1. ' SAJJAD ALI SHAH, J.-This Letters Patent Appeal is filed against the judgment dated 2nd September, 1970 of learned Single Judge of this Court in Suit No, 679/1951 whereby the suit has been decreed for a sum of Rs, 1,84,620.59 in favour of the plaintiffs respondents.
2. ' Brief facts giving rise to this appeal are that Province of Sind filed a suit for recovery of Rs, 3,75,083- 4-5 from Messrs Haji Muhammad Zakaria & Company as damages for breach of contract. It is the case of the respondents that on 15-11-1948 the appellants entered into a contract with the respondents for purchase of 2700 tons of Muttar Dhal for export to destinations outside Pakistan at the rate of Rs, 34-4-0 per bag of 2i Mds. And it was stipulated in the contract that the stock was to be lifted by the appellants within two months. The appellants failed to take the delivery of the entire stock in spite of the fact that export permit was issued by the Central Government on 29th December, 1948 and the time for taking the delivery was also extended by the respondents from time to time at the request of the appellants. It is stated that the respondents lifted only 551 tons out of the entire stock of 2,700 tons as was originally contracted. The appellants were served with a notice on 14th May, 1949 to lift the remainder of the stock failing which the security deposit of Rs, 30,000 would be forfeited and the goods would be disposed of at their risk and cost, but they failed to comply with it. Another notice was served on the appellants on 13th August, 1949 but to no avail.
3. Consequently the remainder of the stock was sold by the respondents to Messrs Dinar Mills, Karachi at the rate of Rs, 174 per bag of 2i Mds. Resulting in total loss of Rs, 4,05,083-4-5. Notice was served by the respondents for payment of the loss amounting to Rs, 3,75,083-4-5 incurred after deducting the security deposit of Rs, 30,000 on the appellants on 12th January, 1950. Subsequently the suit was filed in the then Chief Court of Sind on the Original Side for the claim as mentioned above.
4. ' The case of the appellants in the written statement before the learned Single Judge was that such contract was executed between the parties but subject to the implied condition that valid export licence had to be simultaneously issued for export with the lifting of the stock. It was further averred in the written statement that time of two months was first the essence of the contract, which was however waived by the respondents for the reason that they had issued three export permits which were subsequently declared to be invalid by the port authorities. Breach of contract was imputed to the respondents on the grounds that valid export permits were ultimately issued by the Central Government very late and a small margin of time of about 10 days was available to the appellants to complete the contract in which the appellants succeeded in lifting only 551 tons and the reminder of the stock could not be lifted for the reason that new crop of Dhal had come to the Market for export at cheaper rates and also foreign countries of Ceylon and India, to which the appellants intended to export the stock, banned the import of the said stock for the reason that it was unfit for human consumption. The whole blame for creating these circumstances was thrown on the respondents. It was also asserted in the written statement that the appellants had filed a separate Suit No, 1000/ 1951 for recovery of the amount of Rs, 30,000 deposited as security with the respondents.
5. ' Both these cross suits were disposed of by consolidated judgment dated 4-9-1960 passed by learned Single Judge of this Court, whereby suit was decreed in favour of the respondents- Government for Rs, 2,44,725 with proportionate costs and interest at the rate of 6% per annum from the date of the suit until the payment and it was further held that the security deposited by the firm was not forfeited but was not refundable and was accordingly adjusted to reduce loss suffered by the Government, hence 'the amount of Rs, 30,000 as security deposit, was deducted from the loss of Rs, 2,74,725 on 2,700 tons, suffered by the Government and a decree for Rs, 2,44,725 was passed.
6. The determination of the quantum of damages was based by the learned Single Judge on the difference between the prevailing market price at that time and the contract price of the said commodity.
