P L D 1971 Karachi 479 (PLP)

Asghar Hussain for Plaintiff. Shah Jamil Alam, Deputy Attorney‑General for Defen dants. Date of hearing : 2nd March 1971. These are proceedings on an award given by the sole arbitrator, namely, Mr. A. A. Jabbar, Deputy Financial Adviser to the Government of Pakistan, on 27th November 1968, by which a sum of Rs. 1,70,000 was found due and payable by the defendants to the plaintiffs as damages. The case arose out of a contract dated 29th September 1966, by clause 3 of which the Government of Pakistan agreed to deliver to the plaintiff about 100000 tons of rice. Actual delivery vas only of 37000 tons of rice. Consequently, the plaintiffs contended that there was breach of contract on the Government's part and the matter was referred to the sole arbitration of Mr. A. A. Jabbar, who found that there was a breach of contract by the Government in failing to deliver the contracted quantity of rice and assessed damages at Rs. 1,70,

000. Upon filing of the award in Court, objections thereto were filed by the defendants. At the arguments before me today, the only question canvassed was with regard to the meaning of the word "about" in relation to the quantity of 100000 tons of rice agreed to be delivered by the Govern ment of Pakistan to the plaintiffs. No other objections were pressed, as all the other findings of the arbitrator are findings of fact.

2. Mr. Shah Jamil Alam's contention is that the expression "about" conferred such discretion on the Government that the Government was not hound to deliver to the plaintiffs the full quantity of 100000 tons of rice, but could reduce this quantity to as low a figure as 37000 tons. Therefore, the question of law for consideration is as to what is the meaning of the word "about" in relation to the figure of 100000 tons mentioned in the contract. Mr. Asghar Hussain has placed before me the decision in The Resolven ((1892‑93) 9 T L R 75) in which the expression "thereabouts" was considered in relation to the figure of 2000 tons. It was held that the expression must be taken to qualify the 2000 tons to some extent and that five per cent. was a fair margin to allow. Then, the meaning of this expression has further been discussed in Butterworths' "Words and Phrases Legally Defined" Vol. 1, 2nd Edn., page

7. Reference in this work is made to an English decision Morris v. Levison ((1876) 1 C P C 155) in which Brett, J., held that when such word as "about" is used, the percentage of difference generally allowed is three per cent. Some other cases also have been referred to in this work, namely, Thomas v. Clark and Todd ((1818) 2 Stark 450) and Hunter v. Fry ((1819) B & Aid. 421) and the author has quoted the words from the decision in these cases that the direction to the jury in such cases has always been that the deviation must not be very large. Thus, when the word "about" is used in connection with quantity, the consensus of judicial opinion is that the A deviation from the contracted quantity should not be too large. In some cases this deviation has been restricted to three per cent. and in other cases to five per cent. But in the case before me, the deviation from the contracted quantity of 100000 tons is, to say the least, very large, that is, only 37000 tons were actually delivered by the defendants to the plaintiffs. The use of the expression "about" in the contract did not empower the defendants to reduce the contracted quantity of goods to such a low figure. I am, therefore, in agreement with the learned arbitrator that the defendants committed breach of contract in reducing the contracted quantity of rice from 100000 tons to 37000 tons only and would, accordingly, overrule the defendants, objection to the award on this point.

3. No other question, or objection was canvassed before me against the award. As stated above, the only point for considera tion before me was as to the meaning of the word "about" in reation to the quantity of 100000 tons. On this question, I have found myself unable to agree with the contention of Mr. Shah Jamil Alam for the reasons mentioned above. Consequently, the award is confirmed and is made rule of the Court. The plaintiffs shall have costs of these proceedings. K. B. A. Award confirmed.