2003 PLP 846 (CLC)

JAWWAD S. KHAWAJA, J.

This appeal is directed against the judgment and decree of the learned trial Court dated 30-4-1992.

2. The respondents/plaintiffs filed a suit for recovery of Rs.8,52,641.83 together with interest thereon as detailed in the plaint. The claim of the respondents/plaintiffs was founded on a contract dated 26-6-1984 entered into by the respondents/plaintiffs with the appellants defendants where-under the appellants had agreed to supply certain wireless equipment to the respondents/plaintiffs.

3. The suit was resisted by the appellants/defendants. The main thrust of the case set up by the appellants, was that they were merely agents acting for and on behalf of Messrs International Telecommunication System, Florida, U.S.A. and were not independent contractors. On this basis liability for performance of the above-referred contract or for pay damages thereunder, was disclaimed by the appellants/defendants.

4. Based on the pleadings of the parties, the learned trial Court framed the following issues:-- (1) Whether the suit is bad for misjoinder and non joinder of the parties? OPD (2) Whether the plaintiff has no cause of action and locus standi? OPD (3) Whether the suit has been filed with mala fide intention? OPD (4) Whether the plaintiff is entitled to recover Rs.8,52,614.83 from the defendant? OPP

5. We propose to deal with Issue No.1 first. Learned counsel for the appellants reiterated the stance adopted in the written statement and before the learned trial Court. He argued that Messrs International Telecommunication System, Florida, U.S.A. was the contracting party which ought to have been sued as a defendant. To support this contention, learned counsel for the appellants referred to various letters to show that the appellants were acting on behalf of Messrs International Telecommunication System, Florida, U.S.A. merely as agents. He also referred para. 5 of the plaint wherein Messrs International Telecommunication System, Florida, U.S.A. was mentioned as the principal of the defendants. In addition, learned counsel for the appellants drew the attention of the Court to clause (21) of the aforesaid contract which required payment of a sum of US $42737.20 to be made to Messrs International Telecommunication System, Florida, U.S.A., through an irrevocable letter of credit.

6. We have considered the aforesaid arguments of learned counsel for the appellants and find the same to be without merit. The contract, on the basis of which the present suit was filed by the respondents/plaintiffs, is the most relevant piece of evidence and, in our opinion, is conclusive of Issue No.

1. The -said contract has been produced on record as Exh.P.3. It shows that appellant No.1, namely, Simplex Trading Corporation was the contracting party. Messrs International Telecommunication System, Florida, U.S.A., has only been mentioned in Clause (21) referred to above. Clause (21) merely stipulates the mode or making payment of the contract price. Although it stipulates that payment shall be made to Messrs International Telecommunication System. Florida, U.S.A, through irrevocable letter of credit this alone does not convert the appellants into agents of Messrs International Telecommunication System, Florid; U.S.A. As noted the appellant No-1, in clear and unambiguous terms, is mentioned as the contractor. There is nothing in the contract to suggest even remotely that the appellant No.1 was acting as an agent of Messrs International Telecommunication System, Florida, U.S.A. In these circumstances. It cannot be held that appellant No.1 was not liable under the contract. The mere fact that payment had to be made through Letter of Credit in favour of Messrs International Telecommunication System, Florida, U.S.A. does not, in any manner, detract from the aforesaid conclusion. In the circumstances, we find that Issue No.1 was rightly decided against the appellants by the learned trial Court.

7. We next come to Issue No.4. On this issue, the plaintiffs respondents have led extensive documentary evidence. Exh.P.10 clearly shows that there was shortage in the supplies made by the contractor. Learned counsel for the appellants also did not deny that there was short supply of contracted equipment. He only stated that the goods arrived at Karachi Airport by mistake and were subsequently delivered at Lahore. From the contract we note that the entire consignment of contracted goods was to be delivered at Lahore by the first appellant. This contractual commitment was, admittedly, not fulfilled by the said appellant.

8. In addition, Exh. P.11 has also been produced on the record. This document, signed by the appellants, clearly acknowledges the liability of the appellants/defendants to make payment to the respondents/plaintiffs for the short supply made by them under the above-referred contract. On the basis of the aforesaid evidence, we conclude that Issue No.4 was also correctly decided by the learned trial Court.

9. The findings of the learned trial Court on Issues Nos.2 and were not assailed before us.

10. In view of the foregoing discussion and analysis of the evidence, we find that the impugned judgment and decree are not open to exception. As a consequence, this appeal is dismissed. H.B.T./S-623/L Appeal dismissed.