1. ' SYED HASAN AZHAR RIZVI, J.---The brief facts of the present case are that the plaintiff is a Consulting ,Engineer and was engaged by the defendant No,1 to provide consultancy services in connection with the work done in K.M.C., Districts South and West Karachi. An agreement dated 17- 10-1996 was executed between the parties, the defendant No,2 is the principal officer of defendant No,
1. The plaintiff rendered his services in terms of the aforesaid agreement and his performance was to the entire satisfaction of the defendants which were fully benefited. The total work done by the defendant No,1 was to the tune of Rs,28 crore and they also received payments from KMC from time to time for the said work. According to Clause 7.0 of the aforesaid agreement dated 17-10- 1996, the plaintiff was entitled to receive as his remuneration of 1.25% of the amount of the cheque paid to the defendant No,1 by KMC (for the said work), the remuneration of the plaint thus comes to Rs,35 lac in terms of the mutual arrangement. The plaintiff submitted his bills of remuneration to the defendant No,1 who did not pay the same to the plaintiff. The plaintiff sent legal notice dated 2- 5-1998 to the defendant No,1 demanding his remuneration; but the defendant No,1 vide its letter dated 4-6-1998 refused to make any payment, hence the plaintiff has filed the present suit before this Court with the following prayer:--
(i) "judgment and decree for Rs,35,00,000 against the defendants,
(ii) mark-up at the rate of 20% p.a. From the date of the suit till the recovery, of the decretal amount,
(iii) cost of the suit, and
(iv) any other relief which this Hon'able Court may deem fit and proper."
2. ' Summonses were issued to the defendants Nos.1 and 2 by this Court. Mr. Mahmood Ahmed Khan, Advocate filed vakalatnama on behalf of defendants Nos. 1 and 2 on 15-12-1998 in this case. On 9- 2-1999 defendants Nos. 1 and 2 filed their written-statements. The defendants did not deny the execution of the agreement with the plaintiff; but submitted in their written statement that the said agreement was subject to approval of defendant No,2 as the signatory to the agreement lack proper authority. The defendants stated that the plaintiff was never called upon, required or rendered any service for the defendants in terms of the agreement, the alleged agreement is without consideration as such no sanctity/validity. The defendants in their written statement have not denied that the amount received from KMC by the defendants for actual work done from time to time and that the defendants did not pay the amount to the plaintiff. The defendants further denied in their written statement that the plaintiff was/is entitled to receive any remuneration @ 1.25% which comes to Rs,35,00,000. It is also stated in the written statement that the plaintiff sent the bill which was/could not be considered by the defendants for having without any work/consideration. The written statement was signed by the Major Syed Ali Kausir Zaidi, OC, HQ 495 Engineer Group, said to be the authorized officer of the defendants; but no authority letter has been filed with the written statement. It has mentioned in the written statement that the same has been filed for and on behalf of the defendants; but neither the defendant No,2 signed the said written statement nor no any authority letter has been given by the defendant No,2 or any authority letter available on record whereby Syed Ali Kausir Zaidi, who signed the written statement on behalf of the defendant No,2. Along with the written statement a photocopy of a letter dated 21-10-1996 addressed to Mr. Nadeem Ahmed Ansari, consultant/plaintiff regarding the agreement dated 17- 10-1998 is enclosed as annexure A, whereas it has mentioned that "the contract was concluded with you for service of consultant for preparation and clearance of then bills against work done in KMC districts South and West Karachi. The same was process and has been objected by the audit department/higher authority and whereas under the provision of condition No,8.1, I have hereby informed you that the said contract/agreement is cancelled w.e.f 17-10-1996. It has interesting to note that no documentary proof to show that the said letter marked-A with the written statement to which mode the said letter was served upon the plaintiff. There is no acknowledgement of the plaintiff on the said letter and no proof of service of the said letter upon the plaintiff has been enclosed. On 1-11-1998 following issues were framed by the Court:--
(1) "Whether the claim is barred by time?
(2) Whether there was privity of contract between the plaintiff and the defendants?
(3) Whether the agreement dated 17-10-1996 was validly executed and is binding upon defendants?
(4) Whether the agreement dated 17-10-1996 was cancelled. If so what is its effect?
