1980 PLP C'1312 (CLC)

ABDUL HAYEE KURESHI, J.--On the conclusion of the hearing of this case we had by a short order allowed the appeal and decreed the suit filed by the appellant/plaintiff for a sum of Rs. 51,155.12, with interest at the rate of 6% from the date of decree until its realisation. We had left the parties to bear their own costs. The reasons for such short order presently follows :--

2. The brief facts of the case are that plaintiffs M/s. Castrol Limited, manufacture and sell motor lubricants. The defendants M/s. General Tyre and Rubber Company and its four partners, namely, Ismail Danabai and his 3 sons, Abdul Karim, Ghulam Hussain and Mohammad Hanif, used to purchase lubricants from the plaintiff. According to the plaint, the plaintiff had sold and delivered lubricants to the partnership firm and as on 29th November, 1966, they were indebted to the plaintiff to the extent of Rs. 67,652.96. This amount was composed of 3 separate amounts. The first item of outstanding aggregating Rs. 51,155.12 was on account of the price of goods supplied, the second item of Rs. 14,496.66 was on account of a rebate which had wrongly been given by the plaintiff in favour of the defendant and the third item of Rs. 2,003.18 was on account of interest calculated at 7J% per annum on bills upto 30th April, 1967, The plaintiff had called upon the defendants to pay this amount but without success so that a suit was filed for realisation of this amount. Together with the plaint, the plaintiff had submitted a statement of accounts as on 7th March, 1967, and the said statement showed a debit balance of Rs. 51,155.12 as the price of the goods sold and this statement also showed 3 amounts of Rs. 6,998.87, Rs. 780.80 and R:s. 7,615.''1, added as credit on account of rebate in favour of the defendants. Such rebate, according to the plaint, was not payable to the defendants and they had claimed this amount.

3. All the 5 defendants filed a joint written statement in which they denied the allegations in the plaint and took credit for introducing the goods of the plaintiff in Pakistan. The liability of Rs. 51,155.12 on account of price of goods was also denied and so was the liability for payment of interest. The defendants has further averred that the plaintiff had illegally debited a sum of Rs. 1,396.93 on account of increase in the price as a result of some defence surcharge having been imposed by the Government. In was further averred that the defendants were entitled to discount and rebate in accordance with the agreements entered into between the parties in the years preceding the year in respect of the supplied and therefore, the defendants were euti"led to a sum of Rs. 28,597.10. They also raised a plea that they had advanced a sum of Rs. 8,000 to the plaintiff in respect of a non-transferable car and such sum is to be refunded to the defendants by the plaintiff. In respect of this payment of Rs. 8,000 it must be stated that it was in a nature of a set off and no Court fees was paid nor counterclaim had been preferred by, the defendants.

4. On the pleadings of the parties the learned Single Judge framed the following 10 issues :- (1) Whether the plaintiffs' lubricants were unknown in this country until the defendants introduced them in the country. (2) Whether there was a contract or arrangement between the plaintiff and the defendants.during the relevant period and, if so, what were its terms? (3) Whether the plaintiff is entitled to cancel or claim back from the defendants the rebate to the tune .of Rs. 14,494.66 ? (4) Whether the sum of Rs. 51,155.32 towards the price of goods is due from the defendants to the plaintiff ? (5) Is the plaintiff entitled to recover Rs. 1,396.93 as defence surcharge from the defendants (6) Whether the defendants are liable to pay to the plaintiff a sum of Rs. 2,003.18 as and by way of interest at the rate of 7 1/2 % per annum :' (7) Whether a sum of Rs. 28,597.10 is due from and payable by the plaintiff to the defendants towards the gallonage rebate ? (8) Whether a sum of Rs. 8,000 is due from and payable by the plaintiff in respect of an alleged advance made against the plaintiff company's alleged Vauxhall Car No. KAB-1941 ? (9) Whether the plaintiff made any commitments to the defendants regarding service and facilities to be offered by Pakistan National Oils Limited as the plaintiff's sole distributor ? If so, whether the plaintiff as well as its sole distributors failed to honour such com?mitments and what is the effect ? (10) To what relief is the plaintiff entitled ?

5. In regard to Issues Nos. 1 and 2 Mr. Nomani, the learned advocate for the appellant stated that the same were irrelevant and he did not invite us to give a determination. Issue No. 3 was not pressed by Mr. Nomani on the premises that if the suit was decreed in his favour for a sum of Its. 51,155.12 on account of the price of goods the defendants would be entitled to the rebate of Rs. 14,494.66. In fact, only issue that has been pressed before us was Issue No. 4 in regard to the liability to pay the value of the goods, This issue was decided by the learned Single Judge against the plaintiff/appellant. According to the learned Single Judge the case of the plaintiff in this regard depended on true copies of 25 invoices submitted by the plaintiff to the defendants. In addition, the plaintiff had also produced account books, namely, Sales Day Book and Individual Account book, at the time the suit was fixed for evidence. These account books were not relied on by the learned Single Judge for the reason that Mr. Gani, the Accountant of the plaintiff company had admitted in his cross-examination that the . Sales Day book was not kept day-wise or in regular course of business and in regard to individual Account Book the same witness had stated that the entries iii the book were copied out from the Sales Day Book. In short, the learned Single Judge came to the conclusion that the only documentary evidence in favour of the plaintiff was the copies of invoices and the originals whereof had not been produced by the defendants in spite of notice. On such premises the learned Single Judge stated the case as follows ;--. "There remains the evidence of the copies of the invoices and Mr. Nomani placed great stress on the fact that although he had given a notice to Mr. Hassan A. Shaikh to produce the original invoices this had not been done. In view of learned counsel's notice to produce the copies produced by him are admissible. But they can help the plaintiff's case if they enable it to prove that the amount under these invoices had not been paid. There is nothing whatever in these invoices to show that the amounts due under them had not been pad."

