P L D 2013 Sindh 513 (PLP)

AZIZ-UR-REHMAN, J.

The instant suit has been filed by the plaintiff for accounts and permanent injunction with following prayers:-- (a) Direct the defendants to render true and correct account of the business of Bulk Trade International and for that purpose pass a preliminary decree appointing a commissioner to take accounts of the business of Bulk Trade International; (b) Pass on final decree directing the defendant to pay to the plaintiff 10% of the profits of Bulk Trade International up to 30-9-1999 and to indemnify the plaintiff for payments made and to be made to the creditors of Bulk Trade International; (c) Permanently restrain the defendant No. 1 from pursuing extra judicial remedies against the plaintiff in respect of any matter relating to the business of Bulk Trade International or any other business jointly conducted by the plaintiff and the defendant No.1; (d) Grant costs of the suit; and (e) Grant such other relief as may be appropriate in the facts and circumstances of the case.

2. Briefly the facts leading to the filing of the suit are:

3. Since the year 1992 until 1997 the plaintiff was residing and working in Dubai. By profession per assertion the plaintiff is a Captain in the merchant Navy. Per plaintiff's assertion lastly he was working as General Manager of Barkat Shipping Services, a Dubai based company engaged in the business of ship management and chartering. The salary of the plaintiff at the relevant time was Dirhams 10,000.00 per month, (equivalent to Pak Rs.125,000 per month) and was also availing facilities of free accommodation and a car. Per averments upon introduction some time in May or June, 1997 when the plaintiff was in Dubai, the defendant while recognizing the expertise and contacts of the plaintiff in the business of marine shipping proposed a plan to the plaintiff for directly entering into the field of chartering and hiring of shipping vessels.

4. Eventually, per wish and desire of the defendant it was agreed between the parties that the plaintiff would move from Dubai to Pakistan and in turn the defendant would set up a business of ship charterers and shipping agents. Accordingly, the operational part of the planned business was agreed to be handled by the plaintiff however, the financial and accounting aspect of the business was to be looked after by the defendant.

5. The capital required for the partnership was about US$ 2,00,000 (US Dollars two lacs only) and per agreed terms it was to be invested by the defendant alone. Upon getting the business secured 10% of all profits as agreed was to be paid to the plaintiff. The plaintiff being a Pakistani citizen, formal 'partnership' under circumstances, was deemed as inadvisable.

6. Plaintiff as agreed, was to be paid monthly salary net of tax of Rs.25,000 (Rupees twenty five thousand only) plus house rent and all amenities, a car and patrol from the shipping agency. The basic salary per averments after the plaintiff's joining was increased from Rs.25,000 to Rs.70,000 per month after a short span of time/few months on account of plaintiff's valuable performances.

7. The business of ship charterers so set-up, was started in the name and style of 'Bulk Trade. International'. The bank account of the business was opened in ANZ Grindlays Bank, St. James Street, London. The defendant being a British National, the account of the aforesaid business thus was operated under signatures of the plaintiff.

8. All the operational work, such as chartering, hiring and sub-chartering/taking cargo was done by the plaintiff whereas the finances and books of accounts were kept and maintained by the defendant from an office at 403, Marine Point, Clifton, Block 9, Karachi.

9. According to the plaintiff's averments, the business of 'Bulk Trade International' had commenced during the month of December, 1997. Four vessels, namely Rubin Lotus, Tetien, New Alliance and Mary's were chartered while the plaintiff was still in Dubai. The plaintiff thereafter came to Pakistan in April, 1998. The business, per averments, continued to prosper and a number of other vessels were also chartered including m.v. Laxmi I, m.v. II, m.v. Oluja, m.v. Pan Queen, m.v. Tian Shan Hai, m.v. Wadi Halfa, m.v. Pisces Explorer, m.v. Norita, m.v. Golden Farmer, m.v. Joshua, m.v. Kyernatis, m.v. Pisces Planter and others.

10. Per assertion, the defendant in one of his business ventures, viz, 'trading in nitro phosphate' suffered huge losses. For and to cover up such losses the defendant besides drawing huge sums of money out of the business of 'Bulk Trade International' also withdrew entire invested capital, profits made and advances received.

11. The defendant, upon confronting the situation of default vis-a-vis creditors and the plaintiffs due profits, finally in September, 1999 agreed to dis-associate himself from the ship chartering business of 'Bulk Trade International'. It was also agreed during negotiations that the defendant would compensate the losses suffered by the plaintiff and also pay the plaintiff his due share of profit earned from the business of 'Bulk Trade International ' up to September, 1999.

