' NADEEM AKHTAR, J,---This Suit has been filed by the plaintiff against the defendants for recovery of money and damages.
2. The relevant facts of the case, as narrated in the plaint, are that defendant No,1 is engaged in the business of car dealing, and defendant No,2 is the Chief Executive of defendant No,
1. Defendant No,3 is also engaged in the car dealing business, and is a sister concern of defendant No, 1.
Defendant No,4 carries on business at the same address at which defendants 1 to 3 are carrying on their business. Vide quotation/offer letter dated 17-5-1999, defendant No,1 offered for sale to the plaintiff a brand new car; namely, BMW 318i ('the car') having the specifications/features described in the said offer letter. Defendant No,1 offered the car to the plaintiff for Rs,3,200,000.00 with the option of manual transmission, and for Rs,3,400,000.00 with automatic transmission. Through its acceptance letter dated 19-5-1999, the plaintiff, which is a registered partnership firm, accepted the offer of defendant No,1, and agreed to purchase the car with manual transmission. Since the offer was accepted for the car with manual transmission, the sale consideration was agreed by the parties at Rs,3,200,000.00. Through its said acceptance letter, the plaintiff specifically informed defendant No,1 that the car will be owned by Mr.Yousuf Raza Hussain, one of the partners of the plaintiff. A sum of Rs,1,500,000.00 was paid by the plaintiff to defendant No,1 through a cheque, dated 29-5-1999 in part performance of the contract, which was acknowledged by defendant No,1 by issuing a receipt. As per the terms and conditions of the defendant No, l's offer letter, the car was. To be delivered to the plaintiff before 30-6-1999.
3. The plaintiff has averred that, after receiving the above mentioned amount from the plaintiff, defendant No,1 did not contact the plaintiff, and when the plaintiff contacted defendant No,1 on various occasions, the date of delivery for the car was not confirmed by defendant No,1, and vague replies were given. It has been further averred that the car was not delivered by defendant No,1 before 30-6-1999 as per the contract. On 12-8-1999, defendant No,1 faxed to the plaintiff a Bill of Lading, which revealed that a used BMW 318i car was being imported by defendant No,1 instead of a brand new one. On 19-8-1999, defendant No,1 faxed to the plaintiff another Bill of Lading showing import of a BMW car of 1997 model, which according to defendant No,1, was, the car that was being imported for the plaintiff. The plaintiff complained that the contract was for a brand new car of 1999 model and not for a used one or for a 1997 model. Since defendant No,1 had failed to deliver the car to the plaintiff before 30-6-1999 as per the contract, the plaintiff cancelled the contract, and such cancellation was communicated in writing to defendant No,1 by the plaintiff through its letter dated 20-8-1999. Through this letter, the plaintiff also called upon defendant No,1 to return within three days the amount of Rs,1,500,000.00 received from the plaintiff by defendant No,1 On 26- 11-1999 the plaintiff was informed by defendant No,1 that the car was available at Isla abad, and for its delivery at Karachi, a. Further sum of Rs,100,00 .00 was required. The said amount of Rs,100,000.00 demanded by defendant No,1 was duly paid by the plaintiff, but upon inspection of the car in Islamabad, it transpired that the said car was badly damaged and some of its accessories were found missing. The plaintiff once again called upon defendant No,1 to return the entire amount received by defendant No,l. Defendant No,1 agreed to return the entire amount to the plaintiff and delivered to the plaintiff three cheques of Rs,70,000.00 each, one signed by defendants 2 and 3, and two by defendant No,4. All the said three cheques were dishonoured upon presentation. Letters legal notice and final notice were issued by the plaintiff calling upon defendant No,1 to pay the above mentioned amount as well as compensation. In the above background, this Suit was filed by the plaintiff praying for a decree in the sum of Rs, 1,600,000.00 jointly and severally, against all the defendants a decree in the sum of Rs,800,000.00 jointly and severally against all the defendants, towards the interest on the payments made by the plaintiff ; and, a decree in the sum of Rs, 5,000,000.00 towards damages suffered by the plaintiff.
