1988 PLP 487 (CLC)

Shaikh Muzaffar Ahmad Zafar for Appellant. Bashir A. Mujahid for Respondent. Dates of hearing: 6th April and 28th October, 1987. ABAID ULLAH KHAN, J.‑‑This appeal is directed against the judgment and decree of the learned Civil Judge, Faisalabad, dated the 7th May, 1981, decreeing the respondent's suit for the recovery of Rs.2,51,275 to the extent of Rs.1,05,687.50. The appellant, H.M. Sadiq and Company, Faisalabad, had contracted on the 28th October, 1972, with the respondent, Volkart (Pakistan) Limited, Karachi, to supply the latter 1000. fully pressed bales of L.S.S. roller pure second picking free from admixture cotton at the rate of Rs.117.75 per maund till 31st December, 1972. The period of delivery was extended by mutual consent to the 31st January, 1973. According to the respondent the price of cotton shot up to an all time record height and, therefore, the appellant did not fulfil its obligations of supplying the requisite quantity of cotton and that he (respondent) had to purchase 1000 bales of cotton at the enhanced rate ruling in February 1973 and thus suffered considerable loss. On the appellant's failure to honour its commitment, the respondent brought suit for recovery of damages reckoned at the difference between the contracted rate (Rs.117.75 per maund) and the market rate (Rs. 176.15 per maund) prevalent on the 1st February, 1973. The appellant denied that he had been guilty of breach of contract and asserted that it was not answerable for payment of damages.

2. The learned trial Court found that it was the appellant which committed breach of contract and as such was liable to pay damages. The photostat copies of daily market reports of the Karachi Cotton Association indicating rate of L. S. S. roller cotton on the 1st February, 1973, to be Rs.176.15 per maund, produced by the respondent were not accepted by the learned Court in evidence as they were not properly proved. On the admission of the appellant's witness, Mahmood Anwar, D.W. 2, that in the end of January 1973, L.S.S. Sarjan cotton was sold at the rate of Rs.135 to Rs.140 per maund the learned Court adopted Rs.140 as the sale price prevailing on the 1st February, 1973, to determine the quantum of damages. 'The difference between the two prices (Rs.140 per maund minus Rs.117.75 per maund) of 1000 bales of cotton amounting in all to Rs.1,05,687.50 furnished the learned trial Court measure of damages. The suit was accordingly decreed to that extent.

3. The learned counsel for the appellant has frankly conceded that the appellant was at fault in not fulfilling its obligations under the contract for supplying the contracted quantity of cotton to the respondent. However, he took exception to the measure of damages adopted by the learned trial Court. He contended that the learned Court had misread the statement of Mahmood Anwar, D.W.2, to fix the market price of L.S.S. roller cotton which the appellant was to supply to the respondent. He submitted that what Mahmood Anwar had said was that the market rate of L . S . S . Sarjan cotton in the end of January 1973, was Rs.135/140. The contention of the learned counsel that the price of L.S.S. roller cotton per maund was about Rs.20 less than L.S.S. sarjan cotton is not borne out from anything on the record. As explained by the learned counsel for the respondent the two types of cotton simply differ in the process to which they are subjected by the ginning mills and that there was no difference in their prices. In the circumstances the learned Court did not commit any illegality in forming the price of L.S.S. Sarjan cotton given by Mahmood Anwar as basis for working out damages. Even otherwise equity is not in favour of the appellant. As the respondent has alleged and brought into evidence, the appellant had, in view of the increase in the price of cotton., chosen not to supply cotton to the respondent. The appellant does not deserve any sympathy. The respondent, who has business worldwide and carries good credentials, must be believed when it says that it had to buy cotton elsewhere at the enhanced rate when the appellant failed to supply its contracted quantity. The appellant must compensate the respondent at least in the decretal amount. This appeal is without any force and is dismissed with costs. S.Q./H‑40/L Appeal dismissed