' ZAFAR AHMED KHAN SHERWANI, J.--- This is a suit for recovery of Rs,17,40,000 with 22% mark-up from the date of filing the suit till its realization coupled with Rs,10 million as damages with the mark-up at the similar rate for the same period and for injunction against the defendant to restrain him to create third party interest in the factory office and house owned by him till the plaintiff recovers the decretal amount.
1. The case of the plaintiff, in brief, is that he is a businessman so also the defendant who approached him to enhance liquidity of his business, on which he agreed. Therefore, different agreement were executed between them in between 27-3-2002 to 3-3-2004 whereby different sums were invested in the business of the defendant. Finally on 5-2-2005 an agreement was executed between them whereby he invested Rs,1.5 million with him through Cheques Nos.0923885 and 0923886 drawn with ABN AMRO Bank for period of 12 months. As per clause (4) thereof the defendant was to pay Rs,2,40,000 in four equal instalments and the first instalment of Rs,60,000 become due on 5-5-2005, second on 5-8-2005, third on 5-11-2005 and last on 5-2-2006, but he failed to do so. On account of this the plaintiff suffered not only financial loss but also received mental shock for which he is liable to pay damages of Rs,10 million. He also alleged that defendant had been trying to sell his moveable and immovable properties and also trying to create third party interest therein to usurp his amount, hence this suit.
2. The service of summons upon the defendant was effected through publication of the same in the daily Jang, dated 4-10-2006, which was accordingly held good vide order, dated 26-2-2007, consequently it was ordered that the suit was to proceed ex parte.
3. The plaintiff filed his affidavit in ex parte proof and reiterated his claim and allegations made in the plaint which have been referred to above. He has also produced original documents photocopy of which were produced along with the plaint, which include eight agreements of investment dated 27-3-2002, 15-4-2002, 24-6-2002, 10-9-2002, 20-11-2002, 1-3-2002, 3-3-2004, 5-2-2005 and cheque dated 15-2-2006 of Rs,15,00,000 (Rupees fifteen hundred thousand only).
4. I have heard the learned counsel for the plaintiff and perused the record.
5. The suit of the plaintiff is based on his two types of claims one i,e, amount of Rs,17,40,000 the amount invested by him in the business of the defendant including the amount of Rs,15,00,000 (Rupees fifteen hundred thousand only) paid through cheques Nos.0923885 and 0923886 vide agreement dated 5-2-2005 plus the amount of Rs,2,40,000, which he agreed to pay vide clause (4) of the agreement in four equal instalments of Rs,60,000 each. The plaintiff in his plaint as well as in affidavit in evidence has deposed that the defendant failed to pay the amount of profit as per agreement and also failed to return the original amount. The above allegations have not been denied by the defendant as no written statement was filed after the service; therefore, there is no other way, but to accept the claim of the plaintiff.
6. However, the question of damages of Rs,10 million as prayed by him on account of failure of the defendant to fulfil his commitment has not been substantiated. Mere assertion that on account of such act of the defendant he has suffered serious shock and mental torture, agony cannot be sufficient to grant the damages.
7. It has been held in the case of Azizullah v. Javed Bajwa reported in 2005 SCM R 1950... That the Court must determine proper damages keeping in view the nature of the wrong done and loss caused to such person. Similarly in the case of Dr. Prof. Haroon Ahmed v. Messrs British Airways reported in PLD 2004 Kar. 439, it has been held that ... Damages are usually considered under two heads viz. General or non-pecuniary loss or damages i,e, physical injury, pain and sufferings impaired capacity for the enjoyment of life or lesser capacity and special or pecuniary damages that are actual incidental and direct expense capable of calculation in terms of monetary value may it be on account of medical treatment loss in business profit earning or otherwise and the burden of proof in an action for damages either general or special is always on the plaintiff...
8. On careful consideration of principles laid down in the above cases it is observed that the plaintiff was required to prove the damages sustained by him on account of default committed by the defendant towards fulfilment of his commitment, but he has not given any detail in this regard.
On one hand he claims mark-up at the rate of 22% whereas on the other hand he is also claiming the amount of Rs,10 million as damages with the similar rate of mark-up, but in my view until unless the plaintiff specifically proves such damages through some tangible evidence he will not be entitled for any such decree by this Court.
9. In view of the above discussion I hold that the plaintiff is entitled for the decree of Rs,17,40,000 (Rupees seventeen hundred forty thousand only) with the mark-up at the Bank rate with effect from the filing of this suit till the amount is realized, with costs. .