1. ' MRS. QAISAR IQBAL, J.---The plaintiffs have filed suit of recovery of Rs,39,796,750,00 against the defendant.
2. ' Precisely, relevant facts forming the back ground of the case are that the plaintiffs are private company engaged in business of construction and contracting of various civil and specialized work entered, into an agreement with defendants/employers dated 16-2-1995, for civil construction of Raw Material Crusher, Raw Feeding Hopper, Clinker Storage, Cement Mill, Cement Silo, Pack House, Gypsum Crusher and Miscellaneous work amounting to Rs,138,144,214. Earlier, the Employers had called upon for the tenders and accepted the plaintiffs offer. Subsequently, on account of slow progress by the plaintiffs, the defendant delayed the payment of the bills in respect of civil works of defendant's PCL Line-2, whereafter a Memorandum of Understanding exhibit 5/3 was arrived at between the parties on 14-11-1995, whereby certain works were deleted, which were to be executed by the Plaintiffs for the defendants. It was also agreed in the MOU that bills submitted by the plaintiffs would be first verified by Alliance Consultants (Pvt.) Limited before release of the payments. The payment was duly made upto 12th running bill, exhibit 5/4, it is averred by the plaintiff that it submitted the 13th running bill which was scrutinized by the Consultant, who reduced the claim and recommended it for payment. The project was concluded in November, 1997, and according to the Plaintiff the final running bill dated 10-1-1998, for a sum of Rs,28,974 Million was not finalized. The plaintiffs contend that the defendants were also liable to pay the cost of 125 tons of steel purchased by the defendants from the plaintiffs for sum of Rs,1,250,000.00 and hence on account of non-payment of the bills, the plaintiffs addressed a notice dated 18-1-1999, calling upon the defendants to finalize the bill, which was not adhered to, therefore, the plaintiffs have resorted to file suit for recovery.
3. ' In the written statement legal objection was raised that the Board of Directors of the plaintiffs' company did not delegate power to any person for representing the company for filing the suit in Court of law nor any resolution passed by the Board of Directors has been annexed. It is averred that the plaintiffs did not complete the work within the stipulated period, executed work was unsatisfactory, the value of the project was deleted, final running bill was not recommended, and verified by the consultant, unverified bill furnished by the plaintiffs could not be the basis of the plaintiffs' claim. Also it is stated by the defendants that they have paid more than what was actually due.
4. ' On the pleadings of the parties following issues were framed by the Court:--
(i) Whether the suit has been filed by a. Person not authorized to do so?
(ii) Whether the work was not executed within the stipulated time if so, its effect?
(iii) Whether the work executed was not in accordance with the terms of the contract; if so, its effect?
(iv) Whether the plaintiff is entitled to recover any, amount, if so, how much?
(v) What should the decree be?
5. ' I have heard learned counsel appearing for the parties, scrutinized the evidence on record and my findings on above points are as follows:- Issue No,1 In this context admitted facts are that Echo West International (Pvt.) Limited is a company registered under the Companies Ordinance and the plaint on their behalf has been signed and verified by Muhammad Ehsan-ui-Haq as Chairman. It has nowhere been mentioned in the plaint as to how and in what manner he was legally authorized on behalf of plaintiffs to file the suit.
6. Perusal of the last/Vakalatnama part of the Court file shows that a letter head of the plaintiff bears minutes of meeting dated 9-3-1999 recording a Board Resolution, authorizing Mr. Ehsan-ul-Haq to file the present suit. But interestingly, there is no presentation date by the office of this A Court on this documents. Even along with affidavit-in-evidence filed by Muhammad Ehsan-ul-Haq, neither, articles of association of the company nor the Board Resolution has been filed to demonstrate the delegation of the power on behalf of company. Thus no cross-examination could have been conducted on the letter head bearing the so-called Resolution which was not exhibited in evidence.. Once an issue was consciously framed by the Court regarding the authority to file the suit, it was the duty of the Plaintiff to have produced/exhibited the same in evidence, failing which the said document could not be relied upon. The legal point as to non-conferment of proper authority on behalf of the company through Board Resolution in favour of a person who has prosecuted the suit on behalf of the company stands established by the case of Khan Iftikhar Hussain Khan v. Ghulam Nabi Corporation Limited PLD 1971 SC 550. In this case it was observed that on the facts of the present case, I am satisfied that due notice of the meeting was not given to the deceased appellant and therefore the Resolution passed in the meeting of 28th September, 1951 cannot be said to be a valid work. In my opinion, no valid authority was conferred on Mr. Khurshid Mehmood, therefore, he was not competent to institute the suit, I, therefore, hold that the learned trial Judge was perfectly justified in dismissing the suit on this ground.
