1988 PLP 1175 (MLD)

This is a suit for recovery of Rs.77,424.56. The case of the plaintiff is, that on 17‑6‑1966, the Project Engineer at Hydrabad for defendant, invited the quotations from the plaintiff for erection of new Grid Station at Matiari. The work involved, included supply of certain electrical material worth Rs.67,979 and installation work at cost of Rs.5,76,

000. The offer of the plaintiff was accepted by the defendant and such work‑order was given to the plaintiff, who supplied the electrical materials, and also completed, 90% of the construction work. The plaintiff was paid the entire .mount for the electrical materials supplied by them to the defendant, but was only paid 50`ro of the construction work done by them. The defendant also committed branch contract by delaying the completion of civil work, and supply materials to the plaintiff company, as a result of which, the labour and machinery of the plaintiff remained idle. The plaintiff, therefore, have filed this suit for recovery of Rs.28,800 being 50% cost of the construction work, Rs.26,679.13 being compensation for the idle time, and Rs.21,045.43 being interest of 9% per annum on the above two amounts. It may be mentioned, that name of the company, originally, to whom the contract was assigned, was Associated Electrical Industries (Pakistan) Limited. In September, 1967, the name of the said company was changed to "AEI English Electric (Pakistan) Limited". Some time, before institution of the suit, the name of the company was again changed as "Pakistan Electrical and Mechanical Construction Limited". The defendant in the written statement has denied, that present plaintiff was successor of the original company, viz. Associated Electrical Industries (Pakistan) Limited. It is further denied, that there was any contract between the original company and the defendant. The defendant claims Rs.1,00,000 for completing work left incomplete by the plaintiff. The defendant has also raised pleas, that this Court has no jurisdiction and the suit is time‑barred. On the pleadings of the parties, following consent Issues were settled. (1) Whether the plaintiffs company is successor of Associated Electrical Industries (Pakistan) Ltd., and the AEL English Electric (Pakistan) Ltd., and is entitled to their rights and liabilities? (2) Whether there was valid contract arising from the offer contained in the letter dated 12‑7‑1966 and its alleged acceptance by the Superintending Engineer of the defendants? (3) Whether the defendants committed a breach of contract as alleged? (4) Whether the defendants are liable for the sums claimed? (5) Whether the defendants are entitled to Rs.10,00,000? (6) Whether Court has jurisdiction? (7) Whether the suit is time‑barred? (8) Whether suit has not been properly instituted and is liable to be dismissed? . I have heard Mr.Kamal Mansoor Alam, learned counsel for the plaintiff, and Mr.Iqbal Kazi, learned counsel for the defendant. The. only evidence produced by the plaintiffs is, that of their employee, Ziaul Hassan Qadwai, who has produced number of documents, Exh.5/1 to 5/63. The defendants have examined no evidence at all. My findings for the reasons recorded on the above issues are as under: ISSUE NO.1 The only evidence on this issue is, that of Mr.Ziaul Hassan Oadwai, who states; he has been working with plaintiffs company since 1962. He has stated, that this suit has been filed in the name of Pakistan Electrical and Mechanical Construction Limited. He further states, that originally this company was named as Associated Electrical Industries (Pakistan) Limited, but in September, 1969, its was changed to AEL Pakistan Electric Company Limited, and then in December, 1972, the name was changed to Pakistan Electrical & Mechanical Construction Limited, but there was no change in the rights and liabilities of the company. The note of the Court shows, that this witness wanted to produce some documents in this connection, but they were disallowed as same were not filed earlier. The record further shows, that plaintiffs wanted to produce certain documents in support of the change of the names for which an application was moved under Order XIII, Rule 2, C.P.C., but the same was dismissed by this Court on 15‑12‑1975, for non prosecution. However, there is no evidence in rebuttal to this evidence on oath of the plaintiff's witness, who is an employee of the plaintiff since last 25 years and would be presumed to have knowledge of the working of the change in the names of the company. His evidence on this point is not specifically challenged in the cross‑examination, but only one question has been put to him to which he has admitted, that he was not associated with the change of the name of the company. His evidence also gets support to some extent from the documents produced by him. Exh.5/3 is a letter addressed by defendant on 6‑1Q 1966 to M/s. Associated Electrical Industries informing that their contract had been accepted. However, letter Exh.5/38 dated January, 1971 is addressed to M/s AEI English Electrical (Pakistan) Limited, certifying some of the works carried out b y them with respect to said Grid Station. This letter is signed by S.D.O. of the defendant with copies addressed to the Superintending Engineer and other officers. Exh.5/51 dated 9‑11‑1971, also mentions M/sAEI English Electrical (Pakistan) Limited and is signed by Superintending Engineer, Hyderabad for defendant. It is addressed to Executive Engineer, Nawabshah, and its subject is shown as payment of bill for Rs.16,995 to M/s. AEI English Electrical (Pakistan) Limited on account of remaining 25% cost. of materials supplied for Matiari Grid Station. These documents leave no doubt, that though contract was entered into by M/sAssociated Electrical Industries (Pakistan) Limited, but change of its name as AEI English Electrical (Pakistan) Limited was accepted and recognized by the defendant. Under the circumstances, I see no reason to disbelieve this witness, that the name of the company was further changed as Pakistan Electrical and Mechanical Construction Limited. Issue No.1, therefore, is replied in affirmative. ISSUE N0.2. It is contended by the defendant, that there was no contract between the plaintiff, which after my finding on issue No.1, would include Associated Electrical Industries (Pakistan) Limited and the defendant with regard to work in dispute. It is, however, not denied that the plaintiff had carried out work as alleged in the plaint. Admittedly, there is no written formal contract in any particular form. The word 'contract' is defined in section 10 of the Contract Act, which provides, that all agreements are contracts if they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object. Under section 2(e) of the Contract Act every promise and every set of promises forming the consideration for each other, is an agreement. By Exh.5/1 the plaintiff offered defendant to do the work at Matiari Grid Station on certain terms and conditions mentioned therein. In letter Exh.5/3, reference is made by defendant to the aforesaid letter of the plaintiff and he was informed by the defendant, that the contract for the erection of new 66 KV Grid Station for Matiari was accepted on the terms and conditions mentioned in quotation referred above and on certain further terms and conditions mentioned in Exh.5/3. Thus, the agreement between the parties was complete and it would constitute contract even when no formal contract in writing was drawn between the parties. Exh.5/2, a letter written by Superintending Engineer, Hyderabad, to the plaintiff on 1‑10‑1966, informs him, that defendant intended to award the work to the plaintiff but before the final issuing the contract the plaintiff asked to forward some drawings. This documentary evidence, read with the oral evidence of the plaintiff's witness, who states, that the plaintiff had taken contract of the said Grid Station work leaves no room for doubt, that there was contract between the parties. The issue No.2, is answered in affirmative. ISSUE N0.3. It is alleged by the plaintiff, that the defendant committed breach of contract as he committed delay in completing the civil work and in supplying the materials to the plaintiff. No evidence is produced to show, that any time limit was fixed for the defendant to complete the civil work or supply the electrical materials. In absence of such documentary evidence, it cannot be said that mere delay, as alleged, would constitute breach of contract. Issue No.3, therefore, is replied in negative. ISSUES NOS.4 and