12. Accordingly thereafter per defendant's instructions and promises necessary steps were taken for settling the outstanding issues with the creditors. In efforts so made some of the issues were settled with the creditors' of 'Bulk Trade International' while some other still remained to be settled.

13. Per assertions, on 22-2-2000 the plaintiff received from 'Ocean Marine Shipping', a buyer of vessel 'Dubai Gold', a sum of US $90,000[US Dollars ninety thousand only]. On receipt, the said amount was listed towards plaintiffs' then tentative outstanding share of the profits from the business of 'Bulk Trade International [i.e. during the period of the association of the plaintiff with the defendant] and the remaining towards the liabilities of the creditors of 'Bulk Trade International' which the plaintiff had settled in accordance with the defendants' instructions and authorization. Per plaintiffs' own knowledge still a sum of Rs.US $ 51,281 is outstanding and payable to the creditors of 'Bulk Trade International'. Per plaintiffs' assertions, the defendant has not paid the actual due share of the profits of 'Bulk Trade International'.

14. The cause of action per averments made in the plaint, has arisen firstly in October, 1999 when the business of 'Bulk Trade International' was dis-continued and also on other dates/occasions as mentioned in para 13 of the plaint. Per averments, the defendant instead of making payment of money owed to the plaintiff and to the creditors has started his using of influence with law enforcement agencies for harassing the plaintiff. The plaintiff thus constrained to file the instant suit inter alia for rendition of accounts of business 'Bulk Trade International'.

15. Along with plaint, an application under Order XXXIX, Rules 1 and 2 C.P.C. bearing C.M.A. No. 6758 of 2000 was also filed by the plaintiff with the following prayers:-- "It is respectfully prayed that pending hearing of the above suit, this Hon'ble Court may be pleased to restrain the defendants from threatening or further harassing the plaintiff or from pursuing any extra judicial proceedings against the plaintiff in respect of any business dealings between the plaintiff and the defendants. As the harassment is continuing, ad-interim orders in like terms are humbly solicited."

16. The above application (C.M.A. No. 6758 of 2000) when came up before the court on 16-8-2000 thereon the following order was passed:-- Granted.

2. Notice to defendants for 29-8-2000. In the interim period the defendants shall not take any coercive action against the plaintiff nor shall he cause harassment of impartment to the plaintiff specially in pursuance of any steps that the plaintiff wishes to take to resolve the issue between him and the defendants."

17. Thereafter, summons were issued to the defendant and returned duly served. The defendant, later on filed his written statement wherein inter alia the claim and assertions made in the plaint were denied. Per averments, the plaintiff was introduced to the defendant as a willing and efficient worker who per defendant's assertion was in need of job. The plaintiff on approaching, was interviewed and thereafter per defendants' version was appointed in his company.

18. In the business operation of shipping, per averments, the plaintiff in addition to remuneration was given an incentive of 10% [ten percent] of the profits to be earned on operation of the ship M.V. Dubai Gold which in fact was purchased by the defendant as a partner with the foreigner. No partnership was agreed or reduced into writing between the plaintiff and defendant at all.

19. The plaintiff, per defendant's assertion mis-managed the business operation of ship and did not earn any profit. On the contrary, due to plaintiff's negligence, the defendant sustained losses. Per averments, the defendant was kept on false hopes by the plaintiff that he will be able to recover the outstanding amounts. Due to gross negligence of the plaintiff, per averments in written statement no profit was earned. Rather huge losses were sustained by the defendant. The defendant under circumstances, had constrained to sell the ship M.V. 'Dubai Gold'.

20. The amounts received by the plaintiff, in fact are the money of defendant. Per averments, the plaintiff was only authorized to collect and re-invest the same. The plaintiff as being an incharge of the operation, accounts of the ships operation business per defendant's version has never rendered any true account. The plaintiff, per defendant's assertions has no concern whatsoever as far as the 'business affairs' of defendant are concerned.

21. The plaintiff, was merely an employee of the defendant and does nothing with the business transactions made by the defendant. Per averments in the written statement the plaintiff has pocketed an amount of US $90,000.00 (US Dollars Ninety thousand only). The above suit, per defendant's assertion is motivated and aimed to halt/stop the plaintiff from recovery of the amount and possession of the company's assets from the plaintiffs possession.

22. The parties to the suit went on trial and out of the pleadings on 14-5-2001 the following issues were settled by the court:-- (i) Whether the plaintiff was engaged by the defendant to render services to Bulk Trade International and if so, on what terms and conditions? (ii) What amount if any is payable by the defendant to the plaintiff? (iii) Whether the defendant pursued extra judicial remedies to harass the plaintiff? (iv) What should the decree be?

