AZIZ-UR-REHMAN, J.---The plaintiff has filed the above suit through duly constituted attorney Mr. Sikandar Mehmood son of Fazal Ghani Baig for recovery and decree of advance amount of Rs,2,972,130 along with markup of 17% per annum till realization of the whole amount, damages worth Rs,50 Million and costs with the prayer as below :-
(1) "For payment and recovery of advance amount in the sum of Rs,2,972,130,
(2) Award mark-up @ 17% per annum from the date of payment Until the date of realization of the advance amount.
(3) Award damages in the sum of Rs,50 Million for the loss of reputation caused to it at the hands of the defendant.
(4) The suit may kindly be decreed with all other costs, charges expenses incurred by the plaintiff in connection with the suit."
2. The facts in the backgrounds are:--
3. The plaintiff is a company incorporated under the laws of Islamic Republic of Pakistan having its office at Karachi Sheraton Hotel and Towers, Club Road, Karachi, Pakistan doing business as Karachi Sheraton Hotel and Towers, managed by Sheraton Middle East Management Corporation as its agent, a company incorporated in United States of America.
4. The defendant is/was carrying on business in the name and style of "Sho Works, Events and Solutions" having its principal place of business at A-25, Block 6, PECHS, Karachi. Per averments, the plaintiff with a view to arrange a variety of events and performances proposed a large scale festival by the name of "Artfest 2005" in the year 2005. The , defendant in response represented to the plaintiff that the defendant had sufficient experience and scale in arranging concerts and as represented the defendant is in a position to procure performances of the artistes from India. In this regard per assertions of the plaintiff three different agreements between the parties were signed/entered into between the parties. Out of three agreements the two are dated June 17, 2005 and 3rd one is dated June 18, 2005. The aforesaid agreements were aimed to procure performances on the dates mentioned below:-
5. The total amount for and regarding the aforesaid three performances of the artistes in the proposed Artfest 2005, was agreed to be Rs,5,944,260. The break is as under:--
(i) Punkaj Rs. 1,945,230.
(ii)Bombay Viking Rs. 1,173,585.
(iii)Abhijeet Rs.2,825,445.
6. Under the terms and condition of the three agreements and per schedule II of each agreement, the first instalment of 50% of the total amount was payable on the date of signing of the agreements as being advance payment and the balance 50% was to be paid on the date of performances but prior to commencement the performances.
7. Per schedule. II of each agreement, 50% of the total amount 'of performances was paid on the date of signing of the agreements. The details given in the plaint are as under:-- S.No. DESCRIPTION TOTAL AMOUNTADVANCE AMOUNTWITHHOLDING TAX DEDUCTEDBALANCE PAID i Punkaj Udhas 1,945,230.00 972,615.00 48,630.75 923,984.25 ii. Bombay Viking 1,173,585.00 586,792.5 29,339.63 557.453.88 iii. Abhijeet 2,825,445.00 1,412,722.5 70,636.13 1,342,086.38
8. Per schedule 1, under clause I of each agreement, it was the duty' of the defendant to obtain Pakistani Visas for the Artistes and Musicians for the purpose of their performance at the proposed Artfest 2005. Per assertions in the plaint, the plaintiff made several calls to the defendant about obtaining Pakistani Visas but the defendant failed to reply positively. Though the plaintiff had extended full support for and in respect of obtaining permission from the authorities for issuing letters to the various government offices including Government of Sindh, Information and Archives Department, Nazim Saddar Town, Karachi and Pakistan High Commission in New Delhi. Per averments made in the plaint, the defendant despite various calls and requests received no positive response from the defendant's side despite lapse of considerable period/time. The plaintiff under circumstances and in view of no reasonable time then left for carrying out a successful marketing campaign wrote a letter dated July 28, 2005, whereby the defendant was asked/warned to confirm the procurement of Visas of the artistes/performers by 16.00 hours July 29, 2005. The defendant was also warned/asked that in case of failure to confirm the procurement of the Pakistani visas then the defendant would be liable in terms of agreements to refund the advance amounts.
9. Notwithstanding, letters of the plaintiff the defendant failed and/or avoided to obtain visas for the Artistes. Under circumstances, the plaintiff was constrained' to cancel the schedule of performances of the Artfest, 2005. The defendant indeed was informed of such cancellation through separate notices each dated August 3, 2005. The performances on the scheduled dates, per plaintiff assertions had practically become impossible.
10. Further, it is also averred by the plaintiff that on November 1, 2005 the plaintiff's Sales and Marketing Director Mr. Rohinton Kharadi visited the office of the defendant and as follow up efforts a settlement for and regarding refund of the advance amount was reached. The advance amount received by the defendant was agreed to be paid in four instalments. Out of the four instalments.
