KHALID ALI Z. QAZI, J. --- Plaintiff has filed this suit against the defendant for recovery of Rs 96,21,273.82 with mark-up at the rate of 14% per year from the date of suit till recovery of suit amount with costs.
2. The brief facts of the case are that initially the plaintiff in the suit was Rice Export Corporation of Pakistan Limited which was merged with the Trading Corporation of Pakistan whose name was substituted vide order dated 23.1.1994 by filing amended title of the plaint on 22.2.1994. On 14.12.1990 the suit was filed against Riayast Hussain, Sole Proprietor of Ad/s Bahri Enterprises, who died during pendency of the suit and his legal heirs/defendants Nos. (1) to (7) were brought on record and made parties to the suit vide order dated 28.1.2000.
3. It is further added that on 21.9.1988 the plaintiff invited tenders for handling of rice 1988-89 crop at their godowns located at Qasim Rice Godowns vide tender notice dated 21.9.1988 (Ex.5/1).
Amongst others, the deceased defendant submitted his tender for the same at 98.68% above the scheduled rates, which was accepted by the plaintiff vide its letter dated 18.2.1989 (Ex.5/2) and a formal contract dated 21.2.1989 was executed between the parties. It is pertinent to mention that Clause (6) of the Contract (Ex.5/3) provides that the contract shall supplement the terms and conditions published in the tender notice (Ex.5/1), list of requirement (declaration) Annexures I & II, Tender Form Annexure-Ill with schedule of rates and contract are filed as Annexures VI & V of the contract and shall bind the contractors. The one of the mandatory terms of the contract was that defendant had to make solemn declaration and the earned wages of the labourers which has been claimed under the bill have already been fully paid and no labour's dues or outstanding alongwith certificate from C.B.A. To the same effect in accordance with Clause 14(d)(i) to (iii) of Annexure III. It was further pleaded by the plaintiff that right from the date of execution of contract the deceased defendant failed to perform his part of contract as per terms and conditions of Agreement. The workers/labourers engaged by the deceased defendant made number of complaints to the plaintiff vide their letter dated 28.3.1989 (Ex.5/4-a), letter dated 2.4.1989 (Ex.5/4- b) and letter dated 4.4.1989 (Ex.5/4-c) but the deceased defendant despite plaintiffs letter dated 3.4.1939 (Ex.5/4-c) and letter dated 6.4.1989 (Ex.5/4-d) failed to pay wages of its labourers. It appears that in order to safeguard the interest of all the parties and with the consent of deceased defendant, it was decided that disbursement of wages to the defendant's labours should be made in presence of plaintiff's representative (Ex.5/5). It is alleged that due to non-payment of labours' dues by the deceased defendant, the deceased defendant's labours went on strike on 6.8.1989, however, on the assurances of the plaintiff that the payment of their earned wages will be made to them by 8.8.1989 they resumed the work, which wages were paid accordingly by the plaintiff on behalf of the deceased defendant. The transporters of the deceased defendant had also stopped working on 7.8.1989 due to non-payment of their dues, which payment were also made by the plaintiff on behalf of the deceased defendant to them. It was further stated that on or about 6.8.1989 plaintiff came to know that deceased defendant had made false declaration about the payment of wages to his labour and inspite of request the deceased defendant failed to submit any evidence to the effect that the payment claimed in the bill has been paid to the labours. It was further stated that the performance of deceased defendant was unsatisfactory and as such plaintiff vide letter dated 6.8.1989 (Ex.5/6) served notice under Clause 16(a) of Annexure-III of the contract to the deceased defendant notifying its intention to terminate the contract solely at the risk and cost of the deceased defendant. The plaintiff vide its letter dated 17.8.1989 (Ex.5/7) had cancelled the said contract dated 21.2.1989 at the risk and costs of the deceased defendant.