(5) Whether the plaintiff performed work/service under the agreement?
(6) Whether the plaintiff is entitled to receive any remuneration from the defendants? If so, how much?
(7) What should the decree be?
3. ' On 8-5-2003 Mr. Mahmood A. Khan, Advocate for the defendants filed C.M.A. No,2715 of 2003 under Rule 50 of SCCR (0.S) prayed therein to allow him discharge from appearing in the present suit as counsel for the defendants as his service was engaged for filing written statement and settlement of issues. ,Mahmood Ahmed Khan in his application that the requisite notice has already been served through courier service upon the defendants upon them. On 5-8-2003 the matter was fixed before the Court when Major Aamir Aziz (HQ, FWO) was present in Court and had no objection for discharge of Mr. Mahmood A. Khan, Advocate as their counsel, who had already been confirmed that they have already engaged Syed Tariq Ali, Federal Counsel. .
4. ' On 28-10-2003 evidence of the plaintiff/P.W.1 Nadeem Ahmed Ansari was recorded. On 31-5-2004 Mr. Shahenshah Hussain, advocate for the plaintiff stated that the plaintiff evidence has already.
5. Recorded and no further evidence was intended to be produced on behalf of the plaintiff, therefore, the side of the plaintiff was closedlnd the office was directed to fix the matter for defendants evidence. On 25-8-2005 evidence of D.W-1 Major Ahmed Naseem was recorded who produced only one document as Exh.6/1. On 22-2-2006 after giving several chances to produce further evidence of the defendant the Court closed the side of the defendants. The defendants filed C.M.A.
6. No,1846 of 2006 for opening the side. On 21-3-2006 the matter was fixed before the Court when the learned counsel for the plaintiff waived notice of the said application and stated that a fixed date may be given with direction that in case the defendants failed to appear and produce their witness then the side will be closed. On no objection of plaintiff's counsel the order dated 22-2-2006 was recalled and the defendants were directed to produce their witness on the next date positively. The witness Major Ahmed Naseem present in court had been informed that in case he failed to appear in Court on next date the side will be closed. On 29-4-2008 the matter was fixed before the Court and in presence of both the learned counsel Mr. Shahenshah Hussain and Syed Tariq Ali, both the learned counsel for the parties had pointed out that they had already produced their evidence and finally the side of the parties were closed. On the pointation of the learned counsel for the parties office was directed to fix the matter for final arguments. On 22-1-2009, the order sheet reflects that.
7. Mr. Shahenshah Hussain, learned counsel for the plaintiff submitted that the matter is pending for more than two years for arguments; but no-body on behalf of the defendants to argue the same and request that a 'short date was given. On 31-3-2010 none present for the defendants and at the request of the plaintiff's counsel the matter was adjourned to 4-4-2010 for final arguments. Again on that date none was present for the defendants, Mr. Shahenshah Hussain, Advocate for the plaintiff was present and the matter was adjourned to 25-5-2010 at 10-00 a.m. On 25-5-2010, I have heard Mr. Shahenshah Hussain, Advocate for the plaintiff and Syed Ahmed Ali Shah, Standing Counsel for the defendants.
8. ' Learned counsel for the plaintiff argued that a valid contract/agreement between the parties for payment of remuneration of the consultant as per clause 7.1 was duly executed on 12-10-1996 which is enclosed as annexure-A with the memo. Of plaint and the same has been signed by Brig.
9. Group Commander of Pakistan Army for HQ 494 Engineer Group, FWO, Karachi Cantonment and the same has been produced by the plaintiff's witness. As Exh. 5/1. It has further contended by the plaintiff counsel that the defendants have received the amount of Rs,20 crores from KMC; but have avoided/refused to pay the remuneration of the consultant @ 1.25% of the amount/cheque/paid to FWO for the work mentioned in clause 4.0 of the agreement. While Syed Ali Ahmed Shah, Standing Counsel has referred clause 4.0 and para-4 of the written statement and submits that no documentary evidence has been placed on record by the plaintiff. The subject agreement was without consideration and no cause of action has accrued for filing the present suit. In rebuttal thereof the learned counsel for the plaintiff urged that the agreement was valid, lawfully signed by the authorized person of the defendants who was the higher rank of Pakistan Army, Brig. Posted at HQ 494 Engineer Group FWO, Karachi Cantonment/defendant No,
1. The learned counsel for the plaintiff referred to examination-in-chief of P.W.1 wherein he stated the agreement was forwarded by the defendant No,1 to the defendant No,2.