Three instalments one each in the sum of Rs,7,00,000 was agreed to be paid on November 15, 2005, November 30, 2005, December 15, 2005 and the 4th instalment in the sum of Rs,723,523 was agreed to be paid on December 30, 2005.
11. Nonetheless, per assertion of the plaintiff, the defendant failed and/or refused to repay the advance amount received by the defendant. Due to such failure of the defendant to pay the advance amount in terms of the schedule(s) agreed. The plaintiff was constrained to serve a legal notice dated November 14, 2005 upon the defendant. In the said legal notice, inter alia, the defendant was called upon to refund the advance amount along with the mark up @ 17% per annum thereon from the date(s) of receipt of the advance amount till the date of refund. In terms of legal notice defendant was required to make payment within 14 days. In case of failure, the defendant was put on notice that otherwise the plaintiff would be constrained to initiate proper civil and/or criminal proceedings.
12. In response to the aforesaid legal notice. The reply received is of December. 2, 2005. Per letter dated December 2, 2005 besides taking full responsibility six weeks' time for refunding the advance amount on the part of defendant was sought. Notwithstanding repeated demands/ requests and legal notice(s), the defendant failed and/or avoided to refund the advance amount. Under circumstances, the above suit was filed besides seeking recovery of the advance amount, damages in the sum of Rs,50.00 Million on account of loss to reputation was also claimed.
13. Upon filing of the suit, summons were issued on many occasions, however, the defendant could not be served. From the diary sheet of 13-3-2008 maintained by the Additional Registrar (O.S.) the summons were also pasfed per endorsement of the bailiff. Nevertheless, thereafter, the plaintiff filed an application under Order V, Rule 20, C.P.C. With a prayer for serving the summons on defendant by way of publication and also by affixation thereof. The application was granted and consequently the summons was issued to the defendant through publication in daily -"Jang Urdu" dated 25-8-2008 as well as 'courier' registered post A/D, Court Notice Board and pasting.
14. Ultimately, on 30-9-2008 per diary maintained by the Additional Registrar (0.S.) the service was held good. On 13-10-2008, When the case came up before the -court in view of service 'held good' .On the efendant, inter alia through publication in Jang' dated 25-8-2008 and also in view of non- filing of written statement by the defendant order was passed that the case to proceed 'ex parte' against the defendant.
15. Thereafter, the plaintiff was permitted to file the affidavit-inexparte proof and accordingly affidavit-in-ex parte proof of Sikandar Mahmood son of Fazle Ghani Baig in this capacity as attorney of plaintiff was filed and on 22-10-2011, his deposition was recorded. During his deposition the P.W.1 besides his 'affidavit-in-Ex parte proof' produced various documents i,e,. Exh.5/1 to Exh.5/9 and documents marked as `X/3 to X/5'. Neither the defendant nor any one on his behalf was present in court to cross- examine the plaintiff's witness; consequently the plaintiff's side was closed.
16. I have heard Mr. S. Ejaz Hussain Shirazi, learned counsel for the plaintiff and also minutely perused the record available before me. Before proceeding further it is worth to mention herein that in the case of Malik Umar Aslant v. Sumaira Malik and another reported in (NLR 2007 Civil 226) while, dilating upon the verification of the pleadings on oath the Hon'ble apex Court observed on page 232 as under:- "It may not be out of context to note that the verification of the pleadings on oath, was introduced by the Law Reforms Ordinance (XII of 1972) read with section 6 of the Oaths Act, 1873, by adding the words "on oath or solemn affirmation" after the words verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that offer the said importance of the same amendment hi presence of verified pleadings on oath, the court has been empowered to proceed case ex parte against the opponents and pass a decree, under Order IX, Rule 6(1), C.P.C. Without calling for an affidavit in ex parte proof."
17. Nevertheless; in the case in hand the 'affidavit-in-ex parte proof' was filed along with several documents and the same were also produced as exhibit Exh.5/1 to Exh.5/9 and marked X/1 to X/5' in deposition of P. W .
1.
18. Mr. S. Ejaz Hussain 'Shirazi, learned counsel for the plaintiff contended that the defendant had voluntarily entered into three (3) agreements i,e, Exh.5/3, 5/4 and Exh.5/5. Evidently, two of them are dated 17-6-2005 and the 3rd one is dated 18-6-2005 for the performances of three events in Artfest 2005. Per learned counsel the same was to be held in the plaintiff's hotel on the scheduled dates i,e,
(a) Punkaj Udhas on September 3, 2005, (b) Bombay Viking on September 17, 2005 and
(c) Abhijeet, on August 27, 2005. Per learned counsel the total amount of three events agreed between the parties was in the sum of Rs,5.944,260.
