1. The plaintiff has filed this suit for recovery of a sum of Rs. 1,54,434.50 against the defendants on account of alleged damages for loss of business, loss of rental of the site, arrears of rent of the site and unpaid commis--sion. According to the allegations made in the plaint the plaintiff and the defendant entered into an arrangement for setting up of a filling station at Larkana for selling the petroleum products produced by the defendant. The filling station was established on plot of land bearing Survey No. 443 Deh Larkana owned by the plaintiff. The defendant agreed to pay Rs. 300 per month to the plaintiff as rent of the site and annas 3 per gallon sale of petrol. It is alleged that since the project was a dealer financed, and the entire expenditure on construction was to be incurred by the plaintiff the plaintiff was, not liable to pay any licence fee to the defendant.
2. Alternatively, it is pleaded that in any case the licence fee payable was nominal, of Rs. 1 per pump per month. On termination of dealership, it is alleged, the plaintiff could sell the structure on the land to defendant who would pay the costs of structure after deduction of 2 -- per cent annual depreciation on it. Alternatively it is claimed that the plaintiff were to be reimburse the total cost of construction at the rate of 10 % of the cost annually so that in 10 years time, the period for which the lease was allegedly to remain in force, the plaintiff could be paid back the total cost of construc-- tion. It is an admitted position that no written agreement of dealership was entered into between the parties and the petrol pump started functioning as and from 8th of May, 1959. It appears that soon after commissioning of the petrol, differences arose between the parties and lengthy correspondences ensued between the parties without any agreement on disputed point until the dealership came to an end on 31-7-1969. The controversy broadly put is with regard to the recovery of excess licence fee by the defendant from the plaintiff during the continuance of dealership and unpaid arrears, of rent. In addition to it, the plaintiff has also claimed in the suit damages for continued occupation of site by the defendant after termination of dealership until 31-12-1970. As many as 20 consent issues proposed by the parties on 16-8-1971 were adopted by the Court. On 11- 12-1980 when this matter came up for final arguments before me, after hearing the learned counsel -for the parties, I felt that the issues could be considerably reduced and accordingly with the assistance and consent of the learned counsel for the parties I refrained the issues as follows :- "(1) Whether the plaintiff was appointed as dealer by the defendant in respect of their petroleum product at Larkana. If so, what were the terms and conditions of dealership ?
(2) What amount of rent and commission, if any, is due to the plaintiff from the defendant ?
(3) Whether the claim of plaintiff in respect of rent and commission due from plaintiff is barred by limitation ?
(4) Whether the plaintiff has suffered any demages ; if so, what is the amount of damages ?
(5) Relief."
3. On the above re-framed issues I have heard Mr. M. A. Kazi and Mr. Noor Muhammad, the learned counsel for the plaintiff and the defendant respectively at length. My findings on the above issues are as follows : Issue No. I.-From the evidence on record it appears that negotiations for establishing the petrol pump at Larkana, started between the parties in early 1958. The preliminary discussion between the parties with regard to the establishment of the petrol pump is reflected, in the correspondence exchanged between the parties during March, 1958 and May, 1958 (Exhs. 6/1, 6/2, 6/5 and P/2 to P/5). It appears from these letters that the defendant in the first instance suggested to the plaintiff for obtaining a suitable site in Larkana on lease to install the petrol pump. The plaintiff it appears, did not succeed -in its attempts whereupon, the defendant by its letter dated 14-5-1958 agreed to the setting up of the petrol pump on the site owned by plaintiff. As a result of this agreement between the parties the plaintiff was asked by the defendant to get the no-objection certificate obtained ,by it from the District Magistrate and the Chief Inspector of Explosives either transferred in the name of defendant or to fill in fresh forms for the same. On 8th of September, 1958 vide Exh.
4. P/8, the defendant informed the plaintiff that the necessary permissions required for installation of the petrol pump has been obtained. The plaintiff was further informed that an Engineer of defendant would visit Larkana to demarcate the land and to show the plaintiff the proposed lay out of the petrol pump which was to be constructed by the plaintiff at its own cost. By letter dated 3rd October, 1958 (Exh. P/9) the defendant forwarded a blue print of the proposed filling station on the site and asked the plaintiff to return the estimate pro forma duly filled in for defendant's approval.