Thereafter plaintiff invited fresh tender for handling the rice crop 1988-89 at Qasim Rice Godowns at the risk and cost of plaintiff and awarded the contract on 14.1.1990 to M/s. Punjab Trading Agency It is alleged that due to breach of contract by deceased defendant who failed to perform his part of work at Qasim Rice Godown, plaintiff have suffered a loss of Rs. 12,805,880.82 as per details given below:---
(i) Transporter charge paid to Rs. 16,500.00 Haji Muhammad Javed as per order of Hon'ble Wafaqi Mohtasib
(ii) Loss on account of Rs. 9,922,500.00 increase in rate of difference of contract of Qasim Rice Godown 117.45% 98.68 = 9.45%
(iii) Paid to labours on behalf of Defendant in excess
(iv) Demurrage charges (Pakistan Railways)
(v) Cost of 500 bags (basmati),
(vi) Paid to M/s. Brinks
(vii) Demurrage charge (PQA)
(viii) Demurrage charges (Pakistan Railways)
Total: Rs. 2,501`,88425 Rs. 556.00 Rs. 12,628.40 Rs. 4,368.40 Rs. 329,548.37 Rs. 17,895.80 Rs. 12,805,880,82
4. It is further added that after adjustment of the amount of the deceased defendant's security deposit of Rs. 24,00,000/- and retention money of Rs. 768,107/- total amounting to Rs. 3,168,107/- against the afore-said plaintiff's sum of Rs. 12,805,880.82, a total sum of Rs. 9,637,773.82 is due and payable by the defendant(s) to the plaintiff.
5. The defendant filed his written statement on 18.11.1991 and admitted the contents of Paragraphs 1 to 4 of the plaint. As regards to the contents of Para-5 of the plaint it was submitted that plaintiff had themselves started payment of the earned wages of the labourers to them directly, as such the contents of this para are denied. It was further pleaded that on 6.8.1989 there was no strike of labour and moreover the responsibility of the payment of `labour was taken by the plaintiff as such the responsibility of the payment by the defendant does not arise. The defendant also denied that any declaration given by the defendant was false as the same was made on the basis of the payment made by the plaintiff that was a standard requirement for audit purposes and had been submitted for evidence which was submitted by the defendant in normal course in good faith. It was further added that since no payment was outstanding the declaration could not be false particularly when the payment was made by the plaintiff. It was further pleaded by the defendant that the plaintiff cancelled the contract of the defendant mala fidely without any just cause, for which defendant filed representation with the Wafaqi Mohtasib (Ombudsman) which was pending adjudication. It was further pleaded that the plaintiff has wrongly deducted the security deposit and retention money for which the representation of the defendant is pending before the Wafaqi Mohtasib. It was also pleaded that plaintiff has suppressed the material facts and the correct position was that the plaintiff was taken over the payment of wages at godown in cash themselves despite the defendant's protest vide letter dated 27.5.1989 to follow the usual system of payment by cross cheques in favour of the defendant. It was further urged in the written statement that the plaintiff vide letter dated 3.6.1989 confirmed the continuation of new system of cash payment direct at godown under supervisions of plaintiff officials and thereby modified the terms and conditions of the contract and the prevailing system of payment. This system put the defendant to heavy loss and damages to business reputation and of over Rs. 2,50,00,000/- and completely disturbed the defendant organizational set up. It was further stated that the work commenced with effect from 24.2.1989 to the entire satisfaction of the plaintiff and in accordance with the terms and conditions of the contract. It was also stated that during the whole period of working not a single default of work had ever been pointed out and not a single warning or penalty as per terms and conditions of the contract has been imposed. It was further pleaded that plaintiff's action in cancellation of contract was not only illegal but also mala fide. After illegal cancellation of contract plaintiff should have given the work to the next higher bidder, who had competed with defendant and quoted Rs.
101.00, but instead of doing so plaintiff had awarded the contract to another party on an increase of Rs. 20/- (Rs. 118/-) for about Rs. 10,00,000/- tones against originally a sealed rate of Rs. 104/-. It was further stated that the amount of Rs. 1,27,89,390.82 claimed by the plaintiff is completely baseless and false. Defendant has claimed Rs. 2,40,42,816/- against the plaintiff before the Wafaqi Mohtasib.
6. Upon pleadings of the parties, following Issues were settled by this Court on 26.1.1992:---
(1) What was the effect of the arrangements made by the plaintiff for payment of the wages of the labourers directly to the labourers employed by the defendant?
(2) Whether the defendant had made any false declaration about payment of wages of the labourers as stated in para-9 of the plaint? If so what is its effect?
(3) Whether the defendant committed any breach or default of the contract?
(4) Whether the plaintiff has suffered loss as stated in para 12 of the plaintiff and whether the defendant is liable for the same?
(5) Whether the plaintiff was justified in cancelling the contract of the defendant and not awarding the same to the next higher bidder who had offered the rate of Rs. 101/-?
(6) Reliefs.
7. This Court vide order dated 2.5.2002 appointed Mr. Jameel Ahmed, Advocate as Commissioner to record the evidence of the parties and parties were directed, inter alia, to produce documents and affidavit-in-evidence before the Commissioner.