10. ' My findings to the issues settled by this Court are as under:-- Issue No,1:- The defendants in their written statement took a preliminary objection that the suit is barred under Article 115 of the Limitation Act, whereby the limitation is three years. The learned counsel for the plaintiff referred the Article 56 of the Limitation Act which provided limitation for price of work done by the plaintiff for the defendants at his request, whether no time has been fixed for payment is for three years and it is started from the date when the work is done. The present suit has been filed on 27-10-1998, agreement was executed on 17-10-1996 and according to the defendants it was cancelled on 21-10-1996, in any case the suit has been filed within three years, therefore the suit has been filed within the statutory period of three years within the limitation period and the claim is not barred by time, therefore, I decide the issue in negative.
11. Issues Nos. 2, 3 and 4:- The issues numbers 2 to 4 are interconnected. The defendants have not denied the execution of the agreement/contract; but in their written statement stated that the said agreement was subject to approval of defendant No,2 as the signatory to the said agreement lack proper authority. On careful perusal of the said agreement produced as Exh. 5/1 it was signed by the Brig. Group Commander 494 Engineers Group FWO, Karachi of defendant No,1 and the plaintiff and it was not mentioned therein that the agreement was subject to approval of defendant No,2.
12. The defendants ought to have sent the said agreement for approval before the signing the said agreement to the higher authorities. Apparently it is well-established from the record available before the Court that the senior officer of the defendant No,1 had signed the said agreement and nowhere it has mentioned in that agreement the said agreement is subject to approval by the higher authorities/audit department of the defendants. It has further reflected from the record that the defendant No,2 is so neglected in defending the suit that he has not even signed the written statement filed on behalf of defendants on 9-2-1999 in the present suit nor he had signed the vakalatnama, which has been filed on 15-12-1998 by Mr. Mahmood A. Khan, Advocate on behalf of both the defendants. The said vakalatnama bears only the signature of Major, OC HQ 494 Engineer Group of defendant No,
1. No authority letter is available on record given by the defendants to the said Major who had engaged the advocate was filed vakalatnama in the present suit. It further reveals that Ahmed Naseem Hasan the Administrator and Legal Incharge of defendant No,1 who appeared as a witness for defendants did not file any authority letter authorizing him to appear before the Court to give evidence in the present suit. Even objections on engagement of the plaintiff raised by the higher authorities/audit department have not been produced during the evidence by the defendants. The clause 8.1 of the agreement/contract produced as Exh.5/1 no cancellation power is given to the parties. No prove of acknowledgement of unilateral termination of the agreement in the cancellation letter dated 21-10-1996 enclosed as annexure X/1 with the evidence of Ahmed Naseem Hasan the defendants' witness has been produced by the defendant.
13. The plaintiff on 11-5-1998 sent a legal notice through registered A/D post to the Group Commended of defendant No,1 which is as Exh.514. The defendant No,1 on 14-5-1998 sent a reply to the plaintiff counsel which is produced as Exh.5/3. Wherein it is stated that there is no provision for unilateral termination of the agreement. Moreover there was never any intimation to deprive claim of his dues. On 23-5-1998 the plaintiff's counsel sent reply to the letter dated 14-5-1996 of the defendant No,1 in response to the legal notice dated 11-5-1998 which is enclosed as Exh.5/2. The defendants' witness during his examination-inchief admitted that "the agreement was forwarded by the defendant No,2 to the audit office who raised objection on engagement of an outside consultant. In his cross-examination the witness stated that "I do not have with me the letter by which the agreement was sent to the audit department. I do not presently have any record to show the letter by which the agreement was cancelled---was sent to the plaintiff. Voluntarily states that dispatch register is maintained by the defendant No,1 and entry in respect of this letter may be available there. It is correct to suggest that the defendant No,1 was engaged by KMC for implementation of the subject work. It is correct to suggest that the total value of Rs,28 crore. It is correct to suggest that "there was no payment was made by the defendant No,1 to the plaintiff.
