This is a suit for recovery of a sum of U.S.$ 83,472.51 wherein the plaintiff has sought for a judgment and decree as follows:--
(a) In the sum of U.S. Dollars 83,472.51 on account of the compensation for the short-delivery/loss of 340 bags of sugar.
(b) Interest at 15% per annum from the date of the suit till' the realization of the decretal amount.
(c) Costs of the suit.
2. Brief facts giving rise to the filing of the above suit, as disclosed in the plaint, are that the plaintiff entered into a contract on 7-11-1979 with Messrs Commercial Sucres and Deurees, Paris which was also shippers and charterers for supply of 10,000 metric tons of white crystal and/or refined sugar.
Defendant No,1 acted as agent of the said charterers. After observing the usual formalities, the vessel "m.v. Kota Minas" left Pakistani shores and delivered the goods at the destination. As per survey report there was short delivery of 340 bags. The plaintiff, therefore, vide their letter dated 234-1980 put in claim for shortages and called upon defendant No,1 to satisfy the claim but defendant No,1 replied that the claim was not entertainable as it was not supported by Outturn Report and Short Landing Certificate of the K.P.T. Consequently, plaintiff sent KPT Short Landing Certificate in respect of 311 bags and explained that as the vessel was in custody of Martial Law Summary Military Court, the K.P.T. authorities were not in a position to issue final Short Landing Certificate for 340 bags. According to the plaintiffs, defendant No,1 again demanded the Original Bill of Lading and the plaintiff informed defendant No,1 that the said bill was submitted to defendant No,1 by the. Director General Food through plaintiffs' clearing agent, Messrs National Charcoal Company, Karachi. However, a copy of the bill was sent to defendant No,1 and a request was made for earliest settlement of the claim but the defendants failed to do so, hence the plaintiffs filed present suit for the reliefs as stated above.
3. After the institution of the suit, summons were served upon the defendants and defendant No,1 has filed written statement.
4. In the written statement, defendant No,1 denied to be the agent of the Carriers i.e, my Kota Manis.
It is averred that as the owner of the vessel has not been sued, as such suit against defendant No,1 alone in the capacity of agent is not maintainable as there is no private of contract between the plaintiff and defendant No,l. It is further averred that the vessel itself could only be sued under the Admiralty jurisdiction of this Court, as such the present suit having been instituted in the ordinary civil jurisdiction is not maintainable.
5. Defendant No,1 have denied that they are liable, to settle the claim of the plaintiffs and further averred that the plaintiffs have no locus standi to make such claim and file the present suit.
According to defendant No,1, in view of the final Outturn Report issued by the K.P.T. on 18-8-1980, the short-delivery if at all, was of 70 bags only and not 340 bags. It is further stated that K.P.T. was also a necessary party to the suit.
6. Vide order dated, 29-4-1994 passed in the suit, the following issues filed by defendant NO.1 were adopted:--
(1) Whether there is any private of contract between plaintiff and defendant No,1?
(2) Whether the entire cargo covered by the Bill of Lading in suit was not discharged from the vessel. If so, how many bags landed short from the vessel?
(3) What was the value of the short-landed bags?"
(4) Is the plaintiff entitled to the relief claimed, if so, against whom?
7. The plaintiff, in suppprt of its case has examined Manzar Saleem, as Exh.P.5 who is serving in the plaintiff corporation as Manager. He produced his affidavit-in-evidence as Exh.5. He also produced several documents as Exh.P.5/1 to Exh.P.5/36 in support of the plaintiff's claim details whereof are mentioned in para.10 of the affidavit-in-evidence and Short Landing Certificate as Exh.P.5/37. In his evidence he has almost reiterated the contents of the plaint. Plaintiff also examined witness Farooq Ali, Surveyor. He produced photocopy of Survey Report as Exh.6/1. The third witness examined by the plaintiff is-Shahid H. Hassan who produced his affidavit-in-evidence as Exh,8 and a letter dated 23-3-1995 as Exh.8/1 from the Embassy of Pakistan in France containing information that Messrs Company Commercial Surces Denrees ceased to exist. Plaintiff's last witness is Imdad Hussain Khoso who is serving in K.P.T. He produced Provisional Short Landing Certificate as Exh.9/1 and some other documents pertaining to K.P.T. as Exhs.9/1 to 9/5.
The defendant, in support of its version, examined Cyrus R. Cowasjee who is a Partner of defendant No,1 company. He produced his affidavit-in-evidence as Exh.11, photocopy of .Survey Report as Exh.12, photocopy of the Guarantee/Indemnity Bond allegedly furnished on behalf of the plaintiff, photocopy of letter dated 14-7-1980 issued by. Jalbhoy & Co., Clearing and Forwarding Agents. In his affidavit-in-evidence he has almost repeated the contents of the written statement filed by defendant No,
1. Another witness examined by the defendant is Ghulam Mustafa who is serving as surveyor in GB Potts & Co. (Pvt.) Limited who had conducted the survey.
8. I have heard arguments advanced by Mr. Samiuddin Sami, learned Advocate appearing for the plaintiff and Mr. Ghulam Abbasi Peshori, Advocate for defendant No,
1. After going through the evidence adduced by the parties and considering the arguments advanced by the learned counsel for the parties, my findings on the above mentioned issues are as under:- ISSUE NO.1.
