This suit has been filed for recovery of Rs.1,14,713.29. Originally the suit was filed on behalf of Service Pakistan through M. A. Razi Khan the proprietor of the firm but later it was amended to have been filed on behalf of the proprietor.
2. The brief facts are that in August, 1969, the defendant wanted to participate in an International Fair to be held in Yogoslavia and Bulgaria in September, 1969. The defendant made enquiries from the plaintiff for carriage of their exhibits and goods to the fair. The plaintiff furnished details by his letter dated 28th June, 1969, giving a comparative statement of expenses to be incurred on carriage by sea and on carriage by truck. The defendants by their letter dated 8th July, 1969 accepted the terms of the plaintiff and asked him to make arrangement for carriage of their goods to the fair ground. According to the plaintiff the defendants were required to obtain necessary facilities and permissions from the Embassies of the respective countries from where the truck was to pass but the defendants failed to do so. The plaintiff obtained permission from Export & Import Department, and Regional Transport Authorities for-obtaining passport of the drivers and helpers by August, 1969 and started from here and reached in time. It is alleged that the defendants 'asked the plaintiff to pack the unloaded exhibits and promised and agreed to pay the charges. According to the plaintiff the defendant failed to make any arrangement for safe and convenient passage through the custom check posts of various countries and did not make any arrangement for custom clearance which were made by the plaintiff. While the truck was returning back with unsold exhibits of the defendants it was detained at Bazargan and returned to Karachi on 2nd June, 1970.
The plaintiff's truck remained idle from 16-9-1969 to 2-6-1970 during which period it is alleged that its parts were preferred and the plaintiff had to incur the expenses of labour, postage and traveling to Tehran and Yogoslavia. As the truck remained detained for such a long period the plaintiff has claimed loss of earning at the rate of Rs.200 per day. It is submitted that out of the total bill of Rs.1,52,630.41 the defendants Rs.43,552.81 leaving the balance of Rs.1,14,713.29 payable with an interest at the rate of 6 % per annum.
3. The defendants have denied the allegations made by the plaintiff. It is averred that under the agreement the plaintiff was to carry the goods in two trucks for which necessary permission should have been obtained by the plaintiff from the relevant authorities. The defendants had made efforts for obtaining the foreign exchange, the permission of the Regional Transport Authority and also gave guarantee to the C. C. I. & E. In this way various letters were issued ' by the defendants to . The Embassies and Government Authorities to ensure that no difficulty is faced by the plaintiff. It has been pleaded that it was not the responsibility of the defendants to arrange for the custom formalities. The defendants are alleged to have paid Rs.800 in foreign excharge to the Custom Authorities through the Pak1stani Embassy in Tehran for release of the plaintiff's truck. This was paid on behalf of the plaintiff and also that the plaintiff received 600 new Dinars on account of the packing charges of unsold exhibits at Zagreb. It is alleged that no more claim was made by the plaintiff in that regard. The defendants have denied all the allegations. The defendants have further pleaded that the plaintiff was to carry the good in two trucks but he had employed only one truck.
The agreed rate was Rs.10,500 per truck whereas Rs.21,000 have been paid to the plaintiff and he is liable to refund Rs.10,500. On the basis of pleadings of the parties the following issues were framed :-
(1) Whether the plaintiff or the defendant was required under the contract to make arrangements with various Embassies for movement of the truck across international border and to what effect?
(2) Whether the plaintiff or the defendant was required under the contract to arrange custom formalities for movement of the truck across international border?
(3) Is the plaintiff entitled to a decree, if so, to what amount?
(4) Relief.
(5) Costs.
4. Issues Nos. 1 and 2.-I shall take issue No. 1 and 2 together. Deter--mination of both these issues depends upon the letters exchanged between the parties from which a contract is spelt out. Two letters viz.. The plaintiff's letter dated 4th June, 1969 Exh. D. I and defendants' letter dated 8th July, 1969 Exh. D/2 form the basis of the contract. These letters are reproduced hereunder :- "Messrs Trading Corporation of Pak1stan Ltd.. 4th July, 1969.
Finlay House, Mcleod Road, Karachi Dear Sirs, With reference to your esteemed enquiry for supply Pak1stani trucks to transport the Exhibits to Yugoslavia and Bulgaria we have the pleasure in confirming that we can supply the trucks.
