent, on the basis of oral testimony. However, since the object of the learned counsel appears to be based on the wholesome approach of avoiding repetition and un?necessary delay I am not inclined to draw any adverse inference on that basis.

14. Coming to merits, I would take up Issue No.6, first for consideration. The contention of the learned counsel for the Defendants is that H.E.L. had entered into the contract as Managing Agents of Arag and there was o liability on them to fulfil the terms of the contract, apart from being such Managing Agents, and that the contract stood frustrated on account of supervening circumstances, not in contemplation of the parties, upon the promulgation of President's Order 2 of 1972, on 15‑1‑1972. Reference in this connection is made to Articles 2, 4, 6(1) and 6(2)(b) in P.0.2 of 1972. Reliance is placed on Abdullah v. Karim Haider PLD 1975 Kar. 585 and M/s Mansudas Bodaram v. Hussain Bros. Ltd. PLD 1980 SC

122. It is also contended that under section 73 of the Contract Act, plaintiffs did nothing to mitigate the damages. Alternatively, Mr. Shamsi urges that the liability, if any, commenced on 5‑3‑1970 and ended on 15‑1?1972 with the promulgation of P.0.2 of 1972.

15. On the other hand, Mr. Fakhruddin Faruqui, learned Counsel for the plaintiff, has maintained that the liability is squarely that of H.E.L., who acted for themselves and it was only incidental, that they happened to be Managing Agents of Arag at that time and further that there was no suggestion from H.E.L. for re?sale of the shares in the open market with the result that the pica of mitigation of damages cannot be raised.

16. Now, para. (d) in the preamble to the Agreement dated 15‑11‑1968, shows that while H.E.L. were Managing Agents of Arag, they at the same time were owners of ordinary shares totalling one lac such shares and the expression used in relation to such category of shares is that the same were "held by them" (HEL). Ostensibly, it is these very shares, which from the face value of Rs.10 each were later converted as those of the face value of Rs.5 each, in the process doubling in quantity, without effecting total valuation or holdings. Para.l of such Agreement further shows that H.E.L. were obliged to sell such one lac shares as the expression used is that HEL "shall simultaneously sell" implying that they were the owners thereof. In para. 4 of the said Agreement, H.E.L. guaranteed a minimum dividend of 15% on these shares, payable within four months from the 30th of September, each year. The Agreement, in Para. 5, contemplates an option, on the expiry of four years from the date of transfer, to re‑sell or re?purchase between PICIC and HEL, indicating that H.E.L. were directly involved. Para.6, of the Agreement envisages a remedy for sale or purchase in the open market,‑in the event the exercise of option is not honoured from either side. In para. 7, the Agreement expressly refers to the Managing Agents as "the seller". Para.8, stipulates that there is no right, lien or claim on such shares meaning thereby that HEL were absolute owners of such shares. The Agreement (Exh.6/4), is signed by H.E.L., as such, and not as Managing Agents of Arag Ltd., Likewise, Arag Ltd., themselves, have signed the same, as such. Through Exh.6/6, a letter dated 4‑11‑1909, from HEL to PICIC, the terms and conditions in the agreement (Exh.6/4) were altered but only to the extent that instead of the Redeemable Cumulative Convertable Preference shares and one lac Ordinary Shares afore said, only 1,30,000 Ordinary Shares, now of the face value of Rs.5 each, were sold, and it was acknowledged that "total price of Rupees 9,75,000 has been received by us". This shows that the altered version of the Agreement dated 15‑11‑1968 had been acted upon. Further, per letter dated 28‑2‑1970 (Exh.6/8), H.E.L. asked PICIC to "please confirm in accordance with our mutual understanding" the terms regarding re‑sale and repurchase. This was done through Exh.6/9, which is dated 5‑3‑1970. In Exh.6/11, a letter dated 11‑1‑1971, from H.E.L. to PICIC, the former did not disown their liability to make up for default of dividend and requested to wait till the holding of the General Body Meeting of Arag, "so that actual liability on our part can be determined". In fact, there is no immediate retraction of liability even after the introduction of President's Order 2 of 1972, which was promulgated on 15‑1‑1972. The first such repudiation seems to have come about through HEL letter dated 25‑11‑1972 (not brought on record but replied to on 20‑12‑1972 Exh.6/21) and, presumably, shelter was taken, as an afterthought, under the above‑said Presidential Order.