4. Defendants Nos.1 and 2 filed their joint written statement, denying all the averments, allegations and claims made by the plaintiff. It was averred by defendants Nos.1 and 2 that the plaintiff had no locus standi to file the Suit. It was denied by them that defendant No,3 was their sister concern, or that defendant No,4 had any relationship with them. It was further averred that it was the plaintiff who violated the terms and conditions of the offer letter, as the entire agreed sale consideration was not paid by the plaintiff in advance, and he also did not pay the balance sale consideration subsequently when the same was demanded by them verbally, due to which the delivery of the car was delayed. Defendants 1 and 2 claimed that they never refused to perform their agreed part of the contract, and special discounts were offered by them to the plaintiff on two occasions despite the breach committed by the plaintiff. It was averred by defendants 1 and 2 that the three cheques filed and relied upon by the plaintiff, were not issued or handed over to the plaintiff It was alleged by them that one of the said cheques was issued and handed over by defendant No,1 to its employee for the purchase of spare parts, but the same was stolen by the plaintiff ; and, the other two cheques were admittedly issued by defendant No,4, with whom defendants 1 and 2 have no relationship or concern. It was asserted that, in view of the breach of contract committed by the plaintiff itself, no cause of action had accrued to for filing this Suit, and the plaintiff was not entitled to the relief prayed for in this Suit.
5. In its written statement, defendant No,3 challenged the maintainability of this Suit on the grounds that this Suit was bad for mis-joinder of defendant No,3, and no cause of action had accrued to the plaintiff for filing this Suit against defendant No,3. It was averred that, since Mr. Yousuf Raza Hussain had written to defendant No,1 on the letterhead of the plaintiff that the car will be owned by him, the car was not to be owned by or delivered to the plaintiff. It was further averred that, in view of the above, the plaintiff was a stranger to the contract, and as such the plaintiff had no cause of action to file the Suit against any of the defendants.
6. As defendant No,4 did not file its written statement despite proper service, it was ordered on 17- 2-2003 that the Suit shall proceed ex parte against defendant No,4.
7. On 14-4-2003, consent issues filed by the parties were adopted, which are reproduced and discussed in the subsequent paragraphs. The plaintiff examined Mr. Yousuf Raza Hussain, who produced the registration certificate of the plaintiff (Exh.P/1); the defendant No,l offer letter dated 17-5-1999 (Exh.P/2); the plaintiffs acceptance letter dated 19-5-1999 (Exh.P/3); the plaintiffs cheque dated 29-5-1999 for Rs,1,500,000.00 (Exh.P/4); receipt of Rs,1,500,000.00 issued by defendant No,1 (Exh.P/5); first bill of lading (Exh, P/6); second bill of lading (Exh. P/7); the plaintiff's letter dated 20- 8-1999 for cancellation of the contract (Exh.P/8); the defendant No,1's reply dated 23-8-1999 (Exh.
P/9); the plaintiffs letter dated 24-8-1999 (Exh.P/10); the defendant No, l's letter dated 26-8-1999 (Exh.P/11); the plaintiffs letter dated 28-8-1999. (Exh. P/12); the defendant No, l's letter dated 2-9- 1999 (Exh.P/13); the plaintiffs letter dated 7-9-1999 (Exh. P/14); the plaintiffs legal notice dated 15-6- 1999 (Exh. P/15); interim reply of legal notice on behalf of defendant No,1, dated 21-9-1999 (Exh.P/16); the plaintiff's reminder dated 23-9-1999 (Exh.P/17); the defendant No, l's letter dated 10-11-1999 offering special discount (Exh.P/18); the plaintiff's letter dated 22-11-1999 (Exh.P/19); the defendant No,l's letter dated 26-11-1999 (Exh.P.20); payment voucher dated 20-12-1999 for Rs,100,000.00 paid by the plaintiff to defendant No,1 (Exh.P/21); the plaintiff's letter dated 30-12-1999 (Exh.P/22); dishonoured cheques and their memos issued by MCB (Exh.P/23, P/24 and P/25); and the plaintiffs final notice dated 6-6-2000 (Exh.P/26). The plaintiff's witness was cross examined by the learned counsel for defendants Nos.1, 2 and 3. On behalf of defendants Nos.1 and 2, defendant No,2 was examined, who did not produce any document. He was cross-examined by the learned counsel for the plaintiff. Defendant No,3 did not examine any witness.
