1987 PLP 1292 (CLC)

Asbestos Cement Corrugated Sheets, Size 810' x 6 mm .... 1,000 Asbestos Cement Corrugated Sheets Red Coloured light weight Sheets, Size 6' x 41 " x 4mm .... 1,000 Asbestos Cement Corrugated Sheets Size10'x42‑3/4" x 6mm 500 Asbestos Cement Corrugated Sheets Size 8' x 42‑3/4" x 6mm 1,000 Asbestos Cement Corrugated Sheets Size 61x42‑3/4"x 6mm .... 1,000 ‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Total 4,500 ‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Quite obviously, therefore the quantity of 2,000 sheets mentioned in our letter, dated 29th April 1971, stands revised and increased to 4,500 sheets as above which kindly note and make arrangements for its crating immediately. You are also requested to arrange to book space for 4,500 sheets instead of 2,000 sheets. Awaiting your confirmation to the above and thanking you we remain, Yours faithfully, for M. WASIULLAH & COMPANY (Sd.) (M. Wasiullah Khan). Therefore, this order is linked with the previous order of the defendant No.l. Again by Exh.8/2 the order was placed in the following manner:‑

"Reference meeting of Kunwer Ismail Ali Khan of Messrs Goldstone Company, Abu Dhabi and the undersigned held with your Mr. Altaf Ahmed on 17th May, 1971 we are pleased to confirm our following order with you: (1) Asbestos Cement Corrugated Sheets, Size 10' x 3' x 6mm .... 2,500 Nos. (2) As bestos Cement Corrugate Sheets, Size 8'x 3'x 6mm ... 2,500 Nos. (3) Asbestos Cement Corrugate Sheets, Size 6'x3'x6mm ... 2,500 Nos. ‑‑‑‑‑‑‑‑‑‑‑‑‑ Total: 7,500 Nos. (4) Asbestos Cement Corrugate Sheets, Red coloured Size 6' x 41 x 6mm ... 2,000 Nos. ‑‑‑‑‑‑‑‑‑‑‑‑‑ Grand Total: 9,500 " ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Please note that the sheets at Nos.l, 2 and 3 above will be shipped @ 2,500 sheets in equal proportion of each size per month on the same terms as 4,500 sheets ordered per our letter, dated 15th May 1971 and your letter No.ACI/S/EXP/71, dated 18th May, 1971 to be shipped to Abu Dhabi by first available vessel. To avoid recurrence of mistakes caused by your Bank in respect of last shipment whereby Messrs Goldstone Company and we suffered much financially as well as in the imports of sheets, you will please ask your Accounts Department to prepare the Sight Draft in respect of 4,500 sheets as well as this order on the basis of 90 days for payment, as agreed, with clear instructions of your Bank to its correspondents in Abu Dhabi to count 90 days from the date of receipt and acceptance of the said Sight Draft by the Consignee at destination which is the normal and established practice for negotiation of such Sight Drafts. " In this letter for the first time the defendant No.l has described Goldstone Company Abu Dhabi as his associate and also reference has been made to the fresh requirement of this Company. From this letter it is clear that the defendant No.l is not merely a post office or an indenting agent, but he is an associate of defendant No.2 on its own admission. Even in this letter he termed the order as 'Our above fresh request'. It has not been stated that the request is on behalf of defendant No.2 or the Principal of defendant No.l. The entire correspondence clearly establishes that the orders were placed by the defendant No.l for shipment in favour of the defendant No.2 who was to pay through draft as ordered by the defendant No.l and in respect of a small consignment through a letter of credit. I am not inclined to believe the explanation given by the defendant No.l in his cross‑examination that by "our order" he meant on behalf of the defendant No.2. Even the literal and dictionary meaning of the words do not support the contention of the defendant No.l. In none of the letters the defendant No.l has stated that the order was placed on behalf of the defendant No.2 and that he was acting merely as an indenting agent or an agent only. In the absence of any such clarification' by using the words "our order", the manner in which instructions regarding quality, quantity and mode of payment have been given, leaves no doubt that the plea of the defendant No.l is an afterthought and devoid of any force. The other fact which lends support to the plaintiff's contention is that the defendant No.l has close association with the defendant No.2. In one document Exh.8/3 he admits the defendant No.2 to be his associate company. The plaintiff had filed a suit against the defendant No.2 at Abu Dhabi in respect of the same consignment. A decree was passed which is Exh.8/15 produced by the defendant No.l through the witness of the plaintiff. The defendant No.l has stated that this decree is not binding upon him as it was passed without giving notice to him. From the judgment and decree of Abu Dhabi Court it seems that the suit was filed against Goldstone Company and not against defendant No.l and, therefore, notice to him was not necessary. In that suit the defendant No.2 has admitted that Kunwar Ismail Khan, Wasiullah Khan the defendant No.l and an Arab namely Muhammad Bin Haider A1 Mohairi are the partners of Goldstone Company. This admission is binding on defendant No.2. The defendant No.l was in possession of decree Exh.8/15 which he would have either obtained directly or through defendant No.2. He has produced it through the plaintiff in cross‑examination. He would have been aware of the fact that the defendant No.2 has claimed defendant No.l to be a partner of defendant No.2 but did not produce any evidence worth the name to controvert it. He could have produced the partnership deed through the defendant No.2 or could have obtained such certificate from the relevant authority at Abu Dhabi to show that the defendant No.l has no concern whatsoever with the defendant No.2. Except a bare‑denial the defendant No.l has not brought such evidence on record. In these circumstances, the defendant No.l can be held to be a partner of the defendant Nd.2. In this view of the matter the order placed by the defendant No. l could not be treated as an order for and on behalf of the defendant No.