19. Per learned counsel, out of this amount, the plaintiff paid' as advance an amount of Rs,2972,130.
Out of this amount Mr. S. Ejaz Hussain Shirazi, learned counsel for the plaintiff argued that a sum of Rs,.148,606.50 was deducted as advance income tax and the balance amount of Rs,2,823,523.50 was paid to the defendant. In this regard learned counsel for thg plaintiff made reference to Exh.5/6 and Exh.5/9 whereby payment was received and acknowledged. The break up given is as below:-- S.No. DESCRIPTION TOTAL AMOUNTADVANCE AMOUNTWITHHOLDING TAX DEDUCTEDBALANCE PAID
1. Abhijeet 2,825,445.00 1,412,722.50 70,636.13 1,342,086.38
2. Punkuj Udhas 1,945,230.00 972,615.00 48,630.75 923,984.25
3. Bombay Vikings 1,173,585.00 586,792.50 29,339.63 557,453.88
4. Total 5,944,260.00 2,972,130.00 148,606.50 2,823,523.50
20. Per learned counsel, the amount of performance fees includes taxes and per. Agreements is the liability of the promoter/defendant. Learned counsel for the plaintiff further contended that on account of delay in procuring the visas for Indian troops, the plaintiff cancelled the Artest, 2005 at Karachi Sheraton Hotel and ToweRs, In this regard cancellation notices were served upon the defendant. Per Learned counsel the defendant was required to refund the advance amount.
However, per learned counsel defendant failed to do so. Per learned counsel despite of reminders from the plaintiff's side dated 24-10-2005 and 2-11-2005, even the promised details of the allegedly incurred expenses with documentary proof were not received to the plaintiff. Mr. S. Ejaz Hussain Shirazi learned counsel for the plaintiff further argued that at one stage the brother of the plaintiff viz. Mr. Amir Bhatti had also agreed settlement of the advance amount received by the defendant in installments as below-- No. of Instalment Date Amount to be paid 1st Instalment Nov. 15, 2005 Rs.700,000/00 2 Instalment Nov. 30, 2005 Rs. 700,000/00 3 Instalment Dec. 15, 2005 Rs. 700,000/00 4 Instalment Dec. 30, 2005 Rs.723,523/00 Tot. Advance Received Rs.2,823,523/00 20.Per learned counsel notwithstanding commitments the instalments thus agreed were not paid.
Learned counsel for the plaintiff referred to the three agreements signed and executed between the parties i,e, [Exhs.5/3, 5/4 and 5/5] and contended that under the aforesaid agreements the advance payment received by the defendant is refundable.
21. Mr. S. Ejaz Hussain Shirazi, learned counsel for the plaintiff further contended that the plaintiff is an organization of international repute and has suffered huge losses in the sum of Rs,50.00 Million.nd rd th In this regard, the learned counsel for the plaintiff referred to para 20 of the affidavit-in-ex parte proof, which reads as under:-- "I say that the plaintiff is an organization of international repute and has always maintained the highest standards of reputation, commitment and hospitality services since its inception but it has been made to suffer a huge loss to its reputation at the hands of the defendant because of his non-professional and non-serious attitude towards its obligations. The plaintiff approached the defendant many times in writing, through telephonic cells and by visiting the office of the defendant in person for an amicable settlement of the matter but to no avails and is therefore, entitled to an award of damages in the sum of Rs, 50 Million."
Per learned counsel the defendant has failed to controvert the assertions made on oath in the plaint and/or otherwise, rebut the evidence led by the plaintiff, therefore, per learned counsel under such position, the plaintiff is entitled for a 'decree as prayed', ipso facto. Per learned counsel, the defendant can also be held liable under the 'Doctrine of Unjust Enrichment' which per learned counsel implies that no one can be permitted to derive benefit from an un-due advantage to become unjustifiably enrich at the expense of another. True but in my view even the 'Doctrine of Unjust Enrichment' put the plaintiff under obligation/ requires the plaintiff to firstly prove that defendant has become enriched by the receipt of a benefit, secondly that this enrichment is at the expense of plaintiff and thirdly the enrichment and/or its retention is unjust and fourthly the defendant can legally be compelled to compensate the plaintiff. No one, per se assertions, become entitle for damages without discharging his legal obligations.
23. Indeed, there is no defence/evidence on the part of defendant in rebuttal but still very heavy burden lies on the plaintiff to prove the damages claimed in the sum of Rs,50.00 Million. From the perusal of the plaint and 'affidavit in ex parte proof' and documents exhibited it is quite evident that plaintiff has not only failed to give details in respect of the damages claimed but has also failed to lead sufficient evidence in this regard. Merely, on the basis of plaintiff's ipse dixit routine assertions damages cannot be granted. Under the Contract Act, 1872 [IX of 1872] the party-claiming damages firstly to plead and then to lead sufficient, truth worthy and positive evidence. Besides, concluded agreement between the party's specific averments regarding actual losses suffered with details also needs to be pleaded by the party claiming damages.