We are giving below the cost of Shipping the Exhibits from Karachi to Zagreb and Plivdiv by Steamer.
The following expenses are based on approximation For both the Fairs we estimate that Cft. Would be 700 Cft. Each.
(A) Karachi to Zagreb
(a) Steamer freight at Rs.45.85 per 40 Cft. Or 1 Shipping Ton Plus 15 % Charge for 17 Shipping TonsRs.4173.50
(b) Shipping expenses including allRs.800.00.
(c) Clearing expenses at Rijeka PortRs.1900.00.
(d) Transportation from Rijeka to ZagrebRs.700.00.
(e) Unpacking etc. And labour charges at ZagrebRs.500.00.
Rs.8,073.50.
Reshipping of unsold goods from Yugoslavia to Pakistan Rs.4000.00 Total ExpensesRs.1,2073.00
(B) Karachi to Varna .
(a) Steamer freight @ a 45.85 plus 15 % charges plus S 17.50 per 40 Cft. Or 1 Shipping Ton for 17 Shipping tonsRs.5,528.91
(b) Shipping ExpensesRs.800.00
(c) Clearing Expenses at Varna PortRs.1,900.00
(d) Transportation from Varna Port to PlivdivRs.700.00
(e) Unpacking etc. And labour charges at PlivdivRs 500.00 Rs.9,428.91 Reshipping of goods to PakistanRs.4,764.00 Total ExpensesRs.14,192.00 Total Expenditure YugoslaviaRs.12,073.00 BulgariaRs.14,192.00 Rs.26,265.00 We would charge Rs.10,500 (Rupees ten thousand five hundred only) per truck including the following services :-
(a) Custom Formalities.
(b) Custom .Examination.
(c) Loading and unloading of goods on the truck etc.
(d) And other Government Formalities.
Our trucking services would be from Karachi to Zagreb and Plivdiv at Pak1stan Pavilion. We will also unpack the goods at our Pavilions.
We are willing to discuss the matter further to finalize the case at the earliest so that we can start Packing according to the nature of transportation.
Thanking you and assuring you of our best co-operation at all times.
Yours very truly, For Servico Pak1stan.
Sd/-- Managing Director."
"No. Tc-P (Exh.)-2 (3)/69.July 8, 1969.
Messrs Servico Pak1stan 12-F Block 6, P. E. C. H. S. Karachi.
Sub : Despatch of Exhibits by your trucks. Dear Sirs, Reference your letter dated 4th July, 1969: You are requested to kindly go ahead with the necessary arrangements for the despatch of our exhibits for Zagreb (Yugoslavia) and Plivdiv (Bulgaria) Fairs--September, 69, by trucks. Your trucks must leave Karachi latest by 25th July, 1969 and reach Zagreb by the end of August and Plivdiv early September, 1969.
Please note that your charges per truck/lift-van of the truck size, include loading-unloading, customs formalities in Pak1stan, delivery of exhibits at Fair ground, unpacking and return of unsold exhibits.
As agreed you will arrange packing which will not take more than two lift-vans and that we will not pay you for more than two lift-vans (trucks).
You are requested to kindly complete the necessary formalities at the earliest to ensure the despatch by the 25th of this month latest.
Thanking you, Yours faithfully, for Trading Corporation of Pak1stan Ltd.
Sd/ (WASIM A. QIDWAI)
Junior Executive (Exports)."
5. The plaintiff by his letter dated 4th July, 1969 had given a compar--ative statement of the expenses for carriage by ship and by truck. While giving detailed picture of the expenses, the plaintiff had pointed out that be would charge Rs.10,500 per truck for the services namely custom formalities, custom examination, loading and unloading of the goods on the truck etc. And other government formalities. He also stated that trucking services would be from Karachi to Zargeb and Plivdiv and it was also stated that the plaintiff would unpack the goods at Pakistan Pavilion. The defendants accepted the plaintiff's offer and clarified that the charges will include loading, unloading, custom formalities in Pak1stan and delivery of exhibits at fair ground unpacking and re- transportation of the unsold exhibits. These two letters formed contract between the parties. Mr. Z.