17. It is thus clear that while H.E.L. were Managing Agents of Arag, they entered into the sale of the shares in question as independent owners thereof and made certain a guarantees in relation thereto for which their Managing Agency is irrelevant. As such, in answer to Issue No.6, the irresistible conclusion is that H.E.L. were liable to re purchase the said shares on the expiry of four years, as stipulated.

18. The question of payment of interest, under Issue No.5, and the disbursement of guaranteed dividend are interrelated and interconnected matters and may be considered together. In the case of Aijaz Haroon v. Inam Durrani (Suit No.375 of 1975 decided on 8‑2‑1989), I have already held that interest, in no form or manifestation is payable under the Pakistan Dispensation of Law and, as such, cannot, under any circumstances, be decreed by a Court of law. Guaranteed payment of dividend, or for that matter, any other guaranteed or fixed payment or return on capital, irrespective of accrual of profits, also partakes of the same genus and unless it is established that in actuality, profits were made but were not disbursed, allowing or decreeing such fixed guaranteed dividend or ,, like payment should tantamount to permitting accretions on capital regardless of its gainful application and, accordingly, is not only impermissible but, positively, prohibited. There is nothing on the record of this case to show that any profits whatever were made, what to say of their being commensurate with the fixed and guaranteed dividends and therefore, such claim is not enforceable.

19. The rationale behind the prohibition of interest in an Islamic polity is its potential in making the rich richer and the poor poorer, dragging the down?trodden sections of Society further and further down the abyss of dismissal and abject levels of deprivation. In modern times, when industrialisation and commercialisation are the order of the day an industrialist is want to borrow money on interest and adds it to his costs, super adding his own profit thereon, the wholesaler purchases the industrial output on like borrowings and the retailer, in his turn, also subsisting on interest bearing loans, each add to interest his own profits, and thereby concertedly and irretrievably, take the end product beyond the reach of the common man. Like is the situation in all sectors of such modern day economics including the agricultural sector and, invariably, the sufferer is the common man, the man in the street. Such would not be the case if capital is advanced on profit sharing basis and each factor of production is paid only its just due. Muzarabat & Musharika contracts and all other forms of application of capital on profit sharing basis alone are permissible. Thus, only if interest is precluded and prohibited, in all its sundry forms, a just and equitable economic order, with a fair corresponding price structure would, inevitably, emerge, bringing the national output, primarily the fruit of sweat and toil of labour, within the reach of all sections of society.

20. The plea of frustration, advanced by Mr.Saleem Akhtar Shamsi, is based on Companies (Managing Agency & Election of Directors) Order (President's Order 2 of 1972). The effect of such order is that all agreements and contracts entered into by a Company with its Managing Agents stand terminated forthwith and such Managing Agents are required to surrender all the properties, books of accounts and other documents of the Company of which they were Managing Agents and President's Order 2 of 1972, takes effect notwithstanding anything contained in the Companies Act, 1913, or any other law for the time being in fore‑ or any agreement, contract or Memorandum or Articles to the contrary. The contention is that as H.E.L. ceased to be the Managing Agents of Arag on the promulgation of President's Order 2 of 1972, which was so promulgated on 15‑1‑1972, the contract in suit with PICIC came to an end automatically.

21. Now, this contention overlooks the provisions of Article 6 of the said Order which permits a Managing Agent to collect proportionate remuneration for the period during which he held such office or effects the rights or liabilities of a Managing Agent acquired or incurred during the period for which the Managing Agent acted, as such. Thus, even if the argument of the learned Counsel is found to be acceptable that HEL only acted as Managing Agents for Arag in relation to the contract in Suit such determination would be of no avail since any commitments that they, as Managing Agents, may have made to third parties do not stand negatived.