8. The plaintiff filed the affidavit-in-evidence of his witness Muhammad Atiq Khan alongwith the documents viz. Ex.P-5/1 to Ex.P-5/.14 to substantiate its claim. The defendants and their counsel have chosen to remain absent and did not produce their evidence.
9. The defendants notwithstanding to the notice issued by the !Earned Commissioner did not appear before him and their side was closed. The learned Commissioner has submitted his report dated 6.1.2004, which report is taken on record and the matter was listed for final disposal.
However, this Court in the interest of justice issued summons/notices to the defendants which were published in Daily Dawn and Jang dated 6.4.2007 and 7.4.2007 respectively. The defendants Nos.
1(1) to 1(7) appeared through their Advocates and the Court was allowed the defendants to cross- examine the plaintiff's witness on his affidavit-in-evidence. Despite sufficient opportunities provided to the defendants they have failed to cross-examine the plaintiff's witness and their side for cross-examination was closed vide order dated 22.9.2008 and the matter was adjourned for recording evidence of the defendant. Thereafter the case was again fixed for recording of the evidence of the defendants on 29.10.2008 but the defendants remained absent and even did not file affidavit in-evidence on their behalf. However, last chance was given to defendants and the case was adjourned to 13.11.2008 but the defendants failed to attend the case and to record their evidence, as such, their side was closed on 13.11.2008.
10. I have heard Mr. Safdar A. Syed learned counsel for the plaintiffs, perused 'the record and relevant case-law. The defendants and their counsel have chosen to remain absent.
11. Since all the Issues are inter-connected, therefore, I deal with them jointly. My findings on the above Issues are as under.
12. After presentation of the plaint in the Court, it was thoroughly checked and then was admitted as required under the law. According to material available on record the instant suit has been filed by a duly authorized person of the plaintiff, which owned by the Federal Government. The plaint has been signed and verified on oath by S.M. Humayun Akhter, Technical Director of the plaintiff, who has been authorized for the purpose as required under the law. The facts submitted in the memo.
Of plaint has been confirmed by PW-1 in his evidence Ex.P/5, which has not been rebutted by the defendants and the evidence of the said witness remains unchallenged.
13. The deceased defendant in Para-13 of his written statement had made misleading and false plea that he has claimed Rs. 2,40,42,816.00 against the plaintiff before the Wafaqi Mohtasib. The plaintiff pursuant to the order of this Court dated 13.12.2004 produced the order of Wafaqi Mohtasib dated 1.6.1992 whereby the Wafaqi Mohtasib had only observed that the claimant (deceased Defendant) if so desire, he may taken up his claim against RECP in a Court of competent jurisdiction", but no claim was filed by the deceased defendant against the plaintiff. The said order of the Wafaqi Mohtasib has been taken on record vide order dated 21.3.2005.
14. There is no evidence oral or documentary in rebuttal of the plaintiff's evidence on record. The plaintiff's claim has been fully supported/corroborated by oral as well as documentary evidence as stated above. The plaintiff's evidence has gone u n rebutted and unquestioned/unchallenged, as such, as matter of law to be deemed as correct and admitted on the part of the defendants, which otherwise did not require any further proof as per Article 113 of Qanun-e-Shahadat Order (10 of 1984). The written statement filed by the defendant and the defendants Nos. 1(1) to 1(7) in absence of any evidence on their part cannot legally be taken into consideration, therefore, I have excluded the same from the consideration. It is well-settled principle of law that such written statement cannot be exhibited in the case as person filing the written statement has not been examined in Court and therefore cannot be legally treated as evidence in the instant case. Reference is invited to the following cases:---
(1) Mst. Khair-ul-Nisa & 6 others v. Malik Muhammad Ishaque & 2 others (PLD 1972 SC 25)
(2) M/s. Khawaja Auto Cars Ltd. v. Muhammad Yousuf & others (1991 SCMR 2223).
(3) Muhammad Bashir & others v. Lftikhar A.I & others (PLD 2004 SC 465).
(4) Mst Farooq Bibi v. Abdul Khaliq & 26 others (1999 CLC 1358).
(5) Central Bank of India v. Syed Muhammad Abdul Jalil Shah & others (1999 CLC 671).
(6) Muhammad Akhtar v. Mst Manna and 3 others (2001 SCMR 1700).
(7) Haji Din Muhammad through Legal Heirs v.
Mst. Hajra Bibi and others (PLD 2002 Peshawar 21)
15. The upshot of the above discussion is that in the facts and circumstances of the case the plaintiff's suit is decreed as prayed with cost to the tune of Rs. 96,37,773.82 with mark-up at the rate of 14% per annum from the date of the suit till realization. .