5. Soon after this letter on 11th October, 1958 (Exh. P/10) the defendant informed the plaintiff of the despatch of M. S. Storage tank, pump and fittings etc. And also informed that the field engineer of defendant will soon contact the plaintiff for assisting it in making the estimate. The proposal was described by the defendant as the dealer financed one and all expenses were to be borne by the plaintiff. It appears that the arrangement between the parties until then went on smoothly as on 3rd of March, 1959 (Exh. P/I1), the defendant wrote to plaintiff that they have come to know through their engineering supervisor that- installation of the tank and pump has been completed and asked the plaintiff to send intimation as soon as work on drive way and culvert was completed as the defendant was eagerly waiting for commissioning of the pump. 1t appears that by a telegram dated 24-4-1959 the plaintiff informed the defendant of . The completion of the filling station and in response thereto the defendant vide their letter dated 30-4-1959 (Exh. P/12) informed the defendant while acknowledging their above telegram that they have asked their Larkana. Agent to arrange motor spirit supplies to the plaintiff's pump against their written orders accompanied by pay-in-slip covering the value of goods ordered. The plaintiffs were informed in this letter that the selling price of petrol was Rs. 3 and 3 annas per gallon which included a commission of annas 3 to be paid to the plaintiff per gallon. The plaintiff was asked to commission the petrol pump as soon as it is inspected by their district sales representative. On 1-4-1959 by their letter (Exh. P/13) the ,defendant gave their no objection to the plaintiffs to run the petrol pump in the name of the firm `Canal Petroleum Service Lahori'. The petrol pump started working from 8-5-1959 and soon thereafter the defendant by its letter dated 12th of May, 1959 (Exh. P/14) forwarded to plaintiff in triplicate an agreement with the request that same may be returned to the defendant after signature of plaintiff. The plaintiff was again intimated in this letter that the ex-pump price of the petrol per gallon in bulk exclusive of local octroi etc. Is Rs. 3 and 3 annas and along with this letter a price list of Motor Lubricants was forwarded to plaintiff. f he plaintiff was asked in this letter by the defendant to deposit a nominal sum of Rs. 500. On the same day another letter dated 12th of May, 1958 was also addressed by the defendant to the plaintiff (Exh. P/15) in which defendant re- confirmed that the retail selling price of petrol of Rs. 3 and 3 annas included annas 3 commission payable to plaintiff. A few days after, on 18th of May, 1959 the defendant by its letter (Exh. P/16) informed the plaintiff that consequent to the commissioning of the petrol pump the defendant will be recovering licence fee for the pump tank and other facilities with effect from 8-5-1959 at the rate of 6 pies per gallon at the time of placing indent for supplies. The plaintiffs were informed that with every order for motor-spirit, they should pay the cost of motor--spirit and the license fee calculated at 6 pies per gallon for the quantity ordered. The plaintiff was also intimated that on certain higher quantities of sale it will be paid extra rebate in addition to their usual commission. It is not disputed that the draft agreements sent by the defendant to the plaintiff was not accepted and signed at any stage. The plaintiff in its letter dated 30-1-1963 (Exh. 6/11) addressed to defendant contended that since the project was a dealer financed, the license fee of paisas 3 per gallon charged by the defendant since the commissioning of pump was refundable and accordingly requested the defendant to refund the same pending finalisation of agreement. On 14- 2-1963 by Exh. 6/12, the plaintiff complained to defendant that the draft agreement received by them contained terms and conditions contrary to those which were agreed personally between the parties, during the discussion on the subject. On 2-3-1963 vide Eah. P/42, the defendant in reply to Exh. 6/12, wrote to plaintiff that the higher rental of Rs. 300 was agreed by the defendant in view of the long term lease of 30 years and offered to pay the rent @ Rs. 300 from the date of commissioning of Petrol Pump. It was also agreed by the defendant that after signing of the agreements the license fee recovered by the defendant will be refunded to plaintiff. In the end the plaintiff was requested to return the draft agreement duly signed. It appears that while this correspondence between the plaintiff and defendant was going on to resolve the above controversy additional facilities of H. S. D. Pump were also provided on the petrol pump of plaintiff but in 1963 dispute arose with regard to payment of license fee to the defendant in respect of H. S. D. Supplies as well and the plaintiff refused to pay the license fee. There was no further cor-- respondence between the party on subject of lease money and license fee between April, 1963 to February, 1965 and it is an admitted position that plaintiff continued to receive supplies of petrol against recovery of license fee by the defendant as before. The issue with regard to terms and conditions of lease again came into discussion when the plaintiff on 25-2-1965 while writing to defendant (Exh. 6/23) in another context complained that the defendant is trying to pressurise the plaintiff to agree to the terms and conditions of defendant in respect of lease of plot.
