' ANWAR ZAHEER JAMALI, J.---This first appeal under section 9 of the Banking Tribunals Ordinance, 1984 is directed against the judgment and decree dated 14-12-1991 passed by the Chairman, Banking Tribunal for Sindh and Balochistan at Karachi in Suit No,696 of 1991, whereby the suit of the appellant-Bank was decreed to the extent of Rs,24,90,033 with costs and future mark-up from the date of the suit till its payment.
2. The facts leading to this litigation are that on 19-8-1989 appellant-Bank had filed suit for recovery of Rs,31,03,436 against the respondents, based on bunch of documents referred in para.9 of the plaint. The claim of the appellant in the suit regarding liquidated damages was solely based on the terms of the loan agreement executed between the parties.
3. After service of summons of the suit the respondents failed to respond and consequently on the basis of averments made in the plaint, which were unified on Oath and have remained unrebutted and unchallenged, the suit of the appellant was decreed in the above terms, thereby disallowing their claim of liquidated damages.
4. Mr. Abdul Haleem Siddiqui, learned counsel for the appellant vehemently contended that since the suit before the Banking Tribunal, has proceeded ex parte, therefore, no proper opportunity was afforded to the appellant-Bank to prove their claim of liquidated damages against the respondents. On the basis of such submission he further contended that in all fairness it is a fit case where the impugned judgment to the extent of non-awarding the liquidated damages be set aside and the case be remanded to the Banking Tribunal/Banking Court to decide the question of liquidated damages afresh after affording full opportunity to the appellant-Bank to prove the claim of liquidated damages against the respondents. To fortify his submission in this regard learned counsel has placed reliance upon section 74 of the Contract Act and further referred the case of Messrs Khanzada Muhammad Abdul Haq Khan Khattak & Co. v. WAPDA through Chairman WAPDA and another 1991 SCMR 1436. In this case the Honourable Supreme Court of Pakistan after dilating upon the scope of section 74 of the Contract Act and holding that liquidated damages are not to be awarded against the defaulting party to the contract as punishment has approved the view taken by the High Court, which reads thus:- "The whole principle of the law which emerges from the various authorities quoted above is that the parties who entered into a contract no doubt expected that the contract would be carried out, but they also contemplated the possibility of the contract not being carried out and provided for such a case. If in making provision for breach of the contract the promisee stipulates from the promisor, on the breach only for such condition as the Court would deem reasonable in the circumstances, then there is no penalty and the stipulation is not penal but if, on the other h and the Court would, on a proper consideration come to the conclusion that the stipulation was put in not by way of a reasonable compensation to the promisee but in order that by reason of its burdensome of oppressive character, it may operate interrorem over the promisor so as to drive him to fulfil the contract, then the stipulation is one by way of penalty. Applying this provision, it is obvious that the amount stipulated for the two works reasonably was pre-estimate of the loss which could have accrued due to the breach of the contract. The works in groups 'A and B' both were for the accommodation of the staff concerned with the main project of Tarbela Dam and in this period if the staff was to be accommodated by alternate arrangement it positively put the defendant under the huge financial loss, and on the question where a sum stipulated to be payable under a contract is liquidated damages or penalty, the appropriate tests have been worked out in a number of leading cases, and they are conveniently brought together that measure of damages in a case of breach of a stipulation and assessing the Court has, subject to the limit stipulated, jurisdiction to award compensation in case of breach of contract, as unqualified except to the maximum stipulated, and section 74 of the Contract Act undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract, whether, or not actual damages or loss is proved to have been caused by the breach.
Thereby, merely dispenses with proof of actual loss or damages. It does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted, because compensation for breach of contract can be awarded to make good the loss or damage which naturally arose in the usual course of things, or which the party knew they made the contract to be likely to result from the breach. In the agreement, in the instant case, the plaintiff was also entitled to a bonus of Rs,1,000 for each calendar day not exceeding 30 calendar days by which the actual completion date in respect of group 'A' works preceded the contract completion date, and Rs,500 for each calendar day not exceeding 30 calendar days, by which the actual completion date in respect of group 'B' works preceded the contract completion date in respect of group 'B' works."
5. We have carefully considered the arguments advanced by learned counsel for the appellant and have also gone through the case-law referred by him. The issue regarding awarding of liquidated damages to a party has been debated and scrutinized in several judgments of the superior Courts. In the case of Messrs HITEC Metal Plast (Pvt.) Ltd. v. Habib Bank Limited PLD 1997 Quetta 87, with reference to the interpretation and applicability of sections 73 and 74 of the Contract Act when this controversy came up for consideration before a learned Division Bench of Quetta High Court, following observations were made therein:-- "General principle for granting compensation when beneficiary alleges breach of contract; are obviously regulated by sections 73 and 74 of contract Act. Evidently without proving actual loss, even fixed amount stipulated for liquidated damages does not become automatically payable.
Record manifestly displays that respondent-Bank has not adduced an iota of evidence suggesting quantum of actual losses suffered by reasons of default on the part of appellants. We, therefore, feel that demand for specified liquidated damages by creating liability through forced finance account against the appellant was not justified."
6. In another judgment passed in the case of Saudi Pak Industrial and Commercial Investment Company (Pvt.) Ltd. v. Allied Bank Limited 2003 CLD 596 earlier case-law on the subject was again thoroughly examined by the Honourable Supreme Court of Pakistan and it was held that the liquidated damages required positive evidence to show that such actual loss was suffered by the party claiming the damages and mere fixed amount stipulated as liquidated damages would not be recoverable if the quantum of actual loss was not proved.
7. A perusal of averments made in the plaint of present case reveals that the whole claim of the appellant-Bank regarding liquidated damages against the respondents was based on the breach of the terms of loan agreement which provided clause of 20% liquidated damages as consequence of breach of such agreement. Indeed the learned counsel for the appellant would have been justified in seeking remand of this case on this account if, there had been any assertion made in the plaint about the nature of losses or actual damages suffered by the appellant-Bank due to non-fulfilment of obligation by the respondent or violation of the terms of the loan agreement executed by the respondent in favour of the appellant-Bank, but it is not so. The law is well-settled on the point that a party cannot be permitted to lead evidence beyond its pleadings and even if some evidence is recorded beyond the pleadings or contrary to the pleadings same cannot be looked into or considered for granting any relief (See: 1987 CLC 158 and 1998 CLC 1017).
8. Keeping in view the ratio of judgments in the case of Saudi Pak Industrial and Commercial Investment Company (Pvt.) Ltd. (supra) and the fact that the whole claim of the appellant-Bank regarding liquidated damages urged in the plaint is based only on the breach of the terms of the loan agreement and no other particulars of any actual losses or damages have been unfolded in the plaint no fruitful purpose will be served in setting aside the impugned judgment and remanding the case to the Banking Court for affording further opportunity to the appellant-Bank to prove such claim, which has not been specifically pleaded in the plaint. We have carefully gone through the impugned judgment and seen that while passing the decree in favour of the appellant, non-awarding of claim of liquidated damages, which was solely based on the breach of terms of the loan agreement, was fully justified. If any further case-law is needed to amplify this view reference may be made to the case of Habib Bank Ltd. v. Farooq Compost Fertilizer Corporation Ltd.
And 4 others 1993 MLD 1571.
9. For the foregoing reasons we find no substance in this appeal, which is accordingly dismissed.