8. Mr. Khalid Daudpota, learned counsel for the plaintiff, submitted that the Contract between the plaintiff and defendants 1 and 2 was a concluded contract, and both the parties were bound to perform their respective parts of the contract. He further submitted that the plaintiff performed his agreed part of the contract by paying Rs,1,500,000.00 to defendant No,1, but defendants 1 and 2 did not deliver the car to the plaintiff before 30-6-1999, although the plaintiff was always ready and willing to pay the balance sale consideration to defendant No,
1. He contended that vide Exhibits P/9, P/11 and P/13, defendants 1 and 2 admitted that the car was not delivered by them to the plaintiff before the agreed date. It was further contended that such admission on their part is sufficient to show that the breach of contract was committed by them and not by the plaintiff. It was also contended that the fact that a brand new car was neither made available for delivery to the plaintiff, nor was it imported, further shows the deliberate and willful breach committed by defendants 1 and 2. It was urged that the plaintiff was fully justified in cancelling the contract in the above circumstances. Mr. Daudpota then submitted that handing over the cheques to the plaintiff clearly shows not only that defendants 1 and 2 had accepted the cancellation of contract by the plaintiff, but also that they had promised to return to the plaintiff the entire amount received by them from the plaintiff. He further submitted that as one of the said cheques (Exh. P/25) was issued by defendant No,3, defendant No,3, being the sister concern of defendant No,1, is jointly and severally liable to pay the amount claimed in this Suit. Regarding the plaintiff's claim of damages, it was contended that in addition to the breach of contract, the basis of such claim was explained by the plaintiff's witness in paragraph 5 of his affidavit-in-evidence. According to the plaintiff, the car was booked by the plaintiff in order to provide VIP treatment and service to its foreign customers.
Mr. Daudpota submitted that the plaintiff has successfully discharged its burden to prove that the plaintiff is entitled to the relief prayed for in this Suit. It was prayed on behalf of the plaintiff that the Suit be decreed as prayed.
9. Mr. Abdul Haleem Siddiqui, the learned counsel for defendants 1 and 2, vehemently opposed the plaintiff's claim, and the "submissions made on behalf of the plaintiff. He submitted that the plaintiff has no locus standi to file this Suit, as the car was admittedly booked in the name of Mr. Yousuf Raza Hussain, and it was to be owned by him in his personal capacity. He specifically referred to Exhibits P/11 and P/13, which were the offer letter and the letter acknowledging the plaintiffs acceptance, addressed by defendants 1 and 2 to the plaintiff. He submitted that the car was offered for sale to the plaintiff and not to Mr.Yousuf Raza Hussain, and the said offer was accepted by the plaintiff. In addition to the above preliminary objection, Mr. Siddiqui submitted that the offer dated 17-5-1999 was valid only for four (4) days and the plaintiff was obliged to pay the full agreed sale consideration in advance, as per the terms and conditions of the said offer. It was urged that the plaintiff committed breach of the contract, as only part payment was made by the plaintiff on 29-5-1999, that is, after expiration of the deadline given in the offer letter. It was further urged that the delay in delivering the car was caused because of the breach committed by the plaintiff and therefore, the plaintiff had no right to cancel the contract, or to claim return of the amount or damages. The learned counsel reiterated the contents of the written statement that special discounts were offered to the plaintiff by defendants 1 and 2 on two occasions despite the breach committed by he plaintiff; the cheques filed and relied upon by the plaintiff were not issued or handed over to the plaintiff by defendants 1 and 2; and, defendants 1 and 2 had no concern whatsoever with defendants 3 and 4. It was prayed that the Suit be dismissed with compensatory costs to defendants 1 and 2.