U. Ahmed, the learned counsel for the plaintiff has relied upon the subsequent conduct of the defendants to prove that it was the liability of the defendants to have arranged the custom and government formalities relating to the carriage of goods from Pak1stan and through the international borders. In this regard he has made reference to the various letters of the defendants addressed to the government authorities and also to the foreign embassies for co-opera--tion and necessary permission to the plaintiff. On the basis of these letters the plaintiff's learned counsel has contended that the defendants were contractually liable to ensure that either they or the Pak1stan Embassies should have arranged the movement of the trucks across the international borders and complete the custom formalities. The learned counsel has laid stress on the letters of the defendants dated 8th July, 1969 and contended that the defendants have themselves specified to the services that were to be rendered by the plaintiff which was restricted to loading, unloading, custom formalities in Pak1stan, delivery of exhibits at fair ground, unpacking and return of unsold exhibits". This letter was written in reply to the defendants letter in which specific duties had been specified. The plaintiff had made a categorical statement to render services mentioned in his letter of 4th July, which included besides trucking the cargo, the custom formalities, the custom examination, loading and unloading of goods on the truck etc. And other government formalities. Trucking services offered by the plaintiff were specifically for these purposes and carriage of good. The defendants accepted it and further clarified that it will include loading, unloading, custom formalities in Pak1stan delivery of exhibits at fair ground unpacking and return of unsold exhibits. Both these letters have to be read together. The defendants have stated that the charges will "include" the aforestated services also. This means that besides the services mentioned in their letter there were other services also which were included in the charge quoted by the plaintiff. This can be found out by referring to the plaintiff's letter dated 4th January, 1969 in which certain services were specified. The services mentioned in the defendant's letter were in addition to those mentioned by the plaintiff: This was not the intention of the parties that the plaintiff will render only those services which have been specified by the defendants. Merely because the defendants had written certain letters to the Embassy and to the relevant Department of the government it does not mean that it was the duty of the defendants under the contract to have rendered that ass1stance. This was merely with a view to facilitate the work of the plaintiff in order to enable the truck to reach the fair at the proper time.
6. After the truck was detained the plaintiff informed the defendants and complained about non- cooperation of the officials of the Pak1stan Embassy but did not state anywhere that it was the duty of the defendants under contract to see that all Custom formalities are completed by them.
However, it is stated that the defendants should take necessary steps for immediate release of the truck under intimation to him. From a perusal of the documents filed by the parties and the evidence on record it seems that the plaintiff faced difficulties while coming back. The truck is stated to have been detained at Bazargan but no evidence has been placed on record to show for what reason the truck was detained. There may be various reasons for the detention of the truck and in the absence of any evidence on record showing the reason for detention of truck by the Custom authorities at Bazargan it is not possible to state that the truck was detained because papers and documents necessary to meet the Customs formalities were not proper. In view of this discussion my finding to both these issues is that the plaintiff was liable under the contract to make arrangement with various empasies for movement of the truck across international borders and to arrange Custom formalities.
Issues Nos. 3, 4 & S, 7.-The plaintiff has claimed damages for the alleged breach committed by the defendants. The main ground for alleging the breach is that the defendants failed to perform their part of the contract in arranging the custom formalities and the safe movement of the truck through the international borders. Due to this default while returning the plaintiff's truck was detained at Bazargan. It has been alleged that during detention of truck, the plaintiff had to incur heavy expenses in engaging services of certain companies for towing the truck, for sending the drivers and taking trips to Iran. It is alleged that truck parts were pilfered during detention and as the truck remained idle from 6th October, 1969 till 2nd June, 1970, the plaintiff suffered loss at the rate of Rs.200 per day. It is noteworthy that the entire expenses relate to the return journey. No hindrance or difficulty was faced when the plaintiff was taking the goods from Pak1stan to the fair.