7. ' Against the judgment of the learned Single Judge as mentioned above two L. P. As. Were filed by the present appellant as Nos. 19 and 20 of 1960, out of which one was against the impugned decree and the other against the dismissal of suit for refund of Rs, 30,000, the amount of security. Both these L. P. As. Were disposed of by a consolidated judgment dated 5-2-1964 by Letters Patent Bench of this Court, whereby the decree of the learned Single Judge was modified and decretal amount was reduced to the extent of Rs, 54,971 for the reason that the damages should have been awarded after exclusion of 551 tons of Muttar Dhal, delivery of which was admittedly taken by the appellants, hence the damages should have been awarded for not lifting 2149 tons rather than for not lifting 2700 tons on difference between the market price and the contract price. The learned Judges of the Letters Patent Bench did not agree with the learned Single Judge in awarding interest at the rate of 6% per annum from the date of the suit until payment and set aside the decree on that limited score and further ordered that the respondents would be entitled only to proportionate costs of the suit.
8. ' Subsequently two appeals for special leave were filed in the Supreme Court against the appellate judgments and decrees in the two counter-suits as mentioned above and by judgment dated 16th May, 1969 in Appeal No, K-84/1964 which was against the decree of Rs, 2,44,725 against the appellants impugued judgment and decree were set aside and the case was remanded to the Single Judge for determination of question of quantum of damages on the evidence already on record and on such further evidence that the parties may like to adduce. The other appeal with regard to the dismissal of suit for recovery of amount of deposit was dismissed. In the context of remand of the case for determination of quantum of damages, it is necessary to reproduce the relevant portion from the judgment of the Supreme Court as under :- "The learned counsel for the appellants has pointed out that the price offered by them was on the basis that the goods were to be exported out of Pakistan. He has also drawn or attention to the fact that the contract clearly provided that any dell damaged by rain would be excluded (see Exh. 13 at page 159 of the paper book). In the present case no evidence has been laid by the respondent- Government to show as to what was the market price of the goods in question for export on the date when the breach of contract took place. The fact that there was a difference in the price in the market rate for local consumption and for export has been admitted by P. W. 1 Dost Muhammad who was examined by the respondent-Government. He has stated in his evidence that the goods in question were sold to the appellants for purposes of export and therefore the Government were able to get higher price than that which could be obtained for them in the open market of the country. The learned Judges of the Letters Patent Bench have noticed this evidence but have discarded the same as D. W. 1 Dad Mohd, a clerk of the Karachi Grain and Seeds Merchants Association who was examined by the appellants, stated that he was not aware that there was difference in the rate of the mutter dall meant to be sold in the country and meant to be exported out of the country. We have already noticed that the respondent-Government claimed damages on the basis of re-sale. We are unable to accept the finding of the learned Judges of the High Court that the evidence of P. W. 1 with regard to the difference of price between the market rate for local consumption and the market rate for export, was of no consequence. In or view the question of quantum of damages has not been satisfactorily dealt with by the Courts below."
9. ' After remand of the case the learned Single Judge of this Court allowed further evidence to be recorded as requested by the parties and on behalf of the Government Mr. Dost Muhammad, who was then Senior Assistant in the Food Department in Government of Sind in 1949 was re-examined.
10. The appellants examined Mr. Muhammad Hanif, the Manager of Haji Muhammad Zakaria 9f the plaintiff-arm and an Muhammad partner of Naz Company. The evidence thereafter was reconsidered in compliance with the directions of the Supreme Court, as stated above for determining the quantum of damages. The learned Single Judge has held in the impugned judgment that the Government is entitled to the compensation of Rs, 1,84,620/59 for not lifting 23,639 bags at the rate of Rs, 17.81 per bag of 2} mds. On the basis of difference between the contract rate and the export rate of the Muttar D.I.. Further the learned Single Judge has ordered that amount of Rs, 30,030 which was deposited as security is to be deducted from the above amount and consequently a decree was passed in favour of the respondents with proportionate costs and interest from the date of decree until the payment.