6. Simultaneously by another letter of the same date (Exh. 6/24) the plaintiff closed at their end the subject by writing to defendant as follows :- "We have the pleasure to inform you that the terms and conditions in respect of the agreement for the lease of the land for petrol pump site are in compatible and unsuited to us.
7. The matter may therefore please be chaptered once for all. The agree--ment forms are returned herewith."
8. The plaintiff thereafter on 13-8-1965 wrote a lengthy letter to defendant (Exh. 6/20) complaining on various scores but for the purpose of present suit only the complaint of plaintiff regarding licence fee is relevant which was as follows :- "Re ; Licence Fee In the absence of any written agreement between us, as to general terms and conditions, we were given a clear understanding vide your Letter No. SD/LRK(3) dated 30-4-1959, that our Commission on petrol will be 3 annas per gallon. But to our great surprise the licence fee issue was raised by your agent who would not issue the supply to us unless we pay 3 paisas as licence fee. Under protest we continued paying this licence fee, and raised the question with you. You however appeased us by saying that this amount will be refunded to us in due course. Ultimately you came us with an additional condition of signing the N. D. F. Agreement and the agreement to lease as a prerequisite to the refund of licence fee. Signing the agreement is altogether a different issue and to annexe this to the issue of licence fee at a later stage is an attempt on your part to subdue in due signing the agreement. Our stand is that before we even entertain the agreement question the licence fee paid by us be refunded to us."
9. The defendant replied the above letter of plaintiff point by point on 29-8-1965 (Exh. P/50) and I reproduce here the relevant portion of defendant's above letter dealing with the question of licence fee which is as under :- "Licence Fee.-You have been informed on many occasions that according to our policy we recover licence fee from all pumps except those which are covered by our standard new dealer financed agreement.
10. Please refer to Point : 2 of our dispensing pump and selling licence Agreement dated 24-12-1963 in which it is clearly mentioned that we have a right to charge a licence fee and also to alter it from time to time."
11. It appears that after receipt of the above letter of defendant the plaintiff reacted sharply and by a telegram dated 21-9-1965 (Exh.6/21) informed the defendant that no licence fee will be paid by it from I-11-1965 and in this regard relied upon the letter of defendant dated 12-5-1959 in which defendant had agreed to pay annas 3 commission to plaintiff on each gallon of petrol sale. In reply to the telegrame of the plaintiff the defendant repeated its earlier stand on the subject and offered the plaintiff that if it was not interested in continuing the dealership, one month's notice may he given to defendant so that arrangement may be made to discontinue the facilities. On 19-I1-1965 the plaintiff wrote to defendant that no licence fee will be paid in respect of H. S. D. Supplies and if the defendant did not agree to it the facilities of H. S. D. Pump may be discontinued. The defendant in reply on 26-11-1965 (Exh. P/52) wrote back to plaintiff that their dispensing pump agreement provides for levy of licence fee and therefore unless the plaintiff agreed to J paisa per gallon as licence fee on H. S. D., indents placed by plaintiff will not be executed. It appears that H. S. D.
12. Supplies were not resumed but supplies of petrol continued as usual thereafter and the defendant kept on recovering the licence fee. There was no further exchange of correspondence on the subject between the parties after November, 1965. However, on 29-11-1965, the plaintiff again reverted to the subjected of lease of plot when it wrote to defendant Exh. 6/25 in a bid to solve this outstanding issue by offering to lease out the plot to defendant on monthly rental of Rs. 900 on long terms basis and requested the defendant to send the necessary documents in this connection duly stamped. The defendant in reply wrote back to plaintiff declining the offer of Rs.
