1. NADEEM AZHAR SIDDIQI, J.---The plaintiff has filed this suit for declaration and recovery of money.
2. The facts as pleaded in the plaint are that the plaintiff is a manufacturer of precision engineering products and supply such equipment all over the world and in this regard approached Royal Jordanian Air Force (RJAF) and while the negotiations were in progress with RJAF the defendant No,2 approached the plaintiff and requested him to appoint his company as its agent. The plaintiff has appointed the defendant as their agent through agency agreement, dated 23-11-1995 for a period of four years. The plaintiff in the meantime paid commission amounting to US$ 0.719873 million to the defendants. The defendants never revealed that under the Law of Agents and Commercial Brokers; 2001 published in newspaper, dated 16-7-2001 no such agency agreement is valid. The plaintiff coming to know of the legal position served a legal notice on the defendant on January 15, 2003 which was not replied. The plaintiff further submits that to avoid cancellation of the contract the plaintiff had to renegotiate and for the renegotiations had undergone an expense of US$ 50,000 and also had to reduce the price of goods already supplied and suffered a loss of US$ 2.6 million. The plaintiff has claimed that due to the acts of the defendants they suffered losses and claimed US$ 0.71987 million on account of commission paid to the defendants and US$ 15 million on account of additional expenses and damages.
3. The defendants were served by way of publication of summons in daily DAWN Karachi dated October 10, 2005 but no written statement has been filed and the defendants were declared ex parte on 28-11-2005.
4. The affidavit-in-evidence on behalf of the plaintiff was filed by Farooq Ahmed and Mir Shahid Saeed on 6-12-2006. Thereafter, another affidavit-in-evidence dated 25-9-2007 was filed by Farooq Ahmed. The plaintiff has also produced the Arabic text of Commercial Agents and Brokers Law No,28 of 2001, dated 16-7-2001 along with its English translation under statement dated 21-8- 2007.
5. In the affidavit-in-evidence of Farooq Ahmed the contents of the plaint has been repeated. In his affidavit-in-evidence Mir Shahid Ali has given the details of commission paid to the defendants.
6. The commission was paid from 1997 to 1999.
7. Learned counsel for the plaintiff submits that the defendants were appointed as agent and in spite of receiving the commission failed to assist the plaintiff in procuring more business and that the agency agreement was based on fraud and the defendants are liable to refund/return all the benefits acquired by them under the agreement. He further submits that under the Law of Jordan no agent can be appointed to sell weapons and spare parts to Jordan Armed Force. He further submits that all the losses sustained by the plaintiff were due to the misrepresentation of the defendants and at no point of time the defendants have informed the plaintiff regarding the law promulgated in the year 2001.
8. The learned counsel further submits that the plaintiff has produced sufficient evidence to prove that defendants approached the plaintiff and got themselves appointed as its agent and the plaintiff made payments to the defendants under agency agreement and that the claim of the plaintiff has gone unchallenged and un-rebutted as in spite of opportunity the defendants have failed to rebut the same.
9. The first agreement was executed between the parties on September 15th, 1993 for a period of two years. The second agreement was executed on November 23, 1995 for a period of four years and the third was executed on December 7, 1999 for a period of four years. The Commercial Agents and Brokers Law No,28 of 2001 was published on 16-7-2001. From the perusal of the law it appears that the same has no retrospective effect. From the evidence of Shahid Saeed it appears that all the payments on account of commission was paid in the years 1997 to 1999 and no commission was paid after promulgation of the above law. In absence of any specific evidence it is presumed that the commission was paid to the defendants on the contracts, which were entered into before the year 2001 when there was no prohibition of appointment of commercial brokers or agents. The plaintiff has failed to produce any agreement, which was executed after promulgation of the above law. Since all the payments were made before the promulgation of above law the plaintiff cannot claim refund of the commission paid by it to the defendants. The plaintiff has failed to give evidence that after promulgation of above law any agreement was executed between the plaintiff and RJAF through the defendants for which commission was paid to the defendants.
10. The plaintiff has also claimed that due to appointment of defendants as agents in violation of law has sustained loss on account of reduction in price and incurred expenses to renegotiate the agreement. The plaintiff has produced photocopies of two agreements. The first agreement is between the plaintiff and RJAF for Technical Cooperation for re-lifing of Super 530 F Sub Assemblies executed on February 28, 1997. The other agreement is between the parties in relation to the first agreement and was executed on January 15, 2001. Both these agreements were executed much before the promulgation of the said law. From perusal of the second agreement it appears that the price was reduced on account of the technical difficulties faced by RJAF in the equipment relifing at PEC/plaintiff and not on account of unauthorized appointment of agent. The plaintiff has claimed the damages on other accounts but no details have been produced and the plaintiff has failed to prove that due to appointment of defendants as their agent they suffered any loss and are entitled to damages. No doubt the defendants have not filed any written statement but the plaintiff can only succeed on the basis of merits of its case and not on the basis of weakness of other side. The fact that the suit has proceeded ex parte against the defendants did not give any right to the plaintiff to ask for a decree without proving its case. The plaintiff has failed to prove that the defendants have received any commission in violation of law or by practising fraud and has also failed to prove that the plaintiff has sustained any loss due to the acts of the defendants.
11. In view of the above this suit has no merit and the same is accordingly dismissed with no order as to cost.