23. After framing of issues, on 21-9-2010 Commissioner was appointed to record 'evidence of the parties'. Thereafter learned Commissioner submitted his report dated 22-1-2010.

24. On 5-4-2011 when the matter came-up before the court the following order was passed:-- "The commissioner has filed his report dated 22-1-2010, in terms of which it appears that examination-in-chief of the plaintiff has been recorded but when the matter was adjourned for cross-examination of the witness, according to commissioner no one appeared on behalf of defendant on 21-12-2010. The commissioner is directed to give one final opportunity to the defendant to cross-examine the witness of the plaintiff by giving appropriate notice to the parties. If neither the defendant nor learned counsel for defendant appear on that date the right of the defendant to cross-examine the witness may be closed."

25. In terms of order dated 5-4-2011 the matter was sent back to the learned Commissioner for affording one more final opportunity to the defendant. Thereafter the learned Commissioner after complying with directions of this court in terms of order passed on 5-4-2011 subinitted his detailed report dated 7-3-2011 [Available at page 73 of the court file] which was subsequently taken on record vide order dated 5-6-2011. Being relevant order dated 5-6-2011 is reproduced as under:-- "Learned Commissioner had submitted his report dated 22-1-2010 and had informed this Court that the matter was adjourned for cross-examination of the plaintiff's witness and none was appeared before the learned Commissioner on behalf of the defendant. This court directed the learned Commissioner to give final opportunity to the defendant to cross-examine the plaintiff's witness by giving a proper notice to the parties and if none appeared on behalf of the defendant on the said date fixed by this court i.e., 21-12-2010, the right of the defendant to cross-examine the plaintiffs witness may be closed. Learned Commissioner in his report dated 7-6-2011 submitted that in compliance of the order of this court dated 5-4-2011, learned Commissioner issued notice to the defendant and his counsel for 18-5-2011 and 24-5-2011 through UMS. Notice and the postal receipt issued by the learned Commissioner to the defendant are enclosed with his report. None appeared on behalf of the defendant on the date fixed by the learned Commissioner for cross-examination of the plaintiff's witness and the learned Commissioner under the directions of this court closed the side of the defendant to cross-examine the plaintiff's witness and submitted his report dated 4-6-2011, which is taken on record. Office is directed to fix the matter for final arguments."

26. Before the learned Commissioner the plaintiff (P.W.1) filed his 'affidavit-in-evidence' on 15-12-2010 and his 'examination-in-chief was recorded on 15-12-2010. The plaintiff in his 'deposition' produced his 'affidavit-in-evidence' as Exh.'PW-1' and other documents as Exh.'P.W.-1/1' to Exh.'P.W.1/9'.

27. On 13-3-2013 when the matter came up before the court, I heard Mr. Adnan Iqbal Chaudhry the learned counsel for the plaintiff and with his able assistance scanned the available record.

28. Mr. Adnan Chaudhry learned counsel for the plaintiff while arguing the case submitted that the plaintiff being a Captain in the Merchant Navy, was working in Dubai in the business of ship management and chartering. Per learned counsel, around May or June, 1997 the defendant in recognition of the plaintiff's expertise and contacts in the field of ship chartering made a proposal to the plaintiff for starting similar business in Pakistan which was agreed by the plaintiff in pursuance and consequence of negotiations held between the parties. Per learned counsel, arrangement/terms and conditions agreed between parties are oral, however, the gist /outcome thereof per plaintiff's case is as follows:-- (i) The defendant per agreed terms invested capital to start the business of ship charter under the name and style of 'Bulk Trade International'. The operational part of such business was however, handled by the plaintiff, while the financial and accounting side per agreed terms was handled by the defendant. The plaintiff as agreed was entitled to 10% of all profits earned out of such business being carried on in the name of 'Bulk Trade International'. (ii) Till the business of 'Bulk Trade International' took off the plaintiff was paid salary and perks from the other business concern of the defendant, which was that of shipping agents, incorporated as 'Bulk Trade (Pvt.) Ltd.' (iii) The ship charter business of 'Bulk Trade International' ultimately commenced in December, 1997 and due to the plaintiffs un-tired efforts, the business smoothly and continuously prospered. (iv) Other business of the defendant suffered losses and in order to cover-up such losses, the defendant started drawing huge sums from the business of 'Bulk Trade International'.