13. 900 p.m. As rent of plot but made a counter offer of Rs. 650 p.m. Subject to signing by the plaintiff the standard lease form of defendant. The defendant further asked the plaintiff to communicate their acceptance of the above offer up to 25-12-1965. This offer of defendant was apparently not accepted by the plaintiff as neither any reply was sent to the defendant nor the plaintiff signed any agreement in this regard. On assessm ent of the above documentary evidence it is quite clear that by letter dated 14-5-1958 (Exh. P/6) the defendant offered dealership to plaintiff and the project was a dealer financed as stated in the letters of defendant dated 8-9-1958 (Exh. P/8) and 11-10- 1958 (Exh. P,/10). The defendant further agreed to pay a commission of annas 3 on the sale of each gallon of petrol to the plaintiff as held out in defendant's letters dated 30-4-1959 (Exh. P/12), and 12- 5-1959 (Exh. P/15). The fact that defendant had agreed to pay Rs. 300 per month as rent of site to plaintiff and had also agreed to recover Re. 1 per month per tank/pump is fully borne out from the letter of defendant dated 2-3-1963 (Exh. P/42). I accordingly hold that plaintiff was appointed dealer of the defendant in Larkana to sell its petroleum product and the project was dealer financed. I also hold that defendant had agreed to pay a rent of Rs. 300 per month from 8-5-1959 to plaintiff, in respect of the site where petrol pump was installed in addition to a commission of annas 3 on the sale of each gallon of motor spirit by the plaintiff: The defendant was only entitled to charge a licence fee of Re. 1 per month per pump/tank from the plaintiff for the facilities provided by it.
14. Issues Nos. 2 and 3.-I will deal with these issues together as they are interconnected.
15. The plaintiff has claimed arrears of rent for the site at the rate of Rs. 300 per month from 1-:-1959 to 30-11-1965 and at the rate of Rs. 900 per month from 1-12-1965 to 30-6-1969. The total amount of rent thus claimed comes to Rs. 63,600 only. The basis for claiming rent at Rs. 900 per month from 1- 12-1965 to 30-6-1969 at the rate of Rs. 900 per month according to the learned counsel is the letter of plaintiff (Exh. 6/25) dated 29-11-1965 in which the plaintiff offered to lease out the plot to defendant on Its. 900 per month. But this offer of plaintiff was never accepted by the defendant, who by its letter dated 6-12-1965 (Exh. P/53) declined to accept the same and made a counter offer of Rs. 650 per month on the condition of signing by the plaintiff the standard, lease agreement of defendant. The admitted position is that the plaintiff did not accept this offer of defendant and no agreement was signed. In my view therefore, the plaintiff was entitled to claim rent only at Rs.
16. 300 per month as originally agreed. The dealership came to an end on 31-7-1967 as the plaintiff by its telegrame dated 13-6-1969 and letter dated 16-6-1969 'intimated the defendant of its resignation from dealership and gave one month's notice effective from 1-7-1969 to remove the installation from the site. The period for which rent was not paid by the defendant accordingly works out to 10 years, two months and 23 days.
17. It is not disputed by the learned counsel for the defendant that from 8-5-1959 to 31-7-1969 no rent was paid by the defendant but it is contended that no rent could be paid as no lease agreement was signed by the plaintiff which was a condition precedent for payment of rent. Alternatively it is urged that the claim is barred by limitation. The learned counsel for the plaintiff on the other hand maintained that there were acknowledgements on the part of defendant to pay the rent and therefore the rent could not become time-barred. Alternatively it is urged on behalf of the plaintiff that there was no agreed rent between the parties and as the rent was to be settled at a later date therefore, the cause of action will arise as and from the date the rate of rent is settled which in the present case according to the learned counsel will be the date when the Court determines the amount of rent payable. The contention of learned counsel for the plaintiff has not impressed me.
18. There is ample evidence on record to show that there was agreement between the parties for payment of rent of site at Rs. 300 per month. I have referred to the evidence in detail while dealing with Issue No. 1. There is accordingly no substance in the submission of the learned counsel that there existed no agreed basis for determining the rent. The cause of action for recovery of rent in respect of monthly tenancy arises at the end of each month. It is, therefore, rightly contended by the counsel for defendant that a major part of the claim of plaintiff for arrears of rent is clearly beyond time. The learned counsel for the plaintiff was unable to point out any acknowledgement by the defendant after 1965 whereby the defendant admitted its liability to pay this amount. On the contrary the plaintiff themselves closed this issue vide its letter dated 25-2-1965 (Exh. P/24). The suit was filed on 7-1-1971 and as such the plaintiff can only maintain its claim for arrears of rent for the period from I-1-1968 to 31-7-1969. The arrears of rent prior to I-I-1968 had become time barred on the date of institution of the suit. From 1-8-1969 to 31-12-1970 the plaintiff has claimed rent at Rs.
