MUHAMMAD MOOSA K. LAGHARI, J.--- The plaintiff M/s. Goteco Trading Ltd. Has filed this suit against the defendants for the reliefs of declaration, permanent injunction and damages.
2. Brief facts of the case, as per plaint, are that the plaintiff is engaged in the supply and sale of various commodities including fertilizer. Defendant No. 1 floated a worldwide Tender Inquiry No. FID- 3081 on 28.11.1991 for the supply of 30,000 Metric Tons of Triple Super Phosphate. The plaintiffs participated in the tender and being successful bidder, contract was awarded to them. However, before execution of the contract the plaintiff was asked to provide a Performance Board i.e. Bank Guarantee in the sum of US$ 227,587.50 which was accordingly provided by the plaintiff on 14.1.1992 being valid upto 31.8.1992 through Chase Manhattan Bank which was subsequently merged into defendant No. 3. Accordingly contract was executed between the parties on 31.3.1992 which specifically provided that the terms of delivery would be "Free on Board". The plaintiff delivered the fertilizer to the purchaser on 21.5.1992 at the Port of Sfax-Tunisia and the Master of ship confirmed receipt on Board the ship of the goods.
It is further stated that on arrival at Karachi, the ship was berthed on 17.6.1992 and according to the initial joint survey report of the surveyors of the plaintiffs and the defendants etc. Total manifested quantity of fertilizer of 31386 Metric Tons was confirmed. Subsequently a final joint Draught Survey was conducted on 16.7.1992 ,which also confirmed the 4-aforesaid position. It is further stated that after unloading, the fertilizer was sold/dispatched by defendant No. 2 to various distributors for consumption by the end users. It is alleged that after the delivery of the contracted supply, the payment to the plaintiff was initially withheld by the Islamic Development Bank which was the source of financing as per terms of the contract. The plaintiff approached the defendants in this respect who confirmed through their telexes dated 8.10.1992, 28.10,1992 and 3.11.1992 that the entire quantity of the fertilizer had been delivered at-the Port of Karachi.
The grievance of the plaintiffs is that despite the delivery of the entire consignment by the plaintiff as per terms of the contract, defendant No. 2 vide letter dated 13.7.1993 claimed payment of US$ 49,734.72 plus Pak Rupees 34,306.56 on account of alleged shortage of 288 Metric Tons of fertilizer.
The plaintiffs through their letter dated 4.81 993 strongly protested against the abovesaid illegal demand of the defendants urging therein that there was no short supply. However, the defendants vide their another letter dated 28.7 1994 again demanded the plaintiff to pay for the alleged shortages and in case of failure they threatened to encash the Bank Guarantee furnished by the plaintiffs. In these circumstances, the plaintiffs filed the instant suit.
3. Upon service of summons, defendants Nos. 1 and 2 filed written statement. On their failure to He the written statement, defendant No. 3 was debarred from appearing and defending the suit vide diary dated 27.9.1995.
4. Defendants Nos. 1 and 2 in their joint written statement denied various allegations of the plaintiff including the fact of delivery of their entire consignment. They alleged short delivery of 288 Metric Tons of fertilizer value of which amounted to US$ 49734.72. It was pleaded that during the discharge operation it was reported by the Stevedoring contractor through telex message, which fact was also observed by the operational staff of FID, that cargo was not in proper granular form and major quantity was found in powder shape which was contrary to contract specifications. It was further, pleaded that according to the analysis report of M/s. Qualitest Laboratory, the screen size of cargo did not conform to the specifications of contract. According to the defendants the shortage occurred due to weight variation which was caused "because cargo was not in proper granular/screen, size. Regarding the non-disclosure of deficiency in Final Joint Draught Survey, it was averred that the surveyors had nothing to do with the quantity/analysis of cargo. 'It is the case of the defendants that since the cargo did not fulfill the specifications stipulated in the contract, the supplier was responsible for the loss of 288 tons.
5. Issues were adopted vide order dated 23.10.1998. By the same order Mr. Nadeem Azhar, Advocate was appointed as Commissioner for recording evidence of the parties.
The issues are reproduced as under:--
(i) Whether the letter dated 13.3.1998 claiming payment of US$ 49734.72 plus Pak Rupees 34,306.56 by the defendants Nos. 1 and 2 on account of alleged shortage of 288 MT of fertilizer is illegal, unlawful and unwarranted by the circumstances of the present case?
(ii) Whether demand of defendants Nos. 1 and 2 is justified for encashment of performance Bond Bank Guarantee of US$ 50,000/-furnished by the plaintiff with the defendant No. 3?
(iii) Whether the defendants Nos. 1 and 2 are estopped from claiming any shortage after initial Draught Survey jointly conducted by the Surveyors of the defendants Nos. 1 and 2?
(iv) Whether the plaintiff entitled for damages as claimed in plaint on the ground mentioned in para. 17 of the plaint?
(v) What should the decree be?
6. Plaintiffs examined one Amar Lal, who claimed to be the local agent of the plaintiffs. He filed his affidavit in evidence as Exh.P/1 in which the contents of the plaint were reiterated. In his cross- examination he stated that the plant was verified by the then local agent of the plaintiffs namely Mr. Shahid Waris through whom suit was filed. He admitted that in the plaint it was nowhere mentioned that the said witness was also authorized agent of the plaintiffs. According to him he and Mr. Shahid Waris both are the attorneys of the plaintiffs.
7. The Commissioner vide his report dated 3.4.2000 submitted that evidence of the plaintiff's witness was recorded and his cross-examination was completed. On 23.9.1999. But despite several opportunities the defendants failed to lead any evidence. The said report was taken on record vide order dated 10.4.2000. By the same order side of the defendant was closed and the matter was ordered to be placed for arguments. However, on 15.5.2000 this Court while passing order on C.M.A.
