1. FAISAL ARAB, J.--- The plaintiff performs the functions of receiving, storing, inspecting, handling, clearing forwarding and shipping rice for exports out of Pakistan, under contract, dated 12-11-1984.
2. The defendant No,2 was appointed by the plaintiff as handling agent for the rice crop of 1984-85 season at Bin Qasim Rice Godowns. As defendant No,2 failed to perform his work as per terms of the contract, his contract was cancelled on 16-2-1985. To ensure that the export of rice may not suffer and to minimize the losses, the work was got done through defendant No,3 who performed the work on ad hoc basis up to 16-7-1985. Thereafter, the plaintiff invited tender No,RECP-5/M&M/ 84-85 at the risk and cost of defendant No,2. It was stated in the Tender Notice that the successful bidder shall take over the stocks of rice of 1984-85 crop and the previous crops on the basis of book balance certified by the Reserve Stock Accounts of the plaintiff Corporation. With this pre- condition of accepting the stocks as shown in the account books duly certified by 'Reserve Stocks Accounts" the defendant No,1 and other handling contractors submitted their tenders. The defendant No,1 submitted unconditional offer to perform the work of handling at 75% above the rates quoted in Annexure-II to the Tender Form and Tender Notice. By another letter, dated 16-7- 1985, the defendant No,1 offered to perform the work at 71% above the rate quoted in Annexure-II to Tender Form. The terms and conditions remained the same as mentioned in the Tender Form and Tender Notice. The plaintiff Corporation accepted the offer of defendant No,1 vide letter, dated 16-7- 1985 on the same terms and conditions as stated in Tender No,RECP-5/M&M/84-85 submitted by the defendant No,
1. Thereafter the plaintiff and defendant No,1 executed contract dated 21-7-1985.
3. The defendant No,1 took over the physical possession of rice and other stocks and signed the check weighment certificate (C.W.C.) as an acknowledgment of the quantity of rice delivered to it. The defendant No,1 vide his letter dated 25-2-1986 admitted that a total quantity of 781,000 metric tons of 1983-84 and 1984-85 crops of rice has been entrusted to it of which 550,000 metric tons were exported. The defendant No,1 at no point of time disputed his obligations to render account for the quantity entrusted to it. However, defendant No,1 for the first time vide letter, dated 29-4-1986 disputed its obligation in respect of the balance stocks in its custody. The plaintiff Corporation vide letter, dated 11-8-1988 asked the defendant No,1 to transfer all stocks and stores to another Handling Agent Messrs Punjab Trading Agency. That defendant No,1 malafidely refused to act as per instructions given in letter dated 11-8-1988. The plaintiff vide letter, dated 15-8-1988 again requested the defendant No,1 to comply with the instructions as contained in the letter dated 11-8- 1988. The defendant No,1 vide his letter, dated 16-8-1988, while admitting that 55,000 metric tons rice is' lying in its custody refused to transfer it on the plea that he is not required to give physical delivery. The plaintiff vide its letter dated 28-8-1988 informed the defendant No,1 that since it refused to transfer the stock as directed, the plaintiff would get it done under the supervision of Messrs Inspectorate Pakistan (Pvt.) Ltd. an independent surveyor. Messrs Inspectorate Pakistan (Pvt.) Ltd., started work from 31-8-1988 for survey of the stocks entrusted to defendant No,1 but defendant No,1 did not depute his representatives. As per report of the Surveyor about 26925.4045 Metric Tons were found short in the stock entrusted to defendant No,1 against the Crop of 1984-85 for which defendant No,1 refused to render accounts. The market value of the stocks found short and was claimed at Rs,98,851,501.58 which defendant No,1 failed to pay. The defendant No,1 also failed to tender the account of 867,858 empty gunny bags valuing 8,317,029.82.
4. The defendant No,1 filed its written statement. After settlement of issues the matter was fixed for recording of evidence. On 4-2-2005 the notice of intimation was ordered to be served on defendant No,1 through substituted service. The notice was published on 10-3-2005 in Daily Jang, Karachi but defendant No,1 did not appear to defend the suit. The service was held good. On 21-11- 2005 this Court ordered to proceed against the defendant No,1 ex parte and directed the plaintiff to file affidavit in ex parte proof. One Mr. Liaquat Ali Khan Officer of the plaintiff has filed affidavit in ex parte proof. The claim of the plaintiff as stated in the affidavit has remained unchallenged. I find no legal infirmity in the claim.
5. The suit is, therefore, decreed in a sum of Rs,95,009,334.81 as prayed in the plaint against the defendant No,1 with costs together with 6% mark-up/equalizer from the date of filing of the suit till the recovery of the entire decretal amount.