11. ' We have heard the learned counsel appearing for each side. The only question which remains to be decided on the basis of evidence brought on the record is as to what is the correct basis for determination of quantum of damages. As pointed out earlier the Supreme Court has held. That there was evidence on the record with regard to the export price of the commodity in question at the time of breach of contract, which was not considered by the erstwhile letters Patent Bench of this Court, hence the case was remanded for consideration of the same after the parties were allowed to adduce the additional evidence. There is no dispute between the parties with regard to the time of breach of contract which is June, 1949. Evidence brought on the record is now to be assessed in order to find out as to what was the export price of the commodity in question in June, 1949. Evidence brought on the record is now to be assessed in order to find out as to what was the export nice of the commodity in question in June 1949. The difference between the export price at that time and the contract price is the formula according to which the quantum of damages is to be determined. The evidence produced by the appellants on this point is furnished by Muhammad Hanif and Jan Muhammad. Muhammad Hanif is Manager of appellant firm and has deposed after the remand of the case that local market price of the commodity in question was about Rs, 28 per bag of 21 Mds. And they had purchased at the rate of Rs, 34/4 for the reason that it was to be exported to the foreign countries. It is further stated by him that the possible export markets for Muttar Dhal at that time were India, Goa, Columbo, Bahrain and Singapore. He produced two telegrams dated 27-9-1949 and 4-7-1949 from Ikramullah, a grain merchant of Goa which showed that price in Goa of Muttar Dhal in June, July 1949 ranged between Rs, 39 to Rs, 40 per bag of 21 mds. He also produced a copy of the newspaper "Hindu" published from Madras on 25th August, 1949, which indicated that the price of the commodity in question was Rs,
45. The telegram are Exhs. 7 and 8 and the copy of the newspaper is also on the record. The learned Single Judge in the impugned judgment has given valid reasons for no accepting this evidence for the reasons that the telegrams were inadmissible because the contents thereof could not be proved unless the sender o telegrams was examined in the Court which was not done. Likewise the copy of the newspaper was also rejected and rightly so for the reason that it was produced without examining any witness. Witness Muhammad Hanif has further stated that in the months of June, July and August, 194 the local market rate of Muttar Dhal at Karachi was Rs, 25 per bag. He has further stated that if the consignment of goods commanded an export permit then the local market rate would rise by Rs, 10 to 15 per bag. In the cross-examination this witness has admitted that he had no personal knowledge with regard to the details of the transaction in question so at that time he was not in the employment of the said firm. He has admitted that in the year 1948-49 he was running a Cigarette wholesale shop and was not in grain business. It appears from his evidence that he has not been able to say categorically as to what was the export price of the commodity in question at the relevant time. There is no evidence to support his contention that local market price of the commodity of Rs, 25 per bag would be enhanced by Rs, 10 to 15 if there was export permit available for that consignment. This evidence is certainly not satisfactory. The other witness produced by appellants is Jan Muhammad who has deposed that he is in the business as broker in grain and seeds since 1947-48. He further stated that in Karachi there is a Grain and Seeds Merchants Association which published reports on the market rates of grain and seeds. He has also stated that he knew personally that if consignment of grain commanded an export permit the market rate of the consignment would be increased by as much as Rs, 15 to Rs,
20. He has given details of the commodity of `Kangni' rice and `Joshi* rice and produced reports Exhs. 10, 12, 13, 14, 15 and 16. Firstly these reports relate to another commodity which is rice and secondly they relate to a different period of time. Exb. 10 relates to the year 1969. Exh. 11 is an entry in the note book. Exhs. 12, 13, 15 and 16 all relate to different months in the year 1969. This evidence does not show or help in coming to the conclusion as to what was the export price of the commodity in question in June, 1949. Before the remand of the case, the appellant bad examined Dad Muhammad who was a clerk in Karachi Grain and Seeds Merchants Association. He testified about the method of collecting information from different brokers with regard to the