1986 PLP 1535 (MLD)

(2‑A) Whether the plaintiff contacted the defendants for the delivery of the cotton ? If so, its effects ? (3) Whether any contract was entered into between the plaintiff and any or all of the defendants? If so, what were its terms and whether there was a breach thereof by any party hereto? If so, what should the damages be? (4) Whether the cause of action, if any, accrued within the jurisdiction of this Hon'ble Court? (5) Whether the defendant No.2 is a partner of Messrs Ittifaq Cotton Company? (6) What should the decree be?

4. The plaintiff examined 3 witnesses and produced a number of documents. The defendants did neither examine themselves nor produce any evidence, oral or documentary, in rebuttal of the claim of the plaintiff . My findings on the issues are as under:‑

5. ISSUE N0.1 This issue has not been pressed by the learned counsel or the ‑‑defendants and so it stands dropped. (6) ISSUES NOS.2, 2‑A and

3. Since these issues are inter‑related, they are dealt with together. The plaintiff has examined the broker, Rajab Ali Exh.8, who deposed in the examination‑in‑chief as under:‑ "I had acted as a broker on behalf of the buyer and sellers in respect of an agreement between the plaintiff and defendants Nos.2 and

3. I see Exh.7/2 it bears my signature as buyer's broker as well as seller's broker. The seller had given me the instructions to sell then I made offer to the buyers. All the details, terms and conditions of sale were mentioned in this document Exh.7/2. In the cross‑examination he deposed that: "The defendant i.e. Ittefaq Cotton Company had given me the instructions through Mian M. Rafi on telephone. I confirmed on telephone that goods have been sold. It is a practice in this business that the buyer gives instructions on telephone which we carry out and confirm it on telephone and normally broker's confirmation order is sent to the parties. Sometime it is not sent. In the present case, I did not send it to the sellers. Again says I may have sent it, I do not remember I had got confirmation from Mian Rafi personally by telephone." He further stated that:‑ "Besides this transaction Mian Rafi has dealt with me in such business several times but I cannot produce any record of such transaction after such a long time. It is incorrect to suggest that Mian Rafi had never instructed me on behalf of the Ittefaq Cotton Company for sale of the disputed goods." It is noticed that he was not cross‑examined by the counsel for defendant Nos. 1 and

3. The evidence of Rajab Ali finds corroboration from the evidence of Jehangir Adam, Secretary of the plaintiff company, Exh.7, wherein he stated that he was in the service of the company since 1st November, 1971 as Chief Accountant. He said that the company had entered into a contract for the purchase of 2500 bales of cotton with the defendants through broker Rajab Ali on 3‑10‑1972, who had brought the offer to the plaintiff. The contract to the effect was signed by the broker of the parties. In his deposition he gave detail of the contract as to the goods, rate, delivery and payment by opening of the L.C. on 25th November, 1972 for 1000 bales and getting it extended from time to time. The said witness produced the contract Exh.7/2, which is signed by the broker for both the parties, the bank L. C. dated 25th November, 1972 Exh.7/3 and letters of extension L. C., dated December, 14, 1972 and January 8, 1973 and February 1, 1973 as Exhs. 7/4,7/5 and 7/6, addressed to the defendants Messrs Ittefaq Cotton Company Burewala. He has also produced a number of telegrams as Exhs.7/7 to 7/11 addressed to the defendants Messrs Ittefaq Cotton Company Burewala. The first of these telegrams was sent on 9‑12‑1972. There appears to be no reply to these telegrams from the defendants. The plaintiff thereafter sent a notice, dated 24th January, 1973 (Exh.7/12) wherein plaintiff claimed a sum of Rs.92,000 calculated at the rate of Rs.8 off spot rate per maund as per contract. This was followed by another letter, dated 15th March, 1973 by the plaintiff Exh.7/14. However, on. 24th March, 1973, for the first time a reply was addressed to the plaintiff by the defendants' counsel Exh.7/16, which was replied by the plaintiff through its letter, dated 5th April, 1973 Exh.7/17. After waiting for some time for settlement of the dispute the plaintiff's director Muhammad Amin Ahmed Bawani wrote a letter presumably addressed to one of the' defendants, requesting to refer the matter to a sole arbitrator and in fact naming one Mira Bux Karam Bux a Cotton Merchant of Punjab. This request seems to have gone un‑attended by the defendants.

