1. SYED PIR ALI SHAH, J.---This is a suit for recovery of Rs,32,42,457 filed by the plaintiff above named against the defendants with the following prayer.
2. ' The plaintiff claims from the defendants a sum of Rs,32,42,457 as on 27-11-1997 along with markup/profit at 22% per annum from 27-11-1997 till realization and costs of the suit.'
3. ' The facts of the case as per contents of plaint are that the plaintiff is statutory Corporation having head office at Balaka Bhoban, Dhaka, Bangladesh and its branch office at Avari Plaza, Hotel Avari Towers, Shahrah-e-Faisal, Karachi. The defendant is sole proprietor of Messrs Fly World Travels had been appointed by the plaintiff as an agent through a passenger Sales Agency agreement and consequently a Certificate of Appointment (Passenger) dated 7-3-1993 was issued. The original appointment vide letter dated 26-4-1992 was for air passenger transportation only with effect from 2-4-1992 on provisional basis. Soon after the defendant defaulted in payment of Rs,49.0 lacs for which he issued an undertaking on a non-judicial stamp paper duly attested by a Notary Public on 27-9-1993 saying that he shall return the loan at the rate of Rs,25,000 fortnightly i.e, Rs,50,000 per month and a fresh Bank Guarantee for Rs,5.0 lacs was issued by Rupali Bank Ltd. Karachi. That there were further defaults in payment by the defendant for sale of the tickets of the plaintiff for passengers and the plaintiff was constrained to send a letter dated 24-1-1994 to the defendant. It was agreed to release stocks of blank tickets upto the value of Rs,5.0 lacs only on close sector basis, as per requisition. The defendant again defaulted in repayments of the arrears of payment for passenger tickets. The plaintiff wrote a letter dated 12-2-1996 to the defendant and pointed out that in the month of December 1995 and in January 1996 the defendant had not paid fortnightly sum of Rs,25,000 and a sum of Rs,75,000 was due on account of agreed payment scheduled relating to the arrears which was stated to be Rs,49.0 lacs in the undertaking dated 27-9-1993. The plaintiff sent another letter dated 2-4-1996 to the defendant stating therein that a sum of Rs,4,98,325.60 had not been paid by the defendant. The defendant wrote a letter dated 6-6-1996 to the plaintiff and in response thereto the plaintiff wrote a letter dated 22-8-1996 to the defendant who acknowledged receipt thereof. This letter was for the purpose of releasing blank Biman tickets stocks to the defendant with the condition that payment of Rs,30,000 as monthly instalment against old arrears (instead of earlier specified monthly instalment of Rs,50,000) will remain mandatory and that such payments must be made by the 15th of every month. The defendant vide letter dated 22-8-1996 agreed on the conditions of plaintiff's letter dated 22-8-1996. That for the fresh tickets no payment is due but for the old arrears a sum of Rs,32.65 lacs was due on 27th November, 1997. In that respect a statement showing previous default amounting Rs,49.0 lacs was prepared which has also been mentioned in undertaking dated 27-9-1993 and it lists the amounts deposited by the defendant with the plaintiff in part payment on different dates for the period from 1st to 15th February, 1994 till 1st to 27th November, 1997 and the statement shows the balance due at the end of November 1997 as Rs,32.65 lacs. Out of this the amount of surrendered issued tickets worth Rs,36,914.40 was refundable by the plaintiff to the defendant and the defendant was to pay to the plaintiff Rs,17,128 on account of short collection leaving a net amount of Rs,19,786.40 and also a sum of Rs,2,756.60 was excess received out of the Bank Guarantee of Rs,5.0 lacs furnished by Rupali Bank Ltd, and a total of this comes to Rs,22,543. This figure will have to be deducted from Rs,32.65 lacs giving the net due figure as Rs,32,42,457 which is claimed by the plaintiff from the defendant.
4. ' The defendant filed his written statement and raised certain objection to the maintainability of the suit i.e, the suit is defective for non-joinder and mis-joinder of parties as one Mr. Richard Can, citizen of China, Md. Jabed Hossain and Sohel Hossain, citizens of Pakistan were partners of Messrs Fly World Travel. The suit is barred by estoppel, waiver and acquiescence and by Limitation Act.