2. My finding on issue No.l is that there is privity of contract between plaintiff and defendant No.

1. So far the question of amount which the defendant No.l is liable to pay will be discussed in issue No.7. ISSUE NO.2: P.W.4 has produced the relevant documents to show that the goods were shipped to the defendant No.2. In fact there is no dispute about the quantity of the goods which were shipped. P.W.4 has stated D that the value of the goods was L.6,233.51 and this statement has gone unchallenged, therefore, my finding is that the goods worth 6,233.51 were shipped and supplied to the defendant No.2. ISSUES NOS. 3 AND 5: The learned counsel for the plaintiff has contended that as no cause of action has arisen against the defendant No.l and as there is a foreign judgment which operates as res judicata against the plaintiff, the Court has no jurisdiction to try this suit. In view of the finding on issue No.l the defendant No.l is liable and as the order was placed for shipment from Karachi from where the goods were shipped and E amount was to be paid this Court has jurisdiction to try the suit. So far foreign judgment is concerned it was made against the defendant No.2 and not against the defendant No.l. It is conclusive against defendant No.2. ISSUES NOS. 4 AND 7: The learned counsel for the defendant No.l has referred to Exh.8/16 and contended that the plaintiff cannot claim more than Rs.72,

201. This is a letter issued to defendant No.2 stating that in their books of account as on 30‑6‑1972 Rs.72,201 was payable to them and they requested the defendant No.l to sign confirmation slip and sent it directly to their auditor. Such routine letters are usually written to debtors so that the liability may be kept alive and accounts may be properly made. According to the learned counsel for the defendant No.l the plaintiff had claimed Rs.72,201 and, therefore, he cannot now claim higher amount. By this letter the plaintiff had not made any claim. It was written to defendant No.2 for obtaining confirmation in respect of debit entries which were made against the defendant No.2 in the books of accounts. It does not limit the liability of the defendant F No.l. The plaintiff has claimed L,.6,233.51 equivalent to Rs.76,360 as cost of the consignment shipped to defendant No.2. The other claims include Rs.4,507 being penalty imposed by the State Bank of Pakistan, Rs.1,52,720 being the cost for purchasing bonus vouchers for surrendering L.6,233.51 to the State Bank of Pakistan and Rs.68,724 being the market value of the bonus vouchers which the plaintiff would have earned on export. Except the statement of the defendant's witness no documentary evidence has been produced to show that the State Bank of Pakistan has imposed penalty and that the plaintiff had purchased the bonus vouchers. No evidence has been produced to show that the plaintiff was entitled to bonus vouchers equivalent to 45$ of the export value of the goods. In the absence of this evidence, the plaintiffs are entitled only to the cost of the goods which were shipped by them to the defendant No.2. The suit is decreed for Rs.76,358.48 equivalent to .6,233.51 at the rate of exchange of Rs.12.25 per pound Sterling with interest at 9% per annum from the date of the suit till recovery. A.A./A‑30/K Suit decreed.