5. It is not disputed, that the plaintiff was paid the entire charges for the materials supplied by him to the defendant. It is also admitted, that for the construction work the plaintiff has been paid 50% of the contracted price viz. Rs.28,

800. Even on plaintiff's own admission he completed only 90% work, therefore, he is not entitled to 10%0 of the contracted price of the construction work. Thus, the plaintiff can claim only Rs.52,840 for the work completed by him. Out of this amount he is admittedly paid Rs.28,800, leaving balance of Rs.23,040 payable to the plaintiff. There is no evidence produced in rebuttal of this claim of the plaintiff. The defendant, however, claims to have spent Rs.10,000 on the work, which was left incomplete by the plaintiff, but again there is no evidence in support of this contention. Admittedly, there was no contract between the parties for any payment of interest or for compensation of the idle time. I have already held, that the defendant did not commit any breach of contract. Under the circumstances, the plaintiff is not entitled to the claim for compensation of idle time or for interest. However, he is entitled to the claim of RS.23,040 for the work, that he had actually completed. My finding on issue No.4 accordingly, and on issue No.5 is in negative. ISSUES NOS. 6, 7 and

8. Not pressed, therefore, no finding is necessary. ISSUE NO.

9. Suit of the plaintiff for Rs.23,040 is decreed with proportionate costs. The suit was decreed by a short order dated 30‑9‑1987. Above are the reasons in support of the said short order. AA./P‑54/K Suit decreed.