6. The learned Single Judge then took notice of the fact that Mr. Hassan A. Shaikh, Advocate for the defendants/respondents, had admitted the copies of the invoices. In that behalf the learned Single Judge came to the conclusion that there was nothing in those invoices to show that the amounts due from the defendants/respondents had not been paid. The learned Single judge also took notice of the fact that the Delivery Notes signed on behalf of the defendants/respondents, Karachi Tyre and Rubber Company, as also the receipt books denoting payments had not been produced by the plaintiffs. On such premises he had rejected the claim advanced by the plaintiff/appellant-Company.

7. This issue has been contested by Mr. Nomani and Mr. Hassan A. Shaikh very strenuously. We have also examined the entire record and find that there is a bulk of correspondence between the parties in regard to the demand. The case of the plaintiff/appellant is that the statement of accounts was sent to the defendants/respondents and further that in regard to the demand of Rs. 51,155.12, the defendants respondents has not raised any objection. Mr. Nomani for the plaintiff/appellant has invited our attention to a letter of the plaintiff/appellant (Exh. 72) dated 15th December, 1966, in which the demand for this amount had been made and a grievance bad been raised, that the outstanding had continued for a considerable period of time. Mr. Nomani also drew our attention to a telegram sent by the plaintiff/appellant on 22nd December, 1966, calling upon the defendants/respondents to, clear the outstanding during the month. The defendants only witness Ghulam Hussain admitted having received letter (Exh. 72) and frther stated that the statement of account must have accompanied the letter because the letter itself shows that the statement had been sent alongwith it. In that context Mr. Nomani invited our attention - to the letter (Exh. 70) written by the defendants/ respondents in reply to the telegram. No doubt, Exh. 70 refers only to the telegram dated 22nd December, 1966, but it is admitted by Ghulam Hussain hat even the earlier letter dated 15th December, 1966 together with the statement of account had been received by the defendants/ respondents. In the reply (Exh. 70) not a word has been said b the defendants to challenge this demand of Rs. 51,155.12 on account of? the price of goods supplied. Mr. Nomani has also invited our attention to the evidence of Ghulam Hussain, the only witness of the defendants/ respondents to demonstrate that even in his evidence he had not stated that the goods in respect of which Rs. 51,155.12 were being demanded had not been delivered or that the price had been paid. Additionally, in the written statement it was only denied that sum of Rs. 51,155.12 was outstanding without stating whether the goods had not been supplied or that the price had already been paid. We have gone through this correspondence, the evidence of Ghulam Hussain and the written statement very minutely and we find that besides the general denial the defendants/ respondmt$ had been set up any specific case as to whether the goods had been received or if the goods had been received the price had been paid, Mr. Nomani has also invited our attention to some Credit Notes and Debit Notes issued by the plaintiff to the defendants. These documents were exhibited and numbered as Exh.? 7. to Exh.

19. The documents related to a period beginning 28th December, 1965 end ending 29th November, 1966. Each one of these documents refers to supplies and discount or rebate credited to the account of defendants/respondents in respect of the dealings. Such documents clearly show that the defandants/ respondents had obtained huge rebates or discounts from the plaintiff/ appellant and that points to supplies having been made by the plaintiff/ appellant to defendants/respondents as between December, 1966, and November, 1966. These notes coupled with the copies of invoices bearing Exh. 7, 6/2 to 6/25, leave no manner of doubt in our mind that during this period the plaintiff/appellant had been making supplies of goods to the defendants/respondents. The learned Single Judge on such premises and in view of the admission by Mr. Hassan A. Shaikh recorded that there was no evidence to show that the defendants/respondents had not paid the price. On that point we must respectfully state that the statement of accounts clearly mentions such amounts as had been paid by the defendants/respondents and on the other hand the defendants had pro?duced no evidence whatsoever to show that they had paid the amounts. In addition, there is the conspicuous absence of any demur by the defendants/ respondents in regard to the demand of Rs. 51,155.12 on account of the price of goods supplied. The learned Single Judge held that the account books produced by the plaintiff/appellant were no maintained regularly. We agree with such appreciation of evidence but the mere fact of the books not having been maintained in regular course will in the instant case make no difference. First, Mr. Hassan A. Shaikh appearing for the defendants/respondents did not find any discrepancy between the statement of account, invoices and debit or credit notes brought on the record qua the books of accounts that were produced by the plaintiff/appellants. In such view of the matter we are constrained to hold that the plaintiff/appellant had established the case in regard to supply of the goods and non-payment of the price. We reverse the finding on Issue No. 4 and held this issue to be proved in favour of the/ plaintiff/appellant.

8. In regard to the refund of the discount or rebate Mr. Nomani appearing for the plaintiff/appellant clearly stated before us that he would not press the issue in such regard. 1n our view, that was the correct approach because if the supplies had been made by the plaintiff/appellant they had also to pay the discount or the rebate.

9. Rest of the issues were not pressed before us and we need not proceed to examine the case fro that extent.

10. In the result, we allow this appeal and decree the suit of the plaintiff/appellant for a sum of Rs. 51,155.12 with no order as to costs. We allow interest in favour of the plaintiff/appellant at 6% per annum from the date of this decree: until realisation. Since success is divided we leave the parties to bear their own costs. M. Y. M.???????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.