14. ' Mr. Shahenshah Hussain, Advocate for the plaintiff has referred section 3 of the Contract Act and has placed reliance upon the case-law AIR 1925 PC 232 and submits that for the revocation of the subject contract consent of both the parties is required and the contract could not be revoked/cancelled unilaterally and again could not be considered. In view of the aforesaid mentioned reasons it has held that there was privity of contract between the parties the agreement dated 17-10-1996 was unilaterally executed and it was binding upon the defendants and the defendants by letter dated 21-10-1996 they have failed to prove the same was delivered upon the plaintiff could not cancel the agreement dated 17-10-1996. Hence I decide the issues Nos.
15. 1 to 4 in favour of the plaintiff.
16. Issue No, 5:- According to the defendants, they hired the services of the plaintiff as consultant for preparation and clearance of their bills against works done in KMC, Districts South and West Karachi, and appointed the plaintiff as consultant and the plaintiff accepted the payment and agreed to provide consulting services for the work on the terms and conditions of the contract as Exh.5/1. On the remuneration mentioned as clause 7.1 of the agreement whereby the consultancy fee of the consultant mentioned in clause-4 of the said agreement shall be @ 1.25% and the amount of the cheque paid to FWO. The clause-3 of the agreement Exh.5/1 pertains to the obligation and liabilities of the consultant. During the evidence of the plaintiff he has stated that "it is correct to suggest that the defendant has not called the plaintiff for any service or consultancy at any time. Voluntarily says that I have rendered the service under Exh.5/1 from October, 1986 to June, 1987. It is incorrect to suggest that I am not entitled for Rs, 35 lac". While the defendant witness Ahmed Naseem Hasan has admitted in his evidence that "It is correct to suggest that defendant No,1 were engaged by KMC for implementation of the subject work. It is correct to suggest that total value of the contract was Rs, 28 crore. I do not know whether the amount of Rs, 28 crore was received by the defendant No,1 from KMC. It is correct to suggest that no feasibility report was required to be submitted by the plaintiff to the defendant No,
1. It is correct to suggest that the defendant No,1 has not asked the plaintiff to submit feasibility report. It is incorrect to suggest that the plaintiff is entitled to the amount of Rs,35,00,000. It is correct to suggest that no payment was made by the defendant No, 1 to the plaintiff". I have already held that the agreement between the parties dated 17-10-1996 was executed. The defendants' witness during his evidence admitted that the defendant No,1 was engaged by KMC for implementation of the subject work of the contract was of Rs,28 crore. The plaintiff has stated that the contract work/service under Exh.5/1 has already done from October, 1986 to June, 1987. The burden of proof with the work was not done upon the defendant who have failed to discharge the said burden. Even the defendants in their pleading or during their evidence have failed to mention who did the work/service in place of the plaintiff. In view of the aforementioned reasons I hold that the plaintiff performed work/service under the agreement.
17. Issue No,6:-The defendants witness has already admitted that defendant No,1 engaged by KMC for implementation of subject contract amounting to Rs,28 crore and according to the clause 7.1 of the contract/agreement Exh.5/1 the consulting fee of the consultant for the work mentioned in clause 4 of the subject contract shall be @ 1.25% of the amount of the cheque paid to FWO which amount according to the plaintiff comes to Rs,35 lac. The defendants have neither stated in their pleadings nor in their evidence that they have paid the said amount to any other person instead of the plaintiff. 1, therefore, hold that the plaintiff is entitled to receive the remuneration of Rs,35 lacs from the defendants in accordance with the clause 7.1 of the agreement/contract as Exh.5/1.
18. Issue No,7:- In view of the reasons already given and deciding the above issues Nos. 1 to 6, I hereby pass judgment and decree for Rs,35,00,000 in favour of the plaintiff and against the defendants.
19. The defendants are liable to pay the aforesaid amount to the plaintiff jointly and severally with mark-up at the rate prescribed by the State Bank of Pakistan from the date of the filing of the suit till realization of the whole decretal amount along with the cost of the suit.