' ZAFAR AHMAD KHAN SHERWANI, J.--- This is a suit mainly for recovery of Rs.37.8 million as damages against the defendants as the other reliefs as mentioned in the plaint have become redundant. It has been pleaded that the plaintiff had purchased 50400 dozens of quota for category 338 (Men cotton knitted shirts) from open market according to legally permissible practice. This transfer was made in the pass book of the plaintiff on different dates in the year, 1997. This quota was acquired by him for valuable consideration from transferees mentioned in the category pass book which was permissible under the law and the rules as well as under different SROs as mentioned in detail in the plaint, which need not to be reproduced for the sake of brevity. On 6-12-1997, the plaintiff agreed to transfer for valuable consideration 5000 dozens quota in the said category for export to the U.S.A. To Messrs Crescent Textiles Mills Ltd. Such transferee filled the prescribed form for the transfer of the said quota from tie pass book of the plaintiff to the pass book of Messrs Crescent Textiles Mills Ltd. And submitted to the defendant No.2 in accordance with the settled practice. The plaintiff also submitted a copy of his pass book to the defendant No.3 together with his quota pass book. The defendant No.3 on perusal of the quota transfer deed made an entry in the pass book of the plaintiff regarding transfer out of 5000 dozens by the plaintiff to the Crescent Textiles Mills Ltd.
But they refused to authenticate the said transfer. Similarly, the plaintiff also entered into a binding agreement for the transfer of 45400 dozens of the remaining quota to the recognized exporters but vide letter dated 7-12-1997 the plaintiff was informed by the defendants Nos.1 and 2 that no application for transfer out of the quota shall be considered by them. It has been pleaded by the plaintiff that since the quota entitlement of the plaintiff was a valuable property right, therefore, on account of the refusal by the defendants Nos.1 and 2 to authenticate the transfer out therefore, the quota expired at the end of the year, 1997 on account of which the plaintiff as well as the exchequer of the country suffered the loss, hence this suit.
2. The defendants Nos.1 and 2 filed their joint written statement in which a number of pleas were taken against the maintainability of the suit and the amount claimed by the plaintiff. It was also alleged that since the plaintiff had not made any representation to the defendants Nos.1 and 2 concerning various allegations made in the plaint and no notice in this regard was served, therefore, he is not entitled for any damages. It is, however, admitted that the plaintiff had attempted to transfer the quota in December i.e. Right at the end of the relevant year and since the plaintiff was on the check list of suspicious companies whose activities were being carefully monitored, therefore, the pleas averred by the plaintiff are misconceived and denied. It was prayed that the suit may be dismissed.
3. Out of the pleadings the Court framed the following issues:--
(1) Whether the plaintiff has any cause of action to file the present suit against the defendants?
(2) Whether the plaintiff has made any export since its registration as an Exporter?
(3) Whether the plaintiff is a genuine Exporter as envisaged under the Textile Quota Management Policy?
(4) Whether the plaintiff made any export in category 338 during the year, 1997 and earned entitlement of quota on the basis of past performance?
(5) Whether the plaintiff acquired the alleged quota in category 338 genuinely for valuate consideration?
(6) Whether the alleged transfer of quota by plaintiff to Messrs Crescent Textile Mills was a genuine transaction for consideration or otherwise?
(7) To what relief, if any, is the plaintiff entitled?
4. However, on 4-9-2006, the learned counsel for the parties submitted that the only issue now required to be answered is "Whether the plaintiff is entitled for any damages and if so, to what amount?" On this issue the parties examined their witnesses and produced the relevant documents before the Commissioner as per following details, plaintiff, Muhammad Ayub, Exh.1, Zahid Mukhtiar, Exh.2, Khalid Chaudhry Exh.3, Mushtaque Hussain Minhas Exh.4 and Ameer Jan, Exh.D.