29. The plaintiff protested such withdrawals because of:-- (i) Due to such withdrawals the plaintiff was deprived of his agreed 10% share of profits, (ii) The creditors who had extended credits to 'Bulk Trade International' on the reputation of the plaintiff remained unpaid/not being paid by defendant.

30. Mr. Adnan Iqbal Chaudhry learned counsel for the plaintiff further contended that by the end of September, 1999 the plaintiff and defendant under the aforesaid scenario, decided to work independently.

31. Per learned counsel with regard to the business of 'Bulk Trade International', however, it was further agreed that the plaintiff would use his 'contacts' and 'good offices' to settle outstanding issues with the creditors of 'Bulk Trade International' for which the defendant, per learned counsel, would remain liable to the plaintiff. The defendant's learned counsel vehemently argued is also liable to pay the plaintiff his remaining due share out of profits of 'Bulk Trade International' earned up to September, 1999.

32. Mr. Adnan Iqbal Chaudhry, learned counsel for the plaintiff further urged that when the plaintiff confronted the defendant for the money owed to the plaintiff and to the creditors, the defendant instead of paying the outstanding liabilities started using of his influence with law enforcement agencies for harassing the plaintiff. Per learned counsel, the amounts still owed and payable to the creditors approximately are as follows:-- LIST OF CREDITORS

1. FID SHIP DESPATCH US $ 39186

2. KYUERNATIS US $ 1200

3. SHIP ROUTING US $ 1215

4. PISCESPLANTER US $ 1235

5. GOLDEN FARMER US $ 2500

6. BERY MARITIME US $ 345

7. SPS BROKERAGE COMMISSION US $ 5600

8. TOTAL US $ 51281

33. Mr. Adnan Chaudhry, learned counsel for the plaintiff further submitted that before the learned Commissioner plaintiff (P.W.1) filed his 'affidavit-in-evidence' along with copies of documentary evidence available with the plaintiff. Per learned counsel since the 'originals of documents' are/were lying in possession of defendant, therefore, in view of the requirement of law a notice under Order XII, Rule 8, C.P.C. was served upon defendant calling upon him to produce originals of documents mentioned in the legal notice dated 9-12-2010. Such notice and postal receipt have already been produced in plaintiff's evidence as Exh.P.W.1/2 and Exh.P.W.1/3 respectively.

34. The defendant, per learned counsel besides avoiding 'cross-examination' of the plaintiff (P.W.1) has also failed and/or ignored to lead any evidence in his defence. Lastly, Mr. Adnan Chaudhry, learned counsel for the plaintiff forcefully submitted that in absence of any rebuttal/evidence from the defendant's side the plaintiff's suit deserves to be decreed as prayed.

35. In support of his contention the learned counsel for the plaintiff has placed reliance on the following case-laws:-- (a) Friends Engineering Corporation The Mall Lahore v. Government of Punjab and 4 others (1991 SCMR 2324) (b) Purushotham Haridas and others v. Messrs Amruth Ghee Co. Ltd., Guntur and others (AIR 1961 Andhra Pradesh 143 (V 48 C 41))

36. I have heard the learned counsel for the plaintiff and my issue-wise finding is as follows:--

37. Issue No. 1: From pleadings and evidence led by the plaintiff, it appears that the ship charter business referred to the instant suit is called 'Bulk Trade International' while the 'shipping agent business' is called 'Bulk Trade (Pvt.) Ltd'. The parties evidently are not at issue with regards to 'Bulk Trade (Pvt.) Ltd'. The issue No.1 relates only to 'Bulk Trade International'. The onus of proof of this issue lies on the plaintiff's shoulder. From the pleadings and evidence led by the plaintiff it is manifestly clear that it is not the case of the plaintiff that 'Bulk Trade International' was a partnership firm of the plaintiff and the defendant. Rather the plaintiff's case is that he was engaged by the defendant for and to provide services to the defendants' business named and styled as 'Bulk Trade International'. For such services of the plaintiff, as compensation the defendant had promised 10% from the profits of business of 'Bulk Trade International'.

38. Besides positive assertions in the written statement, the averments made and evidence led by the plaintiff to the effect that the plaintiff was engaged to provide services to the ship charter business styled as 'Bulk Trade International' at 10% promised compensation out of the total profits of business of 'Bulk Trade International' have gone un-rebutted. The defendant though admits that plaintiff was being an employee of 'Bulk Trade (Pvt.) Ltd'., and not of 'Bulk Trade International' but he asserts that plaintiff is not entitled to any profit from the business of ship chartering called 'Bulk Trade International'. Regarding such assertions and support thereof, however the defendant has failed to either cross-examine the plaintiff (P.W.1) and/or otherwise lead any evidence in support of his stand. As far as the terms and conditions agreed between the parties are concerned from evidence led by the plaintiff it is established position that the operational part of 'Bulk Trade International' was handled by the plaintiff and the financial and accounting side of business was handled by the defendant. Of course, averments made by the plaintiff to this effect have also gone un-rebutted.

