2007 PLP 2174 (YLR)

KHILJI ARIF HUSSAIN, J.--Brief facts for decreeing the suit are that the defendant No.1 appointed by the plaintiff as its distributor for the sale of blended and packeted tea with effect from 6th of August 1992 for the area of Sargodha-I territory. According to the memo. of plaint, the defendant No.2 gave his guarantee in the sum of Rs.15,00,000 for the due performance of agreement by the defendant No.1 and executed a bond in this regard. The plaintiff alleged that he supplied the goods of Rs.48,88,133.48 to the defendant No.1 who failed to make payment of the entire value of the supplies. On 20-9-1998 defendant No.1 admitted that a sum of Rs.45,72,104.40 is outstanding against him. The defendant No.1 made part payment of outstanding dues upto January, 1994 and a sum of Rs.39,40,306.70 is still outstanding against the defendant No.1. That defendant No.1 despite service failed to appear and the defendant No.2 filed written statement and denied his liability and as regard bond it was alleged security bond has never been executed by defendant No.2 and his signature on the said document is forged and fabricated. On the basis of pleadings between the parties following issues were framed: (1) Whether plaintiff appointed the defendant No.1 as its distributor for the area of Sargodha-I Territory? (2) Whether the Defendant No.2 executed Security Bond for a sum of Rs.1,500,000 and guaranteed performance of contract by defendant No.2`? (3) Whether the plaintiff supplied tea stocks valuing Rs.4,888,133.43 to the defendant No.1? (4) Whether the defendant No.1 failed to pay a sum of Rs.3,940,806.70 to the plaintiff? (5) Whether the defendant No.1 acknowledged liability to pay Rs.45,72,104.40? (6) What relief the parties are entitled to? On behalf of the plaintiff one Asma Tasleem filed affidavit-in-evidence and produced various documents including Power of Attorney as Exh.7 to Exh.14. The witness was cross-examined by the learned Advocate for defendant No.2. The defendant No.2 has also filed his affidavit- in-evidence as Exh.D.W.1/2 and was cross-examined by the plaintiff. The plaintiff also examined Assistant Director of NADRA as his witness. Heard Mr. Naveedul Haq, learned Advocate for the plaintiff, Mr. Riazuddin, learned Advocate for the defendant No.2, perused the record and my findings on the issues are as under:-- ISSUES No.1. The plaintiff has placed on record a letter dated 6th August, 1992 Exh.8, along with his affidavit-in -evidence. From the perusal of record it appears that the defendant No.1 was appointed as distributor in respect of Sargodha-I Territory. The defendant has neither denied the said averment of the F affidavit or questioned the authenticity of the document nor appeared in the witness box. Accordingly the issues is answered in affirmative. ISSUES No.2. The defendant No.2 in his written statement categorically denied the authenticity of the alleged security bond Exh.9. From the perusal of the said exhibit, it appears that the said Security Bond was executed before the defendant No.1 was appointed as sole distributor and further N.I.C. number of the defendant No.2 on it also fake numbers and witness of NADRA in statement stated that Exh.D.W.1/J seems to a fake NIC. Since the plaintiff has failed to examine the attesting witnesses which according to Mr. Naveedul Haq were not traceable. The learned Advocate for the plaintiff rightly conceded that in the absence of the- evidence of attesting witnesses it is not possible to hold that the defendant No.2. has executed the bond and is liable as guarantor under the bond. In view of the above, the issue is answered in negative. ISSUES Nos.3, 4 and

5. These 'issues are inter-connected. The plaintiff in his affidavit-in-evidence stated that the goods valued Rs.48,88,133.43 have been supplied to the defendant No.1 but he failed to pay the price of the same. Along with affidavit-in-evidence plaintiff has produced invoices as Exhs.10 and

11. The plaintiff also produced delivery orders along with his affidavit-in evidence as Exhs.12 and

13. In an affidavit Exh.14 defendant No.1 admitted outstanding liabilities and undertakes to pay the same in instalments of Rs.1,00,000 per month. In view of the above documents and further that since the defendant No.1 failed to appear to give evidence in rebuttal the issues are answered in affirmative. ISSUE No.6. For the foregoing reasons suit is decreed against defendant No.1 in the sum of Rs.39,40,806.70 with interest/mark-up at the rate of 10% from the date of filing of the suit till realization with cost and dismissed against defendant No.2. H.B.T./B-10/K Order accordingly.