The defendant No,1 has taken the plea that they are not the agents of the Carriers/Charterers, as such, there is no private of contract between the plaintiff and defehdant No,1. This plea of defendant No,1 is totally fallacious and belied by the documents produced during the evidence as Exhs.P.5/6, P.5/9, and P.5/27. These are the letters were written by defendant No, i themselves which they have sighed in the capacity of "Agents". On the face of these documents, defendant No,1 cannot deny that they had not acted as Agents of the Carriers/Charterers. The defendants were, thus, estopped from taking inconsistent pleas and different stands. This issue is, therefore, answered in affirmative.
ISSUE NO.2.
According to the plaintiffs, 340 bags of sugar were short-landed. On the perusal of evidence adduced .by the- plaintiffs on this point, I find contradictions even in the plaintiff's own evidence. In his affidavit-in-evidence, witness No,1 of the plaintiff states that in all there were 105,000 bags whereas in the cross-examination he deposed that the total number of the bags was 1,50,000.
Again in the cross-examination in reply to a suggestion, he stated that the plaintiff took delivery of 1,04,660 bags of sugar from Karachi Port Trust. Likewise witness No,2 of the plaintiff, has stated that he was present at the time of survey and has admitted that the consignee took delivery of 104930 bags but in fact there were 104660 bags bearing the marks and numbers. He has further stated, "the excess bags were on account of spillage due to tearing of original bags". Besides, witness No,4 of the plaintiff in his evidence has produced a document issued by the K.P.T. in respect of the short landing wherein the total number of bags was shown to be 105000 out of which 104689 bags were landed whereas 311 bags were short-landed but this document also contains a note to the effect, "241 bags spillage of sugar sweeping were refilled and collected by the party". If this document is taken as a whole, it means, according to the K.P.T. the short landed bags were 70 only.
On this issue, the defendant's witness namely Cyrus R. Cowasjee, who claims to be the partner of defendant No,1 company, in para.8 of his affidavit-inevidence has deposed, the short-delivery if at all was of 70 bags only."
After analyzing the evidence adduced on this issue by the parties, I have arrived at the conclusion that shortage in the delivery to the plaintiff out of the total consignment is of 70 bags of sugar. This issue is answered accordingly.
ISSUE NO.3 As per the contract entered into between the plaintiff and Messrs Company Commercial Sucres and Denrees, Exh.P.15-1, which is an undisputed document, the cost of one metric ton sugar was 421 U.S. Dollars and it has also come on record that each bag contained 100 Kg. of sugar, as such, the cost of one bag of sugar will come to U.S.$ 421. In view of this position, at the relevant time the cost/value of 70 bags of sugar if calculated at the above rate comes to U.S.$ 2947.
ISSUE NO.4 In view of my findings on issues Nos.1, 2 and 3 the plaintiff is entitled to the relief of getting the amount equivalent to the cost/value of 70 bags of sugar from defendant No,1 as they had acted as agent of the Carrier/Charterers as the principal ceased to exist long ago.
Having arrived at the above conclusion, the most important and controversial question which requires to be dealt with is, as to whether decree can be passed in foreign currency and, if so, whether it would be at the rate prevailing at the time of transaction or at the rate prevailing in the market on the date of the payment.
Learned counsel for the plaintiff in support of above assertion, relied upon the case-law reported as Terni S.P.A. v. PECO (Pakistan Engineering Company) Limited 1992 SCM R 2238. In this case it was observed by the Honourable Supreme Court as under: "Justice demands that the creditor should not suffer from fluctuations in the value of the Pakistani rupee. If his contract is for a foreign currency and he has bargained for the same, he should get that currency and no other."
It was further held: "We would, therefore, hold that where the money of account in respect of a contract is a foreign currency, or where it is not so but under the contract the particular amount claimed is payable in a particular foreign currency, and demand is made for payment is that foreign currency, the Pakistan Courts can give judgment in "so much of that foreign currency or the Pak rupees equivalent thereof at the time of payment". Here it must be stated that where the decree is in such terms, the language of the decree, as stated in para.18 above, would give the judgment-debtor the option to either make payment in foreign currency or in Pak rupees, and execution can always be taken out by the decree-holder if no payment is made by the judgment-debtor in respect of so many Pak rupees as equal the foreign currency at the rate of excharge prevalent on the date the payment is made."
In the case of Sandoz Limited and others v. Federation of Pakistan and others 1995 SCM R 1431 similar view was taken by the Honourable Supreme Court.
From the perusal of the very contract executed on 7-11-1997 (Exh.P.5/1), it reveals that the value/cost of the consignment was shown in U.S. Dollars and the plaintiff also demands that the decree, if any, should be passed in U.S. Dollars. In view of this, following the dictum laid down by the Honourable Supreme Court I hold that decree can be passed in foreign currency.
The upshot of the above discussion is that the suit of the plaintiff is decreed in the sum of U.S. $ 2947. However, defendant No,1 would be at liberty to make payment of the decretal amount either in U.S. Dollars or in Pak rupees equivalent to the decretal amount at the rate of exchange prevalent on the date of payment. The plaintiff shall also be entitled to the costs of the suit.