39. Out of the net profits of the ship chartering business of 'Bulk Trade International' evidently, the plaintiff's promised share is 10%. 'Bulk Trade International', no doubt, is a sole proprietorship of the defendant. Being a British citizen the defendant was not permitted to run the shipping business in Karachi. Per wish, therefore, the plaintiff provided services to the business of 'Bulk Trade International' until separation of ways in September, 1999. The use of plaintiff's 'contacts' and 'good offices' for settling the up-front disputes with creditors of 'Bulk Trade International' and resolution thereof to some extent is not disputed. The payment of a sum of DHS AED 3,30,3000 [equal to US$ 92,5491.00] to the plaintiff is not a disputed fact which fact itself is a prima facie proof of plaintiff service, provided to 'Bulk Trade International'. For and to establish the relationship and arrangements reached between the parties in respect of business of 'Bulk Trade International', the plaintiff in evidence has produced a document dated 23-2-2000 [Exh. P.W.1/5] from which inter alia, US $ 45,000.00 seems as appropriated towards plaintiff's claim of 10% chartering profit and the remaining US $ 47549.00 against paid amounts to the creditors of 'Bulk Trade International' by the plaintiff.

40. In the written statement the defendant, owns the liability of the creditors of 'Bulk Trade International' as his own responsibility. Nonetheless, the liability adjusted by the plaintiff is not disputed/denied.

41. Apart from the above the contents of paras 4 to 7, 9 and 10 of the plaintiff's 'affidavit-in-evidence' have gone un-challenged. Exh.'P.W.1/1', Exh. P.W.1/5' to Exh.'P.W.1/8' indeed establish of providing of services by the plaintiff to the business of 'Bulk Trade International' on the agreed 10% share out of the total profits of 'Bulk Trade International'.

42. Despite opportunities, neither the defendant 'cross-examined' the plaintiff (P.W.1) nor did he lead any evidence. The contention/assertions and the evidence led by the plaintiff are thus deemed to be admitted by the defendant. The general denials on the part of defendant in his written statement is of no evidentiary value. The averments made in the written statement cannot be treated as evidence because the defendant has failed to come forward to examine himself. Only the admissions made directly or indirectly in the plaint and/or in the written statement can be used and/or relied upon. It is a fundamental principle of law that if, a material fact is 'deposed' in 'examination-in-chief and not rebutted in 'cross-examination' then the same is deemed to be admitted. In this regard reliance can be placed on the following cases: (a) Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and others (PLD 1975 Karachi 598 Placitum 'A') wherein it was held as follows:- "7 ... ...As a rule pleadings are not evidence by themselves; the statements made by defendant in the written statement, could be used as evidence in cases where they amount to admission of the plaintiff's pleas. These admissions could be direct or even by implication, and in both cases are proof in themselves." (b) Muhammad Noor Alam v. Zair Hussain and 3 others [Reported in 1988 MLD 1122 Placitum A], following rule was laid down by a Division Bench of this Court: "5 ..... A written statement contains averments of a party which are to be proved through cogent evidence. If a party does not produce any evidence in support of the contents of its written statement, in the absence of any admission on the part of a plaintiff the averments contained in the written statement cannot be treated as evidence." (c) Fateh Muhammad through L.Rs. and others v. Fida Hussain through LRs. [Reported in 2007 CLC 1885 Placita D and E], wherein it was observed as below: "9 ......Further the appellant has not entered in the witness box to support the assertions made in the written statement in the instant case. A written statement, where the defendant does not make himself available for cross-examination, loses its force as an authentic piece of evidence, it cannot be acted upon and used as substantive piece of evidence. While holding so, I am fortified by the judgment in the case of Bakhat Bedar v. Naik Muhammad 2004 MLD

