1996 PLP 580 (MLD)

The defendants Nos. l and 3 examined Lt.-Commander Khalid Zulfiqar who confirmed in general the contents of the written statement. In cross-examination he averred that no date for the supply of the goods (equipment) was stipulated in the contract. On enquiry in respect of the said equipment they were informed that the equipment was already air lifted as such they started investigating and found that the equipment was sold by the Customs Authorities. However, he admitted that from June, 1973 up to August, 1975 they did not contact the Customs Authorities to ascertain the position of the goods as they were not aware that goods had arrived at Karachi. He admitted that the said equipment was still in use of the Pak. Navy. He further admitted that the said equipment was requisitioned by the Pak. Navy under the Defence of Pakistan Rules and averred that Exh.7/14 was sent by Commander Logistic to the plaintiff to the effect that the matter has been referred to Judge Advocate-General Naval Headquarters, Karachi and any future correspondence should be addressed to him. He admitted that at the relevant time the price of the equipment in Pakistani currency was Rs.200,000 approximately. Mehmoodur Rehman the Law Officer Customs was examined by the defendants (Exh.10). He confirmed that in 1975 the Customs Department Air Freight Unit Airport had disposed of the subject equipment through auction. The deposition of the Law Officer Customs confirms that the subject equipment was unclaimed and as such was sold to the plaintiff Muhammad Umar in a grand auction held on 2-8-1975 at the Airport by the Customs Authorities. The defendant No. l raised the plea in the written statement that due to wrong description of the equipment in the auction notice as "items of personal effects and electric instruments" the plaintiff purchased it. But nothing has been said in evidence or during arguments. On my querry Mr. Abrar Hasan stated that the boxes containing the equipment were open and shown to the bidders at the time of auction. Be that as it may, the defendant could not explain as to why they neglected to trace the goods for so long i.e. from 1973 when order was placed and subsequently air lifted till 1976 when it was requisitioned. The safe notice published in Dawn was also sent by the plaintiff to various agents including Navy which (Exh.7/7) did give details of the equipment and the name of the manufacturer but even then Pakistan Navy did not wake up. Under the circumstances it can be said that an offer was made by the Customs Authorities which was accepted by the plaintiff for a consideration whereof the contract was completed. The receipt of Exh.7/4 was not denied. In the circumstances, I answer the Issues Nos. 1, 2 and 3 in affirmative. Issues Nos.4 and 5: The plaintiff very clearly stated in his deposition that after advertisement of sale for the equipment in Dawn and the letter Exh.7/6 the defendant No.2 indicated their interest and as such the equipment was delivered to them by the plaintiff and after negotiation the defendant No.2 agreed to purchase the same for Rs.200,000 for which the bill was forwarded. The delivery of the equipment was acknowledged by defendant No.2 on 8-12-1975. This witness was not cross-examined and his deposition remained unrebutted. Lt. Commander Khalid Zulfiqar admitted that the equipment was requisitioned by Pakistan Navy and the delivery was taken from defendant No.2. Metlmood Ali Khan, the Director of Suparco also admitted that the equipment was brought for inspection and evaluation and on requisition by Pakistan Navy was handed over to them. However, he denied the purchase of the same by defendant No.2. The deposition, documents and the behaviour of the witnesses show a definite interest of defendant No.2 in the equipment but of course interest without the presence of other essential ingredients of a contract does not create a sale as final. There is no evidence, written or verbal, to prove that the price of Rs.200,000 was finally accepted by the defendant No.2. The offer of sale exists p but the acceptance and consideration are missing. Further, admittedly the equipment was delivered on 8-12-1975 and the bill was submitted on 30-3-1976 while the requisitioning letter was dated 19-3-1976 and the delivery of the instrument was given immediately thereafter. As such the question of delay in payment of sale price did not arise. In view of the above, the answer to Issues Nos.4 and 5 is in the negative. Issue No.6: The querry made by the plaintiff from the manufacturers of the equipment (Exh.7/2) and the reply from them and their agent in Karachi (Exhs.7/3 and 7/4 respectively) and the pro forma invoice (Exh.7/4/1) giving the prevailing market price of the equipment shows that the manufacturers were ready and willing to supply the said equipment and as such the answer to this issue is in the affirmative. Issue No.7: The Law Officer Customs,. Mehmoodur Rehman, stated in his examination-in-chief that after coming to know about the equipment in the custody of Suparco, the Pakistan Navy wrote a letter to C.B.R. and on the basis of the information contained in the said letter, the C.B.R. wrote to the Customs Authorities to cancel the auction of the equipment. After the said cancellation, the plaintiff was duly informed by the Collector of Customs and offered the refund of Rs.5,000 which was paid by the plaintiff for the purchase of the said equipment. However, Asghar Ali showed his ignorance if the amount was refunded to the plaintiff or not. None of the parties have disputed the powers of the C.B.R. for cancellation of the auction but since the equipment was already requisitioned by the Pakistan Navy under Rule 121 of the Defence of Pakistan Rules, the question whether the C.B.R. was empowered to cancel the said auction or not, did not arise. The plaintiffs have challenged the order dated 19-3-1976 requisitioning the said equipment as illegal, ultra vires, inoperative and unwarranted by law and not having been passed by a competent Authority and prays for decree of Rs.200,000 against the defendants. Issues Nos. 8 and 9: Issue No.8 is whether the plaintiff is entitled to a decree for Rs.200,000 against the defendant No.2 with interest at 10 per cent. per annum. As I have already discussed hereinabove, that the plaintiff did submit a bill for Rs.200,000 to the defendant No.2 but since the same was not accepted and acted upon the said contract was never completed. Further, that before the said bill was submitted to the defendant No.2, the defendant No. l had passed an order, dated 19-3-1976 requisitioning the said equipment under Rule 121 of the Defence of Pakistan Rules, 1971. Now the question arises that what are the rights and liabilities of the parties if any goods are requisitioned by the Government under the said Rules. "