24. Significantly in the instant case, the plaintiff has failed to discharge such onus of proof. The learned counsel for the plaintiff did not cite any case-law pertaining to grant of damages merely on the basis D of general averments and that too short of details vis-a-vis quantum of damages.
Without discharging such onus I am of the view that the plaintiff even in absence of any rebuttal is not entitled for the damages amounting to Rs,50.00 Million. Reliance can be placed in the case of "Syed AHMAD SAEED KIRMANI v. Messrs MUSLIM COMMERCIAL BANK LTD., ISLAMABAD, reported in 1993 SCM R 441, wherein it was observed on page 446 that:-- "a party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of damages. The onus is on the plaintiff and without discharging it he cannot succeed. Section 73 of the Contract Act prescribes the rule for assessing the damages suffered due to breach of contract, Only such damages can be recovered which naturally arise in the usual course of things from such breach or the parties at the time of making the contract knew that loss or damage is likely to result from the breach. Another principle which is to be kept in mind while assessing damages is that whether the plaint' was in a position to mitigate the damages and has neglected to avail of it. As discussed above the appellant has failed to prove the agreement with the Egyptian Embassy, the rate of the rent and the date of occupation."
25. While going through the various clauses of agreements [Exh.5/3, Exh.5/4 and Exh.5/5]. I also come across the Arbitration clause for settlement of dispute between the parties. For ready reference the same is reproduced herein as under:-- "SETTLEMENT OF DISPUTES If any dispute arises between the parties it shall be settled by negotiation. However if the parties fail to settle the dispute within fifteen (15) days of the dispute arising, the matter will be referred for Arbitration. The Arbitration Act of 1940 shall apply and the place for arbitration shall be Karachi. In the event that the matter is not settled by arbitration within (thirty) 30 days from the date of the dispute the matter may be referred to the Courts."
26. Notwithstanding the existence of the Arbitration clause in the agreements [Exh.5/3,. Exh.5/4 and Exh.5/5], under circumstances, of the case, in my view the jurisdiction of this Court is not ousted/barred as the subject matter of dispute falls within the jurisdiction of this Court and cause of action per paras 21 and 22 of the plaint has also arisen within the jurisdiction of this court. Merely presence of an arbitration clause does not bar jurisdiction of civil court particularly when the defendant as the case in hand is despite service has failed and/or avoided to come forward and file any application under section 34 of the Arbitration Act, 1940 [Act X of 1940] for staying of the suit proceedings on the ground of Arbitration clause in the agreements [Exh.5/3, Exh.5/4 & Exh.5/5]. In this regard reliance can be placed on the case of MAJOR GENERAL (Retd.) FAZLE GHAFOOR v. TOTAL PARCO PAKISTAN LTD and another reported in 2009 M LD 1396, wherein it was observed on page 1399 that:--- "The Civil Court at Peshawar under no canons of interpretation would be shorn of jurisdiction, when the subject matter of dispute is admittedly situated and cause of action, as per averments in the plaint, has arisen within its territorial jurisdiction. Section 31(2) of the Act, too, would not come in the way of the Civil Court when all the questions enumerated therein can be decided by the said Court.
The respondents could, well, move an application for the stay of proceeding under section 34 of the Act in case they feel that the plaintiff has not done something good by leaping over the arbitration clause. There was hardly any occasion to ask for the return of the plaint in the hand. In the cases of Uzin Export Import Foreign Trade Co. v. Macdonald Layton and Co. Ltd., Karachi and another (1996 SCM R 690) and Messrs Eckhardt and Co. Marine GmbH v. Muhammad Halal PLD 1993 Supreme Court 42, the Hon'ble Supreme Court after considering a string of judgments held that even a clause in the agreement between the parties stipulating arbitration in a foreign country, cannot bar the jurisdiction of a Civil Court within the country. When seen in this context, we do not feel inclined to uphold the order of the trial Court, returning the plaint".
27. usually, averments made in the plaint are deemed correct and accepted for the assumption of jurisdiction by civil courts. Therefore, this court ex facie notwithstanding the 'arbitration clause' in exhibits F Exh.5/3, Exh.5/4 & Exh.5/5 in my view has jurisdiction over and regarding the dispute between the parties in the instant case.
28. Under the foregoing circumstances, in view of arguments advanced at the bar by the learned counsel for the plaintiff and scanning of the available record, I have reached the conclusion that the plaintiff is entitled for a decree in the sum of Rs,29,72,130 [Rupees twenty nine Lacs, seventy two thousand one hundred thirty only] along with mark-up 0 17% per annum from the date of suit till the date of payment plus cost of the suit as well. Suit stands decreed.