341. Further, in the case of Muhammad Rafiq and others v. Muhammad Ali 2004 SCMR 704, the apex court has observed that once an admission is made in the written statement, no issue is required to be struck nor any further proof is required." (d) Hakimuddin v. Faiz Bux (Reported in 2007 SCMR 874 Placita 'A', 'B', C' & 'D'). Relevant extract therefrom reads as under:-- "5...... It is an admitted fact that respondent did not appear before the trial court to prove the content of the plaint. It is established law that pleading of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in court or admitted by the other party. The respondent No. 1 failed to prove the factum of his superior right of preemption, therefore, trial court as well as learned High Court erred in law, to decree the suit of the respondent. It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. See MUHAMMAD SAJJAD HUSSAIN's case 1991 SCMR 703 and MUHAMMAD SIDDIQUE'S case 2001 SCMR 1443. It is a settled law that written statement/plaint is not a substantive evidence". (e) Muhammad Yasin v. Shabbir Ahmed (Reported in 1985 CLC 2111 Placitum 'A') which reads as under:-- ".........Absence of cross-examination on this point clearly shows that assertion made by the landlord is not called in question by the tenant. In support of this view reliance is placed by the learned counsel on Qasim and others v. State PLD 1967 Kar.

233. Although this was a criminal case but the principle laid down in the reported case is that under sections 137 and 138 of the Evidence Act if there is no cross-examination on the fact deposed in the Examination-in-Chief the presumption is that evidence is deemed to have been accepted by the party against whom it was given. The reliance is also placed on another case Muhammad Mujibur Rehman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537 in which the principle stated in the above mentioned case is reiterated." In view of the above I hold that the plaintiff was engaged by the defendant to render services to 'Bulk Trade International' and his agreed compensation was 10% out of the total earned profits of the business of 'Bulk Trade International'. What is the total earned profit of the business of the 'Bulk Trade International' is however, yet to be determined, of course, after taking proper accounts of the business of 'Bulk Trade International'. Issue No.1 is answered accordingly.

43. Issue No. 2: For determination of what the actual amount is due and payable to the plaintiff, Indeed in the first place it is necessary to find out the actual amount of profits earned by and through the business of 'Bulk Trade International'. For and regarding this purpose unless the relevant record of the business/dealings of 'Bulk Trade International' is scrutinized the actual amount due to the plaintiff i.e. 10% of the total earned profits of the 'Bulk Trade International' cannot be ascertained in view of the 'un-certain' actual amounts earned by 'Bulk Trade International'. In the present case since it is the plaintiff who only led evidence vis-a-vis his 10% share, which evidence to this effect has gone unchallenged. But the problem which still remains is the determination of the actual profits earned by the defendant during the period from December, 1997 to September, 1999. For such determination a preliminary decree in my view needs to be passed against the defendant for accounts. Needless to say that rendering of accounts under circumstances of the instant case is the liability of the defendant who is in complete control of the Books of Accounts, Banks' Statement, Cheque Books, Vouchers etc. etc of the business dealings of the 'Bulk Trade International'.

44. Per plaintiffs evidence 17 vessels have been chartered/hired by the plaintiff for the business of 'Bulk Trade International'. Regarding these 17 vessels, per evidence, the tentatively estimated amount payable by the defendant is US$ 102,

000. Such evidence is in para 13 of the plaintiff s 'affidavit-in-evidence' which has gone un-rebutted. What exact amount is payable by the defendant to plaintiff nonetheless stills needs to be worked out from the total earned profits of the business of 'Bulk Trade International' for the period from December, 1997 to September, 1999, during which period the plaintiff remained in association of the defendant and rendered his services at agreed/promised share of 10% out of the total earned profits of business/dealings of 'Bulk Trade International'.

45. Herein it is worth to note that the relief of account is an equitable relief and always available to party, if such party besides entitled for accounts has not been given such accounts as also is the case in hand.

46. For easy reference and for better understanding, it would be appropriate at this stage to reproduce Order XX Rule 16, C.P.C. as below:-- "

16. Decree in suit for account between principal and agent.

In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit."