5. I have heard learned counsel for the parties and perused the record.
6. It was contended on behalf of the plaintiff that since it has been conceded by the defendants by not pressing the other issues that the plaintiff had purchased the quota of 50,400 in Category No.338 for the year, 1997 from open market and had entered into an agreement with the exporters to transfer out the same and submitted such application in the prescribed form duly signed in by the parties on 27-12-2007 which remained unanswered till' the end of the year resulting expiry of the quota and loss to the plaintiff equivalent to the negotiated price of the quota therefore, he is entitled to claim the same as damages. He further contended that no doubt the plaintiff had submitted a transfer out form only in respect of 5000 dozens of the quota but since the defendants were not ready to allow the plaintiff to submit the application form in respect of the remaining quota of 45400 dozen which he entered into an agreement with Messrs Sangum Enterprise as per evidence on record which fact has also been admitted by the defence witness Ameer Jan, Director, TCD during the cross-examination by the plaintiff's counsel. As per this document, Exh.5/1 which is the office memorandum written by the witness, to the Ministry of Commerce, defendant No.1, the entire responsibility of the claim of the plaintiff had been taken on the shoulder, of the defendant No.2 therefore, the plaintiff is entitled to claim the damages for the entire quota of 50,400 dozens, irrespective of the fact whether the plaintiff submitted such application or not to the defendant No.2.
7. In rebuttal of the above arguments, the learned counsel for the defendants Nos.1 and 2 submitted that the plaintiff cannot claim any amount of damages towards 45400 dozens of quota which he allegedly sold .To Messrs Sangum Enterprise as he did not submit any prescribed form for the transfer out till expiry of the year. With regard to the admission of the responsibility by the Director of the defendant No.2, Ameer Jan, in his office Memorandum dated 26th June, 1999 Exh.5/1 he submitted that it was official correspondence between the defendants Nos.1 and 2, therefore the 'plaintiff cannot claim any benefit thereof. Even otherwise, the memorandum was a proposal which was not accepted by the defendant No.1, therefore, the plaintiff cannot take its benefit. In respect of the 5000 dozens of quota he submitted that no doubt such application was made for transfer out of the quota but since the plaintiff did not approach in this regard and did not make any representation with the defendants before the expiry of the quota, therefore, he committed contributory negligence and cannot claim any amount from the defendants as damages.
8. I have carefully considered the above arguments in the light of the record.
9. As apparent from the above facts there are two parts of claim of the plaintiff. One is in respect of 5000 dozens of quota sold to Messrs Crescent Textile Mills for which proper form was submitted by the plaintiff for transfer out with the defendant No.2 within the time and the other is for 45400 dozens of quota sold to Messrs Sangum Enterprise but no form for transfer out was submitted by him.
10. Coming to the first part of the claim. It is undisputed that the application form was not authenticated by the defendants and even no reply was submitted. If there was any objection of the defendant thereon at least it was required to be intimated to the plaintiff immediately, thus the defendants failed to perform their obligation on which account quota expired at the end of the year and the plaintiff was deprived of his finance and legitimate right to earn profit thereon. Hence, on account of breach of obligation which resembles those created by contract the plaintiff has been injured, therefore entitled for the damages from the defendants Nos.1 and 2 as provided under section 73 of the Contract Act. The defendants failed to produce any evidence that there was anything adverse on record against the plaintiff to legally deny his right of transfer out the quota; therefore, the defendants are responsible for the loss sustained by him.
11. With regard to the second part of his claim for the quota of 45400 dozens, since admittedly, the plaintiff did not submit any application for transfer out of the quota in favour of Sangum Enterprises as the same was submitted in respect of the Crescent Textile Mills and on that account the defendants cannot be held responsible for expiry of the quota. Mere some proposal of an official of the defendants namely, Ameer Jan, Director TCD as per office Memorandum, Exh.-5/1 to the defendant No.1, is not sufficient to hold that the defendants are negligent in performance of their obligation and therefore liable to pay damages for the loss sustained by the plaintiff. When the defendants have not committed any act in violation of their charter of obligations they cannot be penalized to pay damages for the loss sustained by the plaintiff for his own act of negligence. Had the plaintiff submitted the application form as prescribed to the defendant No.2, the situation would have been different if the same was not authenticated within the required duration. For these reasons the plaintiff is not entitled for the damages for this part of claim.
12. With regard to quantum of damages, the plaintiff had entered into agreement with Crescent Textile Mill Ltd. To sell the quota at the rate of Rs.750 per dozen as deposed by him in his affidavit- in-evidence and admitted by the defendants therefore, he is entitled for the cost of this part of the quota, the suit of the plaintiff is decreed as prayed for damages equivalent to the amount of Rs.750X5000=Rs.3,750,000 with mark-up at the Bank rate from filing of the suit till realization of the amount proportionate costs against the defendants Nos.1 and 2.