1986 PLP 1882 (MLD)

‑‑‑S.45‑‑Liability of partners‑‑Persons proved to be partners in firm, held, would be jointly and severally liable to pay decretal amount‑ However, decree was ordered to be initially executed against firm property and in case of non‑satisfaction of claim to be executed against individual partners. Noor Mohammad for Plaintiffs. Nemo for Respondents. Date of hearing: 22nd April, 1986. This is a suit for the recovery of Rs.67,48,499.50 claiming from defendants for the breach of the contract of supply of paper bags by the defendants to plaintiffs. The facts giving rise to the above suit are that the plaintiffs on or about 26‑12‑1973 entered into a contract with defendant No.1 for the supply of 20,00,000 paper bags to the plaintiffs on the terms and conditions stated in the contract for a price of Rs.70,78,000, subsequently increased to Rs.94,85,560 payable by the plaintiffs to the defendant through a local Letter of Credit. Accordingly in or about March, 1974 a local Letter of Credit was established in favour of defendant No. l through National Bank of Pakistan P.I.D.C. Branch, Karachi for Rs.70,78,000, subsequently increased to Rs.94,85,

000. Defendant No.1 received by withdrawing from the bank the said amount of Rs.94,85,560 partly before the importation of the said goods and the balance against the shipping documents showing importation of the goods covered by the said letter of credit. The goods arrived in Karachi in or about March, 1975, but were found by the plaintiffs extensively damaged. Defendant No.1 was thus able to deliver to plaintiffs only about 11,50,000 bags by June, 1976 leaving a balance of 8,50,000 bags remaining undelivered to the plaintiffs, which were never delivered to the plaintiffs in spite of the fact that defendant No.1 from time to time acknowledged its liability and made promises to import and supply the same to the plaintiffs. Defendant No.1 lastly promised to import the entire balance of quantity of 8,50,000 bags before 31‑12‑1978 and to supply the same to the plaintiffs which the plaintiffs agreed. Defendant No.1, however, failed to neglect to fulfil its said promise. In fact, the promise was never fulfilled in spite of repeated notices and demands made by the plaintiffs; hence the plaintiffs had no option but to file this suit, praying for a decree against the defendants jointly and severally in the sum of Rs.67,48,499.50 with interest at the rate of 14% per annum on the decretal amount from the date of suit until realisation and costs.

2. On 28 3‑1982 defendant No.2 was declared ex parte. On 21 4‑1982 defendant No.6 was debarred from filing written statement. On 17‑8‑1982 defendants Nos.l, 3 and 5 were also debarred. Defendant No.4 was declared ex parte on 13‑1‑ 1985. The suit was thus fixed for final disposal on 21‑4‑1986. Mr. Usman Ghani Rashid, learned counsel for defendants Nos.l and 3 appeared on that day and after making a statement that he had nothing to say in the matter except that defendant No.3 has died during the course of proceedings. As and when Mr. Noor Muhammad put his witness in the witness‑box, he left the Court room.

3. Mr. Noor Muhammad, learned counsel for the plaintiffs has examined two witnesses and produced a number of documents to prove the claim of the plaintiffs. Mr. Noor Muhammad, while arguing the case, rightly submitted that costs of 8,50,000 paper bags comes to Rs.40,35,787.50 on the basis that the price of the entire quantity of 20,00,000 bags was Rs.94,85,

560. Since there is no evidence in rebuttal, this amount is accepted to be correct. The plaintiffs are entitled to the refund of the said amount.

4. The plaintiffs have also claimed damages amounting to Rs.27,12,712 from the defendants. The witnesses produced on behalf of the plaintiffs have not said a word so as to substantiate their claim for damages. I, therefore, asked Mr. Noor Muhammad, learned counsel for the plaintiffs as to how the damages have been calculated and what is the evidence in respect thereof. He then submitted that this amount of Rs.27,12,712 has been calculated at the rate of 14% per annum as interest. I am afraid, the plaintiffs are not entitled to the said amount as damages. I will, however, grant compensation at the rate of 6% per annum from the day the goods in question i.e. 8.50,000 bags remained undelivered upto the date of the institution of the suit. The suit, is, therefore, decreed in the sum of Rs.40 35,787.50. with compensation at the rate of 6% per annum under section 61 of the Sale of Goods Act, 1930, from 1‑1‑1979 till it remains unpaid with costs.

5. Now the question is against whom the decree should be passed. P.W.2 has stated that defendants Nos.2 to 6 are partners of defendant No.1. It appears from some of the documents produced in Court that defendants Nos.2 to 5 have been signing the documents for and on behalf of the firm, whereas there is no documentary evidence to show that defendant No.6 had any connection with the firm. As there is no evidence in rebuttal, it is held that defendants Nos.l, 2, 4 and 5 are jointly and severally liable to pay the decretal amount. I have not passed a decree against defendant No.3, who has been stated to have died So also no decree is passed against defendant No.6 as the plaintiffs have failed to prove any connection between the plaintiffs and him, as already observed above.

6. It may further be observed that the decree will first be executed against defendant No.1. In case the decree remains unsatisfied, in full or part thereof, the same shall then, be executed against the defendants named above. A.A. Suit decreed.