47. Bare perusal of Order XX Rule 16, C.P.C. would show that it is not restricted only to 'suit for accounts' between the principal and agent but it also covers all other suits for accounts where it is found necessary to ascertain the amount of money due to or from any party to other party. In such eventuality a 'preliminary decree' is necessarily passed before a final decree. No preliminary decree, however, needs to be passed where the 'liability of account' is not established or otherwise, necessary scrutiny of the accounts are not required. For and regarding this aspect of the matter reliance can be placed on the following case laws:-- (a) Ram Lal Kapur and Sons v. Asian Commercial Assurance Co. Ltd., (Reported in AIR 1933 Lahore 483). The relevant extracts on page 484 read as follows:- ... ....On p. 507 of Katiar 's treatise on the Law of Agency in British India, 1928 edition, it is remarked that it has been held in England that where the accounts between a principal and agent are of so complicated nature that they cannot be satisfactorily disposed of in an action at law an agent, in such a case, has a right to have an account taken in a court of Equity. Such a right is of a very limited nature and does not follow from the fact that the principal has also such right, as the right of the latter to an account from his agent is generally found on the fiduciary character of the agency while the right of the agent has no such equitable basis. Where an agent is paid a salary or commission in proportion to the profits made on the business done, the question, whether he is entitled to have an account taken, depends on whether or not the accounts are of too intricate or complicated a nature to be properly and conveniently gone into in the proceedings in an ordinary suit. In the present case the plaintiffs were to be remunerated by a commission calculated on the premium paid on all policies effected or introduced through the plaintiffs. While no doubt the plaintiffs are aware of all policies effected or introduced through them they cannot certainly know which of these policies have lapsed, matured or been forfeited. Consequently it would not be possible for them to calculate what commission would be payable to them on policies effected through or introduced by them as agents of the Insurance Company. It was contended on behalf of the defendants-respondents that the plaintiffs' could have requested the Insurance Company to furnish them with a statement of the policies in force and claimed the amount of commission due to them as a specific sum, but in view of the litigation that had already ensued between the parties, I do not think that the plaintiffs would have been supplied with the information in question. In my opinion therefore the circumstances in the present case entitle the plaintiffs to call on the defendants for rendition of accounts as this is the only relief which will enable the plaintiffs to satisfactorily assert their rights." (b) Messrs Friend Engineering Corporation, The Mall, Lahore v. Government of Punjab and 4 others (Reported in 1991 SCMR 2324). The relevant paras therefrom read as follows:-- "

5. It is to be remembered that liability to render accounts is the foundation for maintainability of a suit for rendition of accounts. Such a liability exists when there is fiduciary relationship between the parties as in the case of partners of firm, guardian and ward, principal and agent, trustee and beneficiary of the trust. These instances are only enumerative and under Order XX, Rule 16, C.P.C. Court is empowered to pass a preliminary decree where it feels necessary that ascertain the amount due to one party from the other side, the accounts should be taken. But, in the instant case, the relationship between the parties is undoubtedly contractual. In such a case, the respondents are not under any obligation render accounts to the appellant. The work done, the material supplied to department and the payments received from them by the appellant were with his knowledge. It was, therefore, for him to have ascertained the amount due him and filed a money suit for recovery thereof.

6. A question arose, when the suit for rendition of accounts was not maintainable, whether the ex parte preliminary decree was void, without jurisdiction and thus, could be ignored by the High Court in appeal from the final decree. Our answer is in the negative. By jurisdiction is meant a power to hear and decide legal controversy between the parties, to pronounce judgment and execute the same. It cannot be said that the learned Civil Judge who was seized the suit and passed a preliminary decree was not possessed of such power. If the order made by him is contrary to law that would not render it as one with jurisdiction. It is correct that in the written statement there was an objection to the form of the suit. It is to be noticed that such an objection does not involve consideration of public policy. It is well settled that where public policy is not involved any party may waive of the benefit of the law made for his advantage. The respondents' absence from the trial court and their consequential failure to defend the suit would have the effect of waiving of the objection. What would have been the position of the decree, had there been no objection to the form of the suit by the respondents? Could such a decree be treated as void and a nullity? Where a party can waive of a plea, any decision of the court in disregard of such a plea, cannot involve a jurisdictional issue, for jurisdiction, is not dependent on the will of the parties to the suit." (c) Purushotham Haridas and others v. Messrs Amruth Ghee Co., Ltd., Guntur and others (AIR 1961 Andhra Pradesh 143 (V 48 C 41)), which reads as under:- "(61) Coming now to the last contention, there is no rule or principle of law which requires a court to pass a preliminary decree invariably in every suit for accounts. Normally, a preliminary decree is granted in such suits because it would be necessary to go into the accounts and a court may think it advisable to appoint a Commissioner to ascertain the state of account between the parties. But that is not a rigid rule which should be followed in every case irrespective of its circumstances. In simple cases which do not involve much scrutiny of accounts, a court is not bound to pass a preliminary decree but could straightway give a decree for a certain amount if the material on record enables it to do so. The present case falls under this category. The statement of accounts prepared by the plaintiff with reference to the account books of P.Ws. 1 to 5 which could not be impugned clearly showed what sums were paid to the 4th defendant in regard to the ghee tins entrusted to the latter by the plaintiff and sold by P.Ws. 1 to 5 as commission agents. The defendants are made liable only for the sums which were actually paid by P.Ws. 1 to 5 to them after deducting the commission payable to them and other incidental charges out of the sale price of the ghee tins. The defendants have not produced their own accounts presenting a conflicting version in regard to the sale-prices. They have no case as to the rates at which ghee tins in question were disposed of different from that revealed in the evidence of the witnesses and their account books. So, it was not a case where different versions had to be considered with different sets of account books, but a case which could be easily decided in the light of the material placed in the shape of the account books and the oral evidence of dis-interested witnesses like P.Ws. 1 to