5. That the Court has no jurisdiction to hear the suit as the head office of the Bangladesh Biman is at Balaka Bhaban, Dhaka Bangladesh who had approved the appointment of the defendants firm Messrs Fly World Travels as agent of Biman. The defendant denied the allegations made against him and further added that the defendant is not a sole proprietor of Messrs Fly World Travels and it is a partnership concern and that the plaintiff is not agent of plaintiff at Karachi as a person. The plaintiff appointed Messrs Fly World Travels a partnership concern as agent vide letter dated 26-4- 1992 for air passenger transportation with effect from 25-4-1992 on the provisional basis. The defendant was not actually defaulter for depositing sale's proceed to the plaintiff while without giving any statement of accounts, Mr. Kazi Nooruddin, Country Manager, Bangladesh Biman, Karachi, Pakistan requested the defendant to make undertaking of Rs,49 lacs and further requested the defendant to pay Rs,50,000 per month and a fresh Bank Guarantee for Rs,5.0 lacs on condition to supply the full statement of accounts was given to the defendant upto August, 1989 to 30th September, 1993. That the defendant never defaulted in payment. It is stated that the plaintiff fraudulently prepared so-called undertaking on 27-9-1993 but the Magistrate signed on 14-9-1993 before executing the undertaking by the defendant. That the defendant in good faith put his signature on the undertaking on condition to supply the statement of accounts i.e, how much tickets have been given and sale proceeds have been deposited, how much 9% Commission on the sale proceed and special 2 1/2% Commission over selling of Rs,5.0 lacs have been and how much refund tickets value. The plaintiff did not supply the statement of accounts as a result the defendant stopped payment and demanded the statement of accounts from August 1989 to September 1993. The plaintiff did not supply the same to the defendant with ill motive. That the statement made is misleading and imaginary statements and hence denied by the defendant. The plaintiff tactfully avoided to show the actual number of surrendered issued tickets which was refundable by the plaintiff to the defendant. If the plaintiff supplied the detail statement from August 1989 to September 1993, how much tickets were issued and number of surrendered issued tickets, how much sale proceeds deposited and how much Commission have given to the defendant. The plaintiff wrote a letter on 22-8-1996 to the defendant for release of revenue documents. Plaintiff was also told that any deviation of the condition laid down in the said letter will result discontinuation of defendant's business with the plaintiff and no tickets stock will be released to the defendant. That with collaboration of Rupali Bank Ltd. Karachi the plaintiff invoked the second Bank of Rs,5,00,000 Guarantee received by the said Rupali Bank Ltd. Though pay order No,736425/97/1605 which amount was transferred into the current account of the plaintiff on 27-12- 1997 without consent of the defendant. The plaintiff did not disclose the period of defaulted amount of Rs,49 lacs even the forced undertaking does not show anything in this regard. The plaintiff adjusted part payment of Rs,15.75 lacs from the alleged outstanding balance. That the plaintiff had appointed Messrs Fly World Travels a partnership concern as an agent having its head office at Balaka Bhaban, Dhaka, Bangladesh and defendant's address is also of Bangladesh as such this Court has no jurisdiction. The plaintiff sent a statement of realization details of defaulted money Rs,49,00,426/52 of Messrs Fly World Travels without signing any authority, show that upto February, 1994 an amount of Rs,49,00,426/52 is due to the defendant for payment to Bangladesh Biman Corporation is incorrect. They conceived the defendant to deposit the sales proceed to the plaintiff in cash which was received by Mr. Istaque Ahmed, Asst. Accountant and Mr. Mehar Ali, accountant through katcha receipt and all katcha receipts will be accounted for and shall be regularized in the statement of account which the defendant believed in good faith. That taking advantage of the defendant's good faith Mr. Istaque Ahmed, Mr. Mehar Ali and other officers of the Bangladesh Biman, Karachi in collusion filed this false suit against this defendant to save their skin. That Bangladesh Biman Corporation has instituted a petition case being No,3192/93 dated 12-8-1999 in the Court of Chief Metropolitan Magistrate, Dhaka, Bangladesh under sections 409/418/ 420/425 of Bangladesh Penal Code against this defendant has also instituted a petition case being No,3692/99 dated 16-9-1999 in the same Court under sections 420/418/ 409/109 of Bangladesh Penal Code against Mr. Istaque Ahmed Asstt. Accountant, Bangladesh Biman and others, which is now under investigation. That the defendant requested the plaintiff repeatedly to supply the detail statements of business transaction, caused enmity and they forced the defendant to leave Karachi within 24 hours, his life became so threatening that the defendant had to leave Karachi at dead of night, leaving behind his entire properties and was issued threats of dire consequence on visit to Karachi, Pakistan. That the defendant is not in a position to appear personally before this Court due to danger to this life in Karachi. The plaintiff has failed to submit the details of business transaction in between the plaintiff and defendant to ascertain the actual position of the accounts.
6. ' In this case plaintiff side examined their witness Muhammad Nazimuddin on 13-2-2007 at Exhs.5 who produced the documents as Exh.5/1 to 5/11. The witness was, however, directed to produce the originals of Exh.-5/1 on the next date.
7. ' On 2-10-2007 as none-appeared the side of the plaintiff was closed and the matter was adjourned for the evidence of the defendant side. On future dates of hearing viz. 30-10-2007 and 8- 11-2007 no appearance whatsoever was made from the defendant side and ultimately defendant side was closed and matter was fixed for final arguments.
8. ' On 1-4-2008 learned counsel for the plaintiff came forward and argued the matter finally.