121. Requisitionin of f property.

(1) If in the opinion of the Central Government it is necessary or expedient so to do for ensuring the security, the public safety or interest, or the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for maintaining supplies and services essential to the life of the- community, it may by order in writing requisition any property, movable or immovable, and may make such further orders as appear to it to be necessary or expedient connection with the requisitioning: Provided that no property used for-the purpose of religious worship and no such property as is referred to in rule 111 or rule 117 shall be requisitioned under this rule. (2) . . . . . . . . . . . . . . . . not relevant . . . . . . . . . . . . . . . . . (3) . . . . . . . . . . . . . . . . not relevant . . . . . . . . . . . . . . . . . (4) Whenever in pursuance of sub-rule (2) the Central Government requisitions or acquires any movable property, the owner thereof shall be paid such compensation as the Central Government may determine: " The above sub-rule (4) of Rule 121 clearly provides that the owner of such goods whose property has been requisitioned will be compensated as the Central C Government may determine. Under sub-rule (7) of Rule 121, the powers of the Central Government could be exercised by the following persons: "(7) The powers conferred on the Central Government by sub-rules (1), (2), (4) (5) and (6) shall, subject to any general or special order of the Central Government be exercisable also by

(a)??????? The Commander-in-Chief of the Pakistan Army the Pakistan Navy, or ??????????? the Pakistan Air Force; (b)??????? The Formation Commander; (c)??????? The Director General, Defence Procurement, and (d)??????? The Chairman, Pakistan Ordnance Factories Board. " As far as the Authority to determine such compensation is concerned has been provided under these rules. Now the question arises if the Central Government or any person inherent with such power had determined a compensation for the goods so requisitioned and the same was paid to and accepted by the plaintiffs. The plaintiff in his evidence which went unrebutted stated that they had submitted bill of Rs.200,000 to the Pakistan Navy and had sent reminders but they were informed by a legal notice (Exh.7/14) that their matter was referred to the Judge Advocate-General, Naval Headquarters, Karachi and as such they should contact him in this respect. He has in unequivocal terms denied any payment and has claimed Rs.200,000 with ten per cent interest as compensation/price of the said equipment. Lt.-Commander Khalid Zulfiqar in his deposition stated that the plaintiff was offered an amount of Rs.5,000 as compensation for the goods in question and a cross-cheque of that amount was sent to the plaintiff, which was duly received and acknowledged by him. He admitted that the value of the consignment in question at the relevant time in Pakistan currency was Rs.200,000 approximately. Mehmoodur Rehman, the witness examined by the defendant No.2 showed his ignorance in regard to the refund of the amount the plaintiff paid to the Customs. While arguments were going on I had inquired from the officer representing the Pakistan Navy if the cheque paid to the plaintiff was encashed. He took out the said cheque from his papers and stated that "this was the cheque" which was sent to the plaintiff. This shows that the cheque, which was sent to the plaintiff Muhammad Umar was returned by him which amounts to non-acceptance of the compensation by the plaintiff. The defendant No. 2 took no pains as to contact the plaintiff and settle the compensation in regard to the equipment. The entire evidence shows that the equipment could be made available by the manufacturers through their agent Mushko & Company Limited, Karachi and the price prevailing at the time has been given in their invoice dated 5-5-1976 is Rs.120,

140. Admittedly the plaintiff being a businessman participated in the Custom's auction with the sole motive to, purchase goods from the said auction and after proper examination and if any repairs needed after doing so he will sell the goods with profit. It is very obvious that the Suparco showed interest in the said equipment but due to requisitioning, they changed their stand. The Navy, though sent compensation of Rs.5,000 but after the same having been returned by the plaintiff never bothered to settle the compensation. In view of the, efforts that the plaintiff made from the date of participation in the auction till the instrument was requisitioned and to ensure his right to compensation of filing the present suit, he is awarded a decree of Rs.120,000 alongwith six per cent interest from the date of filing of the suit till payment, however, there will be no order as to costs. A:A./R-303/K????????????????????????????????????????????????????????????????????????????????????? Suit decreed.