5. When the accounts could be ascertained and settled without passing a preliminary decree and resorting to the procedure necessitated thereby, a court is at liberty and also well advised in giving a decree to the plaintiff. Even before us, the defendants could not show in what respects the judgment is wrong or what allowable items were disallowed or what was the defect in the statements furnished by the plaintiff prepared in the light of accounts of P.Ws. 1 to 5 or in what respects the account books were unacceptable. To repeat it, the defendants have not chosen to file their account books and could not also repudiate the various payments made to the 4th defendant in the account books of P.Ws. 1 to 5. (62) The trial court remarked that there was no need to pass a preliminary decree and that no purpose will be served by passing a preliminary decree by referring the matter to the Commissioner for ascertainment of the amount due to the plaintiff as it was not the case of defendants 3 and 4 that they had got any account books which will show the amounts actually realized by them." (d) Pandurang and others v. Gunwand Rao and others [AIR 1928 Nagpur 299 (300)J, which reads as under:-- ..........It is said that O. 20, R.16, Civil P.C., makes a preliminary decree mandatory. The procedure adopted may be wrong but no body has been prejudiced by it. Issues have been framed and evidence taken up on the incomings and outgoings ad a decision arrived at. I reject this ground. As evidence has been taken on both sides, there is no force in the second ground of the memorandum of appeal."

48. In view of the above, plaintiff is tentatively entitled for an amount of US$ 102,000 as his share in profits, however, this quantum of amount is 'subject to passing of a final decree' to be passed later on after taking of proper accounts from the parties to the suit in consequence of the preliminary decree being passed hereinafter. Issue No.2 answered accordingly.

49. Issue No.3: With regard to this issue, the plaintiffs averments made in para 12 of the plaint are in following words:-- " ..The defendant became extremely hostile and threatened the plaintiff with dire consequences. The defendant represented to the plaintiff that he would use his contact and influence to make the life miserable for the plaintiff. These threats did not turn to be hollow and in that the defendant started using his contents with law enforcing agencies to harass the plaintiff".

50. Apart from the above the relevant evidence in para 12 of the 'affidavit-in-evidence' (P.W.1) of the plaintiff is as under:-- "In the first week of July, 2001, I pressed the defendant to 'pay off' his creditors as my reputation was at stake. He became very belligerent and threatened to fix me by using his influence in the shipping agency business. He sent the police officials in plain clothes to warn and harass me and threatened to implicate me in cases if I did not back of from the pressing him to pay the creditors of 'Bulk Trade International'".

51. The above assertions made in the plaint and evidence led by the plaintiff have/has gone un-rebutted/unchallenged, therefore, the presumption is that the evidence of the plaintiff besides being true and correct is deemed to be accepted by the defendant. In view of this position, Issue No.3 answered in affirmative.

52. Issue No.4: In view of the foregoing discussion, case-laws referred to hereinabove and after taking into consideration the arguments of the learned counsel for the plaintiff, I am of the considered opinion that besides necessary it is a fit and proper case notwithstanding recording of plaintiff's evidence to pass a preliminary decree against the defendant under Order XX, Rule 16, C.P.C. which is hereby passed by appointing Nazir of this court as a commissioner with all necessary ancillary powers to call for the books and records of 'Bulk Trade International' for taking accounts and ascertaining/determination of the actual amount due to the plaintiff 'out of the total actual profits' earned by/through the business of 'Bulk Trade International' during the period from December, 1997 to November, 1999 of which the plaintiffs agreed share upon determination of the actual profits of 'Bulk Trade International' would be 10% minus the amounts already received/adjusted by the plaintiff towards his share for and on account of his rendering services vis-a-vis 'Bulk Trade International' during December, 1997 to November, 1999.

53. Fee of the Nazir is tentatively fixed at Rs.35000 (Thirty Five thousand only) to be paid by the plaintiff in the first instance, however, the fee paid to Nazir shall be deemed and treated as cost of the proceedings. Nazir is given period of six months from the date of receipt of copy hereof for submitting his report to the court. Suit is decreed in the above terms. SAK/W-5/K Suit decreed.