10. Mr. Abdul Qayyum Abbasi, the learned counsel for defendant No,3, also opposed the submissions made on behalf of the plaintiff. He submitted that defendant No,3 has been dragged into this litigation merely on the basis of an assertion that it is a sister concern of defendant No,1; and, the only allegation against defendant No,3 in the entire plaint is that it issued a cheque on behalf of defendants 1 and 2, which was dishonoured. He invited my attention to the cross- examination of the plaintiffs witness, wherein it was admitted by the witness that no document was produced by him to show that defendant No,3 was a sister concern of defendant No,1; or to show that there was a direct or indirect contract between the plaintiff and defendant No,3; and, to show that the plaintiff had suffered damages because of defendant No,3. Mr. Abbasi submitted that the above admissions by the plaintiff's witness are sufficient for the dismissal of this Suit against defendant No,3 with heavy compensatory costs.
11. In his rebuttal, the learned counsel for the plaintiff submitted that the cheque issued by defendant No,4 (Exh.P/25) was given to the plaintiff by defendants 1 and 2 in lieu of the dishonoured cheque (Exh. P/23) issued by their sister concern/defendant No,3. It was urged that this proves that defendant No,3 is a sister concern of defendant.No,1, and defendants 3 and 4 are also liable to pay to the plaintiff the amount claimed in this Suit.
12. After perusing the pleadings of the parties, carefully examining the evidence on record and hearing the learned counsel at length, my findings on the issues involved in this Suit are as under:
13. ISSUE No,1: "1. Whether the defendant No,1 offered and entered into a contract in respect of BMW 318i Model 1999 manual transmission car cosmos black colour to deliver, in consideration of Rs,3,200,000 (Rupees Thirty Two Lacs Only)?
' The contract in respect of the car has not been denied by defendants 1 and 2 either in their written statement or in their evidence. Therefore, the parties are not at issue as far as entering into the contract and delivery of the car in consideration of Rs,3,200,000.00 are concerned. In fact, there was no need to frame this Issue.
14. ISSUE Nos. 2 and 6: "2. Whether the defendant No,1 has failed to deliver the BMW 318i Model 1999 manual transmission car cosmos black colour to the plaintiff as per agreed term? "
6. Whether the plaintiff fullfill (1) the terms and condition of the offer of defendant No,1 as enumerated in letter dated May 19, 1999? If so, what (!) its effect? "
' Issues Nos. 2 and 6 are interlinked and are therefore being dealt with together. The plaintiff has alleged that a sum of Rs,1,600,000.00 was received from it by defendants 1 and 2, but the car was not delivered before 30-6-1999 as per the terms and conditions of the contract. The plaintiff has further alleged that defendants 1 and 2 committed breach of the contract despite the fact that the plaintiff was always ready and willing to perform its remaining part of the contract by paying the balance sale consideration to defendant No,l. It has been further alleged by the plaintiff that the car was never made available for inspection, nor was it imported and, the car that was offered and shown to the plaintiff was a used and damaged car. On the other hand, defendants 1 and 2 have alleged that the breach of contract was committed by the plaintiff, as the plaintiff was obliged to pay the entire agreed sale consideration in advance within four (4) days of the offer letter dated 17-5-1999. It is not the case of defendants 1 and 2 that the car was delivered to the plaintiff within time as per the terms and conditions of the contract, but the plaintiff failed to pay the balance sale consideration. It has been alleged by defendants 1 and 2 that the delivery of the car was delayed as the plaintiff committed breach of the contract by not paying the balance sale consideration.
Thus, it is an admitted position that the car was not delivered to the plaintiff by defendant No,1 before 30-6-1999.