rates of the commodity, which were subsequently tabulated and published as reports. He stated that on 15-1-1949 market rate of Muttar Dhal was Rs, 95 to Rs, 105 per unit of 8 Mds. This again does not show the export price of Muttar Dhal at the relevant time, i,e, June, 1949. Market Price for local consumption is different from export price which is slightly higher. The next witness examined on behalf of the appellants before the remand of the case is Muhammad Unus who is a partner in the appellant firm. He has given the details of the transaction in question and his conversation with Director of Civil Supplies in that context. The evidence of this witness is also of no assistance so far the point relevant for consideration with regard to the export price in June, 1949 is concerned. On the other had here is evidence produce by the respondent-Government and Mr. Dost Muhammad was examined on their behalf before the remand of the case on 13-8-1959. This witness is from the Department of Civil Supplies at the relevant time and was working in that Department as Senior Assistant. He claimed to have knowledge of the transaction in question. Apart from other details which he has given on the said transaction, he has categorically stated that 700 tons of Mutter Dhal from the same stock was sold by the Government, to Saz & Company in June, 1949 at the rate of Rs, 26-7-0 per bag of 2i Mds. He has further stated that in June, 1949 one Jafri offered to by Dhal similar to the Dhal in suit at the rate of Rs, 26-6-0 per bag of 2i Mds, but his offer rejected and the earnest money was refunded. About the former transaction of sale of Muttar Dhal to Saz & Company, he has stated that the stock was not lifted by that party. He has deposed about this transaction after referring the record of the Department. The transactions mentioned above have not been challenged and there is no evidence on record in rebuttal of these assertions. This witness was again examined after the remand of the ease on 23-12-1969 and has reiterated the sale of Muttar Dhal to Saz & Company for the purpose of export at the rate of Rs, 26-7-0 per bag of 2i Mds. He has further stated that subsequently tenders were invited for the sale of Muttar Dhal and the highest tender was for Rs, 16.6 per bag of 2} Mds. And by way of negotiations tender of Messrs Dinar Mills was accepted at the rate of Rs, 17 per bag. From the whole evidence brought on the record on this relevant point with regard to the export price of the commodity in June, 1949, the evidence produced by this witness Dost Muhammad appears to be the only evidence which answers the question as to what was export price of Muttar Dhal in June, 1949 and since sale to Saz & Company was proposed to be made at that relevant time from the same stock at the rate of Rs, 26-7-0 per bag of 2i Mds. This appears to be correct basis for determining the quantum of damages on the difference between this export price and the contracted price in respect of the consignment in question. The learned Single Judge has rightly held that the damages are to be calculated on the basis of the difference between the export price at the rate mentioned above and the contract price. This finding is very much consistent with the evidence on the record. We find no reason whatsoever to disagree with the finding of the learned Single Judge on this point.
12. ' It has been pointed out to us that in accordance with the basis for calculating the damages as mentioned above the learned Advocates appearing for the parties in the suit were called upon to work out the actual figure of damages on the basis of formula mentioned above but somehow inadvertently the final amount of damages awarded to the respondents appeared to be Rs, 1,84,620.59, which in fact should be minus Rs, 30,000 the amount of security. Even in the decree the amount of damages awarded appears to be Rs, 1,84,620.59. It is very clear in the impugned judgment of the learned Single Judge that this amount of Rs, 1,84,620,59 has been worked out at the rate of Rs, 7.81 per bag of 2i Mds. As difference between the market price mentioned above and the contract price of the commodity in question on 23639 bags and the amount of Rs, 30,000 which was deposited as security had to be deducted from Rs, 1,84,620.59 and after deduction the decretal amount comes to Rs, 1,54,620.59. The intention is very clear and mistake appears to be typographical which is hereby rectified and we hold that there are no reasons for interference with the impugned judgment which is upheld with modification that the decretal amount is reduced to Rs, 1,54,620.50 as is originally intended in the impugned judgment. The decree is to be issued with proportionate cost and interest from the date of decree until payment as held in the impugned judgment.
13. ' Appeal is dismissed with costs.