19. 900 per month. The plaintiff bad demanded rent from the defendant before termination of dealership at Rs.900 per month but the defendant offered to pay Rs. 650 per month. It has come in the evidence of Abdul Jalil (Exh. 6) that after removal of its equipment by the defendant from the site, the same was let out to P. N. O. At Rs. 8 per month. Keeping in view the claim of plaintiff and the offer made by the defendant I think the plaintiff is entitled to rent of the site at this rat from 1-8-1969 till the time the equipments were finally removed by the defendant. According to allegations made in the plaint in para. 29, this statement is not converted but it is contended by the learned counsel for the defendant that the matter was under negotiation with the plaintiff up to January, 1970 and thereafter the plaintiff obstructed in removal of these equipments. The contention of defendant's counsel does not find support from the evidence on record. The plaintiff after June, 1969 consistently kept on asking the defendant to remove their installations from the site. At no stage the plaintiff was agreeable to the continued occupation of site by the defendant after termination of dealership. There is also nothing on record in support of the contention of defendant that any of its authorised representatives visited the site for removal of facilities and equipments and was obstructed by the plaintiff. The tenancy of plot was monthly rated. As the site was finally cleared on 10-10-1970, I hold that the plaintiff is entitled to compensation for use and occupation of site by the defendant after termination of dealership from 1-8-1969 to 31-10-1970 at Rs. 800 per month. The plaintiff has claimed in the suit a sum of Rs. 26,034.50 as unpaid commission. At the hearing of suit both the learned counsel agreed that in fact this amount refers to the refund of licence fee realised by the defendant. I have held while deciding Issue No. 1 that the defendant was only entitled to recover nominal licence fee of Re. 1 per month per tank/ pump from the plaintiff whereas the defendant realised license fee at Rs. 6 paisa per gallon from the plaintiff. This licence fee was recovered by the defendant from 8-5-1959 to 31-7-1969. As the licence fee was recover e in breach of agreement the cause of action for claiming refund occurred t plaintiff on each deduction and therefore suit could be brought within three years of such deduction. The amount claimed by the plaintiff is for the entire period of 8-51959 to 31-7-1969. The plaintiff could only claim such amount which was wrongly realised from it as license fee within three year of the institution of the present suit. The plaintiff has not been able t show or prove any admission of liability by the defendant for this amount. C No evidence has been led by the plaintiff to prove the amount recovered by the defendant as licence fee within 3 years of the filing of the present suit in breach of the agreement.
20. In the absence of evidence in this regard, no relief can be granted to the plaintiff. The claim of plaintiff with regard to recovery of licence fee/commission is accordingly rejected. Mr. Kazi, the learned counsel for the plaintiff also agitated at the time of arguments that plaintiff was entitled to rebate on certain bulk quantities of sale of .Motor spirit in terms of Exh. P/16 which was not paid by the defendant. Firstly no such claim was made in the plaint by the plaintiff and in the second place the plaintiff has not led any evidence to prove the quantities of sale of motor-spirit and the amount of rebate earned thereon by it. In the absence of claim in tire plain: and the evidence in this regard no relief can be granted to plaintiff. As a result of the above discussion the answer to these issues is as follows;--
(a) The plaintiff is entitled to rent of site from 1-1-1968 to 31-7-1969 at Rs. 300 per month amounting to Rs. 5,700 ;
(b) The plaintiff is also entitled to compensation for use and occupation of site by the defendant after termination of dealership agreement at Fs. 800 per month from 1-8-1969 to 31-10-1970 amounting to Rs. 12,000.
21. Issue No. 4.-The plaintiff has claimed damages for loss of business and minimum monthly earning at Rs. 2,700 per month from 1-7-1969 to 31-12-1970 amounting to Rs. 48,600. No evidence has been led by the plaintiff to prove these damages. In the absence of evidence no damages can be granted. I accordingly reject the claim of plaintiff for damages.
22. I The result of the above discussion is that the plaintiff's suit is decreed in the sum of Rs. 17,700 only with proportionate cost. The plaintiff will also be entitled to interest on this amount at 6 Y. Per annum from the date of institution of the suit till the amount is paid.