22. At any event, on the facts of this case, it is clear that HEL were themselves owners of the shares in question and it was only incidental that they, ID at the relevant time, happened to be the Managing Agents of Arag. Such commitments that they made as owners of the said shares are binding on them r and P.0.2 of 1972, in no way, operated to frustrate the personal contracts of any Managing Agents. Learned Counsel's reliance on M/s. Mansukhdas Bodaram v. Hussain Brothers Ltd., PLD 1980 SC 122; which was a case of fixation of control price for sale of rapeseed and frustration of contract, apparently, due to the contract price being higher than the control price and in the circumstances, on a plea of frustration, the purchaser refusing to undertake the risk of prosecution, is not aptly made. The doctrine of frustration of contract comes into play on account of unfolding of events, subsequent to contract, under section 56 of the Contract Act, 1872, which subsequent turn of events were not in contemplation of parties. In this case what came to be frustrated following upon the legislation of I P.O. 2 of 1972 was the contract of Managing Agency between HEL and Ara but not any contract which the Managing Agents, on their own, may have entered into with third party. Thus the doctrine of frustration is, patently, not invocable, as the change brought about through promulgation of P.O. 2 of 1972, did not, in any way, effect the contract in suit.

23. The next point raised pertains to the question of mitigation of damages in the case. It is argued that under section 73 of the Contract Act, PICIC ought to have taken steps to mitigate the damages arising from breach, if any, and that since they failed to do so would absolve HEL from liability to that extent. The principle of mitigation of damages to be adhered to, by a party to contract, not in breach, is a well‑recognized principle. It involves the taking of all reasonable steps to stave off all such losses as may prudently be avoided, following upon breach. Such principle, however, has no bearing where mitigation, in the circumstances of the case cannot be resorted to or where the stage of breach has not yet been reached obliging the party, on the other side, to act in mitigation. In this case for a period of four years from the date of the altered contract which finally crystallized on 5‑3‑1970, per Exh.6/9, PICK were in no position to exercise the option of re‑sale to H.E.L. On the other hand, record show‑ that they in fact attempted to sell the shares in question in open market but were unable to do so as is reflected in the oral and documentary evidence in this case. It follows, therefore, that no relief can be allowed on account of failure to resort to mitigate the damages.

24. As observed above, while I am unable to grant interest or decree guaranteed dividends, irrespective of accruals of profit, PICIC still ‑remain entitled to claim and receive from H.E.L. the guaranteed repurchase price of the shares in question. But that is not all. In the same case namely, Suit No.375/87: Aijaz Haroon v. Inam Durrani, decided on 8‑2‑1989, I had further occasion to consider the effect of inflationary trends in most modern economics and, taking judicial notice of such economic tendencies in Pakistan, had, at the same time, held that a debtor, in such an economic malaise, is required to pay not merely the money count of the amount due from him but also to make up, at the time of satisfaction, the depreciated value in the currency which, on account of inflation, may have, in the meantime, come about. It had also been declared that, in such circumstances, a preliminary decree could be passed to assess the money equivalent, determinable in such a case therefore, decree this suit by passing a preliminary decree for the amount due namely Rs.1,105,000 as on 10‑8‑1974, the date on which option of re‑sale was exercised, and for working out its equivalent on the date of decree. Mr. A.K.M. ldrees, who was earlier appointed as Commissioner in the cited case, is appointed Commissioner in this case, as well. Tentatively, his fees is fixed at Rs.10,000, which initially, would be payable by the plaintiffs but shall count towards the costs in the suit. The commission shall be returnable within four months of the date of communication of this order. A.A./P‑106/K????????????????????????????????????????????????????????????????????????? ??????????????????????? Suit decreed.