7. That plaintiff also examined their employee Abdul Exh.5, which is the person who went to take delivery of the goods in question to the defendants Mill. He has deposed that before 14th December, 1972 he was sent by the plaintiff to Burewala for selecting the cotton which the Burewala Mills had to supply to the plaintiff under the contract in suit. He further stated that he met the 3 partners of Messrs Ittefaq Cotton Company at Burewala. They promised to give delivery of the Cotton on 14th December, 1972. He., therefore, sent a telegram to the plaintiff to send a helper to assist him in selection of the cotton. The defendent did not give delivery of the cotton on 14th December, 1972, but promised to give delivery on 21st December, 1972. Even on that day they failed to give delivery and said that. they will give delivery according to their convenience, but on 23rd December, 1972 they refused to give delivery. He produced a number of telegrams to show as to what was happening about the delivery between him and the defendants. They are Exh.6/2 to 6/8. In the cross‑examination he denied the suggestion of the defendants that there was no contract. He, however, affirmed that he had meetings with Mian Rafi at Burewala. With all these evidence on record and particularly maintaining silence by the defendant by not even replying to the telegrams and letters written to them, except writing a letter in reply for the first time on 24th March, 1973, and particularly keeping quiet even after the opening of the letter of credit by Messrs Habib Bank Ltd. as long back as 25th November, 1972 and getting the same extended at least three times proves to the satisfaction of his Court that Rajab Ali was broker/agent of the defendants. Finding on Issue No.1 is in affirmative. Finding on Issue No.2 is in affirmative. There was a contract between the parties; which was brought about by Rajab Ali, as broker of the parties, per. trade practice and the defendants' committed breach thereof which is evident from .the oral and documentary evidence referred to above. Finding on the first part of Issue No. 3 is in affirmative etc.

8. The second limb of issue No.3 relates to damages. The agreed price was Rs.8 off spot rate of Karachi Cotton Association. It implies that whatever the rate of Karachi .Cotton Association on the delivery date the price will be less at the rate of Rs.8 per maund. So, if the plaintiff was to purchase the goods in question it will have to pay Rs.8 more than the rate of Karachi Cotton Association. It seems that on this basis the plaintiff have calculated the said damages which is borne out of. Exh.7/12 for the entired quantity of the contracted goods i.e. 2500 bales. It is evident from the contract Exh.7/2 that the plaintiff were to pay 90$ of the price of the goods in question for the entire quantity i.e. 2500 bales against the delivery by L. C . Since the deliveryi of the goods was denied to the plaintiff the question of the payment ofl 90$ did never happen. Since a letter of credit was opened for 1001 bales only, the plaintiff will be entitled to claim damages for and In account of 1000 bales only. Calculating the said damages on 1000 baled the amount of damages comes to Rs.36,800.

9. ISSUE N0.4‑‑Not pressed by the defendants counsel, so it stands dropped.

10. ISSUE N0.5‑‑P.W.2 Abdul Exh.5 has stated in the examination in‑chief that he met partners of Messrs lttefaq Cotton Company at Burewala. The name of 3 partners he gave as Mian M. Rafi, Sh. lshfaq and Mian M. Sarfraz. P.W.3 Rajab Ali Exh.8 has stated that the agreement was between the plaintiff and defendants Nos.2 and

3. In fact he has clearly stated that he received instructions from Mian M. Rafi, defendant No. 2 on telephone. The defendants have failed to produce any evidence in rebuttal by examining defendant No. Z. himself o producing certificate of registration of the firm showing the names o partners of firm Messrs Ittefaq Cotton Company at the relevant time. C The best evidence which could be produced was in possession of the defendants which they have withheld. Presumption is drawn against the defendants. The counsel for the defendants on my inquiry state at the bar that all the three defendants are real brothers. My finding on this issue is in affirmative.

11. For the reasons discussed above, the suit is decreed in the sum of Rs.46,800 with proportionate costs. A.A. Suit decreed