15. Defendants 1 and 2 have admitted that they received from the plaintiff the part payments of Rs,1,5000,000.00 and Rs,1000,000.00 on 29-5-1999 and 20-12-1999, respectively. If the offer dated 17- 5-1999 was actually valid only for four (4) days and the car was to be delivered before 30-6-1999 only against full payment, as claimed by defendants 1 and 2, they ought to have refused, any payment, whether partial or full, from the plaintiff after 21-5-1999. On the contrary, vide Exhibits P/9, P/11, P/13, P/18 and P/20 which were issued by defendants 1 and 2 between the period from 23-8- 1999 to 26-11-1999, that is, much after the expiration of the alleged agreed period of four (4) days, they kept assuring the plaintiff about the delivery of the car, and they also kept on demanding the balance payment from the plaintiff. It is pertinent to note here that all the above Exhibits were admitted by defendant No,2 in his cross-examination. This clearly shows that the time was not of the essence of the contract. Moreover, defendants 1 and 2 never tried to return the part payments to the plaintiff, by claiming that the same were tendered by the plaintiff in contravention to the terms and conditions of the contract and, they also never gave any notice to the plaintiff or revoked the contract on such ground. By accepting the said part payments from the plaintiff after 21-5-1999 and by demanding the balance sale consideration till as late as 26-11-1999, defendants 1 and 2 not only waived their right to demand full payment in advance, but they also extended the time of performance of the contract, vis-a-vis payment. Of the balance sale consideration by the plaintiff. Thus, it can be said that the parties agreed to alter the original contract, or to substitute the original contract with a new one, whereby all terms and conditions of the contract remained unchanged, but the time for payment of the balance sale consideration by the plaintiff, stood extended. In the above circumstances under the principle of novatio of contract laid down in section 62 of the Contract Act, 1872, the plaintiff was not obliged to perform the original contract in the manner prescribed therein, as the rights of the parties under the original contract stood completely extinguished giving way to different rights under the subsequent/new contract. This view expressed by me is supported by the Case of Banque Indosuez v. Banking Tribunal for Sindh and Balochistan and others 1994 CLC 2272; decided by a learned Division Bench of this Court. In view of the above, the assertion by defendants 1 and 2 that, by not paying the full amount in advance within four days from 17-5-1999, the plaintiff committed breach of the contract has no force.
16. In his cross-examination, defendant No,2 had stated that the car was made available for delivery to the plaintiff. In their written statement; particularly in paragraph 16 thereof, defendants 1 and 2 had alleged that they invested Rs,3,200,000.00 to import the car, but due to non-payment of the balance amount by the plaintiff, they suffered demurrage charges on daily basis, and the import duty was also increased. However, not a single document was produced in evidence by defendants 1 and 2 to prove that the car was booked or imported by them, or the car was available at Karachi for delivery to the plaintiff, or they paid any demurrage or import duty in respect of the car. On the contrary, in Exhibits P/9 and P/11, which were letters issued to the plaintiff admittedly by defendant No,2, it was admitted by defendants 1 and 2 that the delay in delivering the car was caused due to the reasons mentioned in the said letters. In the said Exhibits addressed to the plaintiff, they had in fact apologized for the delay. It is to be noted that it was never alleged by defendants 1 and 2 either in these Exhibits, or in any other document produced in the evidence; that the plaintiff was responsible for the delay. Thus, the assertion by defendants 1 and 2 that the delivery of the car was delayed because of the breach of contract, committed by the plaintiff, by not paying the balance sale consideration within time, also has no force.
17. The promises made by the plaintiff on the one hand and by defendants 1 and 2 on the other hand were reciprocal promises in terms of section 51 of the Contract Act, 1872, which provides that no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise. The part payments made by the plaintiff have been admitted by defendants 1 and 2. A number of documents were produced by the plaintiff to show that defendants 1 and 2 were called upon by it to confirm the import and delivery of the car; and, the plaintiff was ready to pay the balance sale consideration, but defendants 1 and 2 did not deliver the car. The plaintiff's evidence on these points has remained unshaken. Thus, the plaintiff has successfully discharged its burden to prove that it was ready and willing to perform its agreed part of the contract. In view of the above discussion, my finding on Issue No,2 is that defendant No,1 failed to deliver the car to the plaintiff. As I have already held that defendants 1 and 2 waived their right to claim full amount in advance within four days, and the time for payment of the sale consideration by the plaintiff stood extended, it is held that the plaintiff was not obliged to perform the remaining part of his promise, as defendants 1 and 2 failed in performing their reciprocal promise. Issue No,6 is answered in the above terms.