7. ' The above rule was followed, in case of Dr. S.M. Rub v. National Refinery PLD 2005 Karachi 478..
8. In view of the above discussion, undisputed facts and legal position about non-conferment of authority on behalf of a B limited company, I hold that suit as instituted by Muhammad Ehsan-ul- Haq was not competent and was not maintainable in law. Issue No,1, is answered accordingly. issues Nos.2 to 4.
9. ' Plea of existence of agreement (Exh.5/2) between the employer and contractor ~ specifies for the construction . Amounting to Rs,138,144,214. The following are deemed to form and be read and construed as part of the agreement viz:--
(a) Instructions to Tenders.
(b) Form of Tender and Appendices. (a) Performance Bond.
(d) General Conditions of Contract.
(e) Special Conditions of Contract.
(f) Conditions of Particular Application.
(g) Specification.
(h) Bill of Quantities.
(i) Drawings.
(j) Addendum and Relevant Correspondence, and
(k) Letter of Intent.
10. ' Admittedly, on account of slow progress of the work, the payment of bills was delayed, whereafter the scope of work was reduced with mutual contract, through Memorandum of Understanding (Exh.5/3) signed by the parties as well as the Consultant, whereby the payments were to be released by the plaintiff. Conversely, learned counsel for the defendants has invited my attention to Exh.5/14 produced on behalf of the plaintiff pertaining to 13th running bill of the defendant's PCL Project which gives the following breakup of the total amount of Bill:--- 1.Value as per BOQ Rs.68,161,091.30 2.Extra Items: Rs. 402,577.51 3.Gross Bill value Rs.68,563,668.89 4.Less. Mob Advance in full Rs.20,721,632.00 5.Less Retention 5% Rs. 3,428,183.44 6.Less Cement and Steel Recovery Rs.20,671,700.00 7.Less Secured Advance Rs. 3,047,850.00 8.Net Bill Amount Rs.20,694,303.45 9.Payment recommended upto 12th BillRs.27,467,921.25 10.Net Payable Amount Rs. 6,773,617.80 ' The above is an admitted document, which manifestly shows that nothing was due and payable by the defendant upon the adjustment of mobilization advances, retention money, cement and steel recovery and secured advances. It is urged that on final scrutiny mobilization advance was required to be adjusted. The plaintiff did not challenge this 13th running bill.
11. ' I have considered the arguments advanced at bar.
12. ' Much of the emphasis has been laid by the learned counsel appearing for the parties on Exh.5/14.
13. Dr. Muhammad Farogh Naseem has contended that a document cannot be read in piecemeal.
14. Upon scrutiny of the 13th running bill, it transpires that Alliance Consultant (Pvt.) Limited did not approve the plaintiffs claim and upon adjustment arrived at the conclusion that nothing was outstanding. In fact this document shows an excess payment of Rs,6,773,617.80 having been made to the plaintiff. Much of the emphasis has been laid by Mr. Khawaja A. Bilal, learned counsel for the plaintiff with regards the admission by the defendant in para-4 of the written statement, contending that on account of this specific admission on the para of the defendants, the plaintiff is entitled to the relief claimed. Exh. 5/14 has to be read in evidence as per Article-72 of Qanun-e- Shahadat Order, 1984. Since written statement per se cannot be used as evidence, upon examination C of the concerned party in evidence, the documents produced have to be construed in the light of the' evidence adduced by the parties. In the case of Ahmed Khan v. Rasul Shah and others PLD 1975 Supreme Court 311 on the issue of admission of fact it is observed that admission of facts are only relevant and are not conclusive and therefore may be shown to be wrong. Evidence Act expressly provides that admissions are not conclusive proof of the matters admitted. Even if it amounts to clear admission, it will not bar a suit. Therefore, an admission, which is wrong in point of fact or is made in ignorance of legal rights, has no binding effect on the person making it. This is however, subject to two well recognized exceptions; First, such admissions become conclusive and are binding on a party making' them only, if it amounts to a representation on matter of fact made to the other party, who 'in consequence of such representation has altered its position. When admission is thus acted upon by the party to whom it is made it operates as estoppel and becomes in a way conclusive, inasmuch as the party making it is not then, permitted to show that the admission was wrong. ,Such admission is really hit by rule of estoppel in section 115 of the Evidence Act.
15. As a matter of fact, burden lies on the plaintiffs to prove the claim. Plaintiff in case of failure to discharge the burden D cannot take .Assistance from the weaknesses apparent in the defendant's case. In this view, I am fortified from the cases reported as Abdul Karim v. Mst. Kohi Noor Begum 1981 CLC 1055; Kabir Ahmed v. Saudabad Trust through Administrator Deputy Commissioner Officer, Karachi 2007 CLC 288; Messrs. Ainy Builders and Company Hyderabad v. Hyderabad Municipal Corporation, Huderabad 1997 MLD 732, wherein it is held that the pleadings cannot be substituted for evidence each party must succeed on its own case and could not rely upon the weaknesses of other 'side, pleadings could not be deemed to have been substituted for evidence or that no judgment or decree could be passed on the basis of weaknesses of the other side.