9. ' In this matter written statement was filed by the defendant side wherein legal pleas have been taken which have been reflected in the shape of issues as detailed below.
10. ' I have heard the learned counsel for the respective parties and gone through the case file.
11. ' From the pleading of the parties, following issues were framed.
(1) Whether the suit is not maintainable in its present from?
(2) Whether the suit is barred by estoppel, waiver or acquiescence?
(3) Whether the suit is time barred?
(4) Whether the plaintiff has no cause of action?
(5) Whether this Court has no jurisdiction?
(6) Whether the defendant was agent of plaintiff as sole proprietor of the concern or as a partner of the firm?
(7) Whether the defendant defaulted in payment?
(8) Whether the defendant is liable to pay the arrears to the plaintiff if so, how much?
12. ' ISSUE NOS.1 TO 3: ' These issues are legal issues relating to the maintainability of the suit in Its present form and the suit is barred by estoppel, waiver or acquiescence and by limitation as well. Accordingly these issues are discussed and decide jointly. It has been pleaded by the defendant side that the suit is defective of necessary parties as Mr. Richard Can; citizen of China, Md. Jabed Hussain and Sohel Hossain, citizens of Pakistan were partners of Messrs Fly World Travels.
13. Obviously Mr. Richard Can is citizen of China and Mr. Sohel is citizen of Pakistan were partners of Messrs Fly World Travels but they have not been made party to this suit. Although they were necessary parties for the proper adjudication of the matter. They being the B partners of Messrs Fly World Travels legally should have been made parties being citizens of Pakistan. The plaintiff have met Hameedul Islam son of Mubarak Ali, proprietor of Messrs Fly World Travels, the only party in the suit for recovery of Rs,32,42,457 ignoring partners of the firm. Nothing has come on record that the partnership of Messrs Fly World Travels was ever since has been dissolved. In these circumstances, it is concluded that the suit filed by the plaintiff in its present form is not maintainable and the same is time barred so also barred by law of estoppel and waiver and acquiescence issues Nos.1, 2 and 3 are answered accordingly.
14. ' ISSUES NOS.4 & 5: ' From defendant side it has been pleaded that the plaintiff does not have cause of action and the Court has no jurisdiction to hear the suit as the head office of the Bangladesh Biman is situated at Balaka Bhaban, Dhaka, Bangladesh who had approved the appointment of the defendant's firm Messrs Fly World Travels as agent of Biman Bangladesh. It has mentioned that the defendant is not a sole proprietor of Messrs Fly World Travels. It was a partnership concern. Defendant was not an agent of the plaintiff at Karachi as a person. The plaintiff had appointed Messrs Fly World Travels a partnership concern as agent vide letter dated 26-4-1992 for air passenger transportation with effect from 25-4-1992 on the provisional basis. It has also mentioned that the defendant was not actually defaulter for depositing sales proceed to the plaintiff. Without giving any statement of account, Mr. Kazi Nooruddin, Country Manager, Bangladesh Biman, Karachi Pakistan requested the defendant to make undertaking of Rs,49 lacs and further requested the defendant to pay Rs,50,000 per month and a fresh Bank Guarantee for Rs, 5 lacs on condition to supply the full statements of accounts i.e, how much tickets were given, how much sale's proceed was deposited by the defendant and how much Commission was given to the defendant up to August 1989 to 30th September, 1993.
15. ' In these peculiar circumstances, the plaintiff failed to show any proper legal cause of action for filing of this suit, which c is beyond the territorial jurisdiction of this Court. Both these issues are decided in affirmative.
16. ' ISSUES NOS.6, 7 & 8 ' It has been pleaded that the defendant was agent of the plaintiff being sole proprietor and that the defendant defaulted in payment of money and he is liable to pay the arrears to the plaintiff. I have already decided issues Nos.1 to 5 that the plaintiff suit is not maintainable in its present form and suit is barred by law of estoppel, waiver and acquiescence so also barred by law of limitation.
17. It has been discussed above that the partners of the firm have not been made party to the suit which has only filed against the defendant whose status was as proprietor of the firm. It has already been discussed above that the partners of the firm which were not dissolved and they have been ignored though residing in Pakistan. In this case plaintiff's witness was not produced for his cross examination and the plaintiff's side failed to produce original of Exh.-5/1 i.e, the agreement and further that the evidence was not lead by the defendant, it is difficult to fix responsibility of payment and conclude that who is the defaulter in making payment of amount. Issues Nos. 6, 7 & 8 are decided accordingly.
18. ' In view of my findings on issues Nos.1 to 8, the suit of the plaintiff is neither maintainable nor sustainable in the law on the contrary the suit filed by the plaintiff is hit by law of Limitation, Estoppel and is beyond the territorial jurisdiction of this Court. Conclusively, it is determined that the suit of the plaintiff D fails and the same is accordingly dismissed with costs.