18. ISSUES Nos. 3, 4 and 7 : "3. Whether the defendant No,3 is a sister concern to (!) the defendant No,1 and the defendant No,4 has no concern with the defendant No,1? "
4. Whether Suit is maintainable against defendant No,3 ? If not, its effect ? "
"7. Whether the defendant No,1 given (!) the cheque bearing No,6520063 dated February 3, 2000 for an amount of Rs,70,000 to the plaintiff?"
' These three Issues are inter-linked. Exhibit P/25 is the cheque bearing No,6520063 on the basis of which defendant No,3 has been sued. It bears the stamp of defendant No,3 and the signature of defendant No,2. In paragraph 14 of the written statement of defendants 1 and 2, and in paragraph 20 of the affidavit-in-evidence of defendant No,2, they claimed and alleged that "the cheque bearing No,6520063 dated February 3, 2000 for an amount of Rs,70,000 (Rupees Seventy thousand only) "Annexure-V" was given to one of the employee (!) of the defendant No,1 in order to purchase spare parts but unfortunately, Cash was received by the customer, as such, the said cheque was not presented for encashment. The plaintiff, who had (!) frequently violated the offer of the defendant in connection with the delivery of the Car, the said cheque was nicked by the plaintiff from the Office of the defendant No, 1." In its written. Statement defendant No,3 claimed that cheque bearing No,6520063 (Exhibit.P/25) was not issued to the plaintiff, but the same was a cash cheque and it was "purloined from defendant No,3." Thus, the execution of the said cheque has not been denied by defendant No,3, as it is not the case of defendant No,3 that the said cheque was bogus or forged. It also amounts to a clear admission by defendant No,3 that defendant No,2 (admittedly the Chief Executive of defendant No,1) had the authority to sign and issue cheques on behalf of defendant No,3 and, defendants 2 and 3 were directly related to each other. It is interesting to note that, on the one hand, defendants 1 and 2 and defendant No,3 have claimed that they have no concern with each other and they are not sister concerns, and on the other hand, they have claimed that the same cheque (Exhibit P/25) was stolen from their custody.
19. Defendants 1 and 2 did not produce as witnesses their employee to whom the said cheque was allegedly given for the purchase of spare parts, the person from whose custody the said cheque was allegedly stolen, and the customer allegedly received the amount of the said cheque. They also did not produce F.I.R. Or any other document in support of the above assertions. Likewise, no witness was produced by defendant No,3 in support of the assertion that the said cheque was not issued to the plaintiff, and no F.I.R. Was produced to show that the said cheque was purloined/stolen from defendant No,3. In fact, no evidence was led at all by defendant No,3. The written statement of defendant No,3. Is completely silent as to whom the said cheque was issued.
The plaintiff's witness was cross-examined at length by the learned counsel for defendants 1 and 2 and defendant No,3, but the witness was neither confronted with the said cheque, nor was any suggestion made to him in respect thereof. Thus, the evidence produced by the plaintiff in relation to the cheque (Exh. P/25) issued by defendant No,3 and signed by defendant No,2, remained un- rebutted. A comparison of the signature appearing on the cheque (Exhibit P/25) issued by defendant No,3 with the signatures of defendant No,2 appearing on the admitted documents namely, Exhibits P/9, P/11, P/13, clearly shows that the signatures are the same. In his deposition and cross-examination, defendant No,2, who is admittedly the Chief Executive of defendant No,1, did not deny the execution of the said cheque. This shows that defendant No,2 was carrying on business under the names and style of defendants 1 and 3. It is pertinent to note that the nature of business of defendants 1 and 3 is admittedly the same, that is both are engaged in the business of car dealing. The assertions of the plaintiff that defendant No,3 is a sister concern of defendant No,1, and Exhibit P/25 was given to it by defendant No,1, therefore, appear to be correct. In any event, issuance of cheque by defendant No,3 with the signature of defendant No,2, amounts to acknowledgement of liability for returning the amount paid by the plaintiff. As far as defendant No,4- is concerned nothing was produced by the plaintiff to show that it had any concern with defendant No,1.These Issues are answered in the affirmative, except with regard to defendant No,4.
20. ISSUE No,5 "5. Whether the plaintiff has a right to claim for refund of advance money, interest and damages as prayed in Suit as defendant No,1 failed to perform the contract to deliver the agreed car?