3105 of 2000 moved by the defendants, allowed the defendants to produce evidence and the affidavit in evidence filed on behalf of the defendants Nos. 1 and 2 was taken on record and case was adjourned to 24.5.2000 for cross-examination. On 1.9.2000 the witness of the defendants agreed to produce the original documents and the case was accordingly adjourned. On 26.10.2000 although counsel for the defendants was not present but at the request of one Sami Ahmed, representative of the defendants, case was adjourned subject to the condition that the defendants will be ready with all, their. Evidence on the next date of hearing. On 12.1.2001 nobody was present on behalf of the defendants and it was ordered that in case the defendants fail to appear on the next date, their side would stand closed. Since none was present for defendants Nos. 1 and 2 on the next.
Date, their side was closed on 23.1.2001. The defendants filed C.M.A. 7491 of 2001 for re-opening of their Side but the same was dismissed vide order dated 28.1.2002.
8. Mr. Neel Keshav, Advocate advanced the arguments on behalf of the plaintiffs while Mr. Syed Tariq A.I, Federal Counsel argued the case on behalf of defendants Nos. 1 and 2. Mr. Masood Shaharyar stated to the outset that no relief was claimed against defendant No. 3.
9. Mr. Tariq A.I raised a preliminary objection and , inter alia, contended that the suit was not competently filed.
10. Mr. Neel Kashev, Advocate controverted the above arguments and pointed out that in the title it was clearly, mentioned that Shahid Waris was a duly constituted attorney and competent to verify and institute the plaint.
11. I have given due consideration to the arguments advanced by the learned counsel for the parties and examined .He material available on record.
12. It is settled law that the suit is liable to be dismissed if the same is found to be incompetently instituted. In light of the arguments urged before me the crucial question which primarily needs to be determined in the circumstances of the case is as to whether the suit was instituted by the person duly authorized and competent to institute the same on behalf of the plaintiffs.
13. It is an admitted position that the plaintiffs in the suit is a juristic person and in such a case the pleadings can only be verified by duly authorized person. The pleadings in the instant suit were verified by one Shahid Waris.
14. In order to prove that the plaint was duly in proper signed as required under Order VI Rule 14, CPC, it was necessary that the plaintiffs should have stated in the plaint that the signatory namely Shahid Waris was duly authorized to do so. Upon examination of the contents of the plaint, it is obviously clear that it has nowhere been pleaded in the plaint that said Shahid Waris was authorized to sign and verify the plaint.
(i) In Basdeo v. John Srnidt (1899) 22 All 55 1899 AWN 172 (F.B.) it was pointed out that "the object of the signature to the plaint is to prevent as far as possible disputes as to whether the suit was instituted with the plaintiffs knowledge and authority and that such authority may be established by other means besides the signature."
(emphasis laid by me).
(ii) In Bisheshar Nath v. Emperor (1918) 40 All 147 it was held that "the authority to bring a suit is a question of principle".
Similar view was endorsed in Secretary of State v. Dinshano Navirji and another (AIR 1925 Sindh 275). Further reference can be made to AIR 1925 Lahore 338.
(iii) I have already taken same view in the case reported as Messrs Gulf Air v. Messrs Shakil Air Express (Pvt.) Ltd. (2003 CLR (Kar) 246).
14. Order VI Rule 2, CPC requires that "every pleading shall contain a statement in aconcise form of the material facts on which the party pleading relies for his claim". From the said provision of law, it is manifest that the fact that the person who signed the plaint of the plaintiff was duly authorized to do so, was a material fact and such facts ought to have been pleaded in the plaint. It may be stated that all the facts which, though not necessary to establish the cause of action or defence, but which the party pleading is required to prove at the trial, are also material facts. In AIR (34) 1947 P.C. 132(A) it was observed as under:- "It is unfortunate that the facts on which the appellant relied as the foundation of his right were not set out in the plaint.......... "The rule that material facts should be pleaded is no mere technicality and an omission to observe it deprives pleadings of most of their value and may increase the difficulty of the Court's task of ascertaining the rights of the parties."
15. The plaint is undoubtedly devoid of pleading to say that Shahid Waris was a duly authorized attorney. Even no document was filed alongwith the 'plaint to show that Shahid Waris was a duly constituted attorney of the plaintiff. No only that, but in the endorsement of verification, the said Shahid Waris failed to make mention of his so-called authorization, if any.
Last but not the least, the perusal of the affidavit in evidence filed by Amar Lal, the plaintiff's witness, does not speak of institution of the suit and the authority of Shahid Waris to verify the pleadings and to institute the suit.
Learned counsel for the plaintiff in order to show that Shahid Waris was a duly constituted attorney invited my attention to the title of the plaint in which the name of Shahid Waris has been mentioned as Local Agent of the plaintiffs. I am afraid the mention of name of the said Shahid Waris as Local Agent of the plaintiff in the title will not be enough to show that the suit was competently instituted as the title of the suit can never be treated as part of the plaint as, for one thing, it is not covered by the verification appended at the foot of the plaint. This view finds support from AIR 1974 Allahabad 413 and was followed in the case of Ch. Sultan Ahmad through Legal Heir and others v. Salima Begum and others (PLD 1994 Lahore 111).
16. Upon the above discussion, I have arrived at the conclusion that the plaint was neither signed nor verified by an authorized person. The suit having not been competently instituted is liable to be dismissed.
Since the suit itself is found to be not maintainable, it is dismissed. There shall, however, be no order as to costs. .