16. ' In case of Abdul Majid v. Syed Muhammad All Shamim 2000 SCMR 1391, it has been specifically laid down that pleadings are not evidence by themselves and statement of defendant in written statement cannot be used as evidence, when amounting to admission of the plaintiffs pleas without examination of the concerned party in its support.
17. It is a settled principle of interpretation of document that it shall be read as a whole and not piecemeal as laid down in the cases of Asad Waheed v. Khalid Perviz 2005 MLD 986 (ii) Pakistan Agricultural Storage and Services Corporation Limited (Passco) v. Qamar-ul-Islam 2005 YLR Lahore 879.
18. ' In this view of the matter, the admission of the defendant in para-4 of the written statement is not conclusively proved from the evidence led by the plaintiff. The entire case of the Plaintiff rests upon the 13th running bill (Exhs,5/14). A reading of this document on the whole belies the Plaintiffs claim in toto. On top of this, the said document i,e, Exhibit 5/14 is not challenged by the ,Plaintiff but rather it is admitted by the said Plaintiff. The plaintiff was required to prove its claim arising out of the 13th running bill, duly approved by the consultant of the employer. However, upon reading of the document as a whole, as already stated above, it transpires that upon adjustment of the various items nothing was due and payable by the defendant. Plaintiff had allegedly sustained loss of Rs,12,50,000 towards the cost of 125 tons of steel purchased for completion of the project.. Strangely enough in pares-7 of the plaint such averments were made without any proof. It is settled law that the suit for damages cannot be decreed without proof and every averment in the plaint has to be separately proved by evidence on each point. General, vague and scanty evidence in this regard cannot be relied upon. The damages F suffered and the quantity of the amount claimed item wise has to be proved by cogent evidence. Mere assertion in the plaint and repletion in evidence is of no avail to the plaintiffs. In this context repetition is placed on the following case law:-
(i) Nazir Ahmed v. Haji Nasir Ali 2006 MLD 907.
(ii) Messrs Taj Oil Industries Limited v. Messrs Bengal Oil Mills Ltd. 1990 MLD 877.
(iii) Messrs Muhammad Amin Muhammad Bashir Ltd. v. Messrs Muhammad Amin. Brothers Ltd. PLD 1969 Karachi 233.
(iv) Moin's (Private) Limited v.. Pakistan Television Corporation Ltd. Karachi (2001 MLD. 1065).
19. It is well settled principle of law that the party has to prove the factum as well as quantum of damages sustained, which has not been done in the present case. The plaintiff has G also suppressed material documents mentioned in Exhs.5/2 specifying general and special conditions of the contract. In the absence of cogent evidence that the employers failed to perform their duty under the contract upon the successful' completion of the project, documents mentioned in clause-II Exhs.5/2 were suppressed. The consultant under the standard procedure had deleted amounts in the 13th running bill, which were subsequently added by the plaintiff without any rhyme or reason to build up a claim of recovery against the defendant. It is also an admitted fact that the consultant did not verify the sum of Rs,12,50,000 for alleged procurement of steel by the plaintiff.
20. Such proof has not been produced by the plaintiffs witness Muhammad Ehsan-ul-Haq about the procurement. Of steel for the defendant. DW Abdul Hameed Gharana has specifically pointed out that despite the delay in completion of the work the defendant made the payment and only verified bills by. The Consultant could be entertained by the defendants. D.W.2 Muhammad Mansoor, Deputy Manager in Finance Department of the defendant company has materially stated that after adjustment of extra payment was confirmed, nothing was payable and plaintiff was liable to refund the excess amount. He deposed that plaintiff had violated terms of the condition of the contract dated 16-2-1995 for joint measurement of the executed civil work, therefore, the plaintiffs suit is not sustainable in law.
21. ' The so-called final bill i,e, Exh.5/15 has neither been verified by the Consultant nor proved by the plaintiff. Even the Consultant has not been joined as a party for any failure to verify or certify the bills.
22. ' Upon the analysis of the evidence adduced by the parties and the legal issues raised, I am of the view that the plaintiffs have failed to discharge the burden, are not entitled to recover the suit amount. Thus issues Nos.2 to 4 are answered accordingly.
23. No,5.
24. ' The upshot of the above discussion is that the plaintiffs suit filed against the defendant hereby stands dismissed with no order as to cost.