Section 53 of the said Act provides that when the contract contains reciprocal promises and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented and, he is entitled to compensation from the other party for any loss which he may sustain in consequence of the nonperformance of the contract.
Section 54 of the said Act provides that when a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non- performance of the contract. The plaintiff has successfully discharged its burden in proving that breach of the contract was committed by defendants 1 and 2, and defendant No,3 is jointly and severally liable for such breach. Defendants '1 to 3 have failed to rebut the burden so discharged by the plaintiff. In view of my findings on Issues Nos. 2, 4, 6 and 7, and also in view of the un-rebutted evidence produced by the plaintiff, the breach of contract committed by defendants 1 and 2, and the admissions made by defendants 1 to 3, it is held that the plaintiff is entitled to the refund and damages claimed in this Suit.
21. It is well settled that, while determining quantum of damages, the nature of the damage caused to the aggrieved party must be kept in mind.. In the case of Abdul Majeed Khan v. Tawseen Abdul Haleem and others, 2012 CLD 6, it was held inter alia by the 'Hon'ble Supreme Court that though the petitioner had failed to quantify damages claimed by him as required under the law, it did not mean that he was not entitled to the grant of general damages under the rule of thumb on the face of the material brought on record by him during trial; on the basis of the documentary evidence brought on record, the petitioner was entitled to the grant of general damages for the mental agony which he had suffered on account of the conduct of the respondents the pleadings and the evidence brought in support of the claim of damages, were sufficient to award general damages to the petitioner. In paragraph 7 of the cited authority, it was further held as under:-- "7. In case of general damages, the well-established principle is that damages must be such, which would compensate the injured. As far as money is concerned, it is true that loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non- pecuniary losses may not be accurately calculated in terms of coins, but for this reason alone courts do not decline to grant compensation and the courts have formulated certain parameters and devised principles for evaluation or assessment of such general damages. Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to the victim. From the preponderance of authorities on this issue of quantification, it emerges that there is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of Court, which may, on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person, who has suffered such damage. The general damages are those, which law will imply in very violation of legal rights. They need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by judicial mind in such cases is that the conscience of Court should be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party, however, adequate care should be taken in this regard while dilating on the quantum of awards and the Courts should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but the Court should give the aggrieved party what it considers. In all the circumstances a fair and reasonable compensation for his loss." (emphasis added)
22. Keeping in view the facts and circumstances of this case, and by applying the above principles laid down by the Hon'ble Supreme Court for quantifying and assessing general damages, in my humble opinion a just, fair and reasonable amount of Rs,1,6000,000.00, being the amount equivalent to the amount that was paid by the plaintiff and which is being utilized and enjoyed by defendants 1 and 2 since the year 1999, if not completely, would satisfactorily compensate the plaintiff for the breach of contract committed by defendants 1 and 2.
23. ISSUE No,8: "8. What should the decree be?"
' In view of the above discussion and findings, and also as the plaintiff has successfully proven his case, the Suit is decreed against defendants 1 to 3, jointly and severally, in the following terms:-
(I) Defendants 1 to 3 shall pay / return to the plaintiff the sum of Rs,1,6000,000.00 (Rupees one million and six hundred thousand only), with mark-up thereon at the rate of 15% per annum till the payment of the entire said amount. The mark-up shall be paid at the said rate on Rs,1,5000,000.00 with effect from 29-5-1999, and on Rs,100,000.00 with effect from 20-12-1999;
(II) In view of the mark-up granted to the plaintiff from the dates of the payments, Prayer 'B' for the grant of interest, is hereby rejected ;
(III) Prayer 'C' for damages is granted by ordering that defendants 1 to 3 shall pay a sum of Rs,1,6000,000.00 (Rupees one million and six hundred thousand only) to the plaintiff, with mark-up H thereon at the rate of 15% per annum with effect from the date of filing of this Suit till payment of the entire said amount along with mark-up ; and,
(IV) Costs of the Suit are also awarded to the plaintiff. The Suit is dismissed against defendant No,4 with no order as to Cost.