During the arguments the learned counsel for the plaintiff has filed a statement enumerating the bills of the plaintiff submitted to the defendants from time to time for payment. The bills in dispute are from Exh. 5/87 to 5/102. In Exh. 5/87 the plaintiff has stated that a sum of Rs.10,500 was payable out of which Rs.6,422.29 was paid but now statement has been made that no amount is payable against this bill. In the same way in respect of Exh. 5/89 it has been stated that it has been paid by the defendants. The question therefore remains to be seen in respect of Bills Exhs. 588, 5/90 to 5/02 which remain unpaid. The plaintiff has produced his bills forwarded to the defendants but has not taken care to prove them. Mere production of the bills is not sufficient to prove the amount mentioned therein. In Exh. 5/88 the plaintiff has claimed Rs.8,000 as total foreign exchange spent for transporting exhibits to Zargeb and back, towards boarding, lodging of staff, taxes, conveyance and miscellaneous expenses. The plaintiff had made a statement to this effect to show how this amount was arrived and what were the expenses incurred by the plaintiff against each item. No receipt has been produced to prove payments and expenses claimed by the plaintiff. In any event the plaintiff was duty bound to transport the exhibits to Zargeb and to bring it back to Pak1stan and it was to be carried out by. His staff members whose expenses were to be borne by the plaintiff himself. Exh. 5/89 speaks of storage charges of 15 cases but nothing has been produced in writing to show under whose instructions, at what rate they were stored and who had approved the rate for such storage. To the same effect is Exh. 5/90. Exb. 5/91 deals with the services rendered in supplying two labourers at the rate of Rs.20 per day but no document has been produced to show whether these labourers were engaged if so under whose instructions and that the amount claimed was paid to the labourers. Again in Exh. 5/92 the storage charges of Rs.785 has been claimed together with rate of bouns voucher. No evidence has been led how and at what rate the plaintiff's is entitled to claim bonus voucher value. Similarly the claim in Exh. 5/93 for Rs.380 and the bouns voucher charges has not been proved. In Exh. 5/94 the expenses incurred by M. A. Razi Khan, for his trip to Yugoslavia has been claimed but the defendants have denied in their letter that any such instruction was given. From the record it seems that this was voluntary act on the part of Razi Khan to have gone over there and stayed there for a longer period for business purposes therefore this claim cannot be allowed. Exh. 5/95 relates to expenses incurred by the plaintiff's staff during the entire journey from Karachi to Bazargas and back to Karachi but no details of the expenses or the receipts showing such expenses and payments made by him have been produced. Again Razi Khan has claimed Rs.2,750 as his expenses for the second trip but the same cannot be allowed for the reasons stated above. Likewise the bills relating to the expenses for trunk-call, expenses for unloading the goods and interest cannot be allowed for want of proper proof.
8. The main item of claim seems to be a sum of Rs.48,000 towards detention charges of the truck at the rate of Rs.200 per day from 6th October, 1969 to 2nd June, 1970 and Rs.16,386.22 being the amount paid to Messrs Seamen Pak. Co. Ltd., of Tehran for rendering services to the truck. It has been held earlier that the plaintiff has not led any evidence for what reasons the truck was detained at the custom post of Bazargan. In the absence of this evidence it is difficult to lay entire blame upon the defendants that it is due to their negligence on breach of obligation that the plaintiff's truck was detained. However from the evidence it transpires that on 27th October, 1969 the defendants informed that they had checked telephonically from the Embassy at Tehran that all formalities for the release of truck had been completed but the plaintiff's staff slipped away without informing the Embassy. The defendants have also stated that they had received a telegram from the Embassy that all formalities had been completed and the truck could move any moment. The plaintiff does not seem to have denied this letter nor contradicted this statement. Therefore it seems clear that from 27th October, 1969 the truck could not be under detention and could have been moved from Bazargan to Karachi. It was due to non-avail--ability of the staff of the plaintiff that it could not be taken to Karachi. The plaintiff has claimed Rs.200 per day for the detention charges. He has merely submitted his bill to the defendants. Mere submission of bill will not prove the claim. The plaintiff could have produced the evidence to show that in the normal course of business the plaintiff would have earned Rs.200 per day and this would have been the average income of the plaintiff from the truck. This can easily be proved from the account books of the plaintiff. But no attempt was made to prove this nor any evidence was produced of any other transporter to show that normally Rs.200 per day could be the income. In the absence of any evidence to this effect, the plaintiff's claim cannot be sustained.
9. The plaintiff has also claimed Rs.16,386.32 under Exh. 5/100. In support of this claim the plaintiff has relied upon invoice dated 23rd March, 1970 for a total amount of Riyals 93,232. But since this document has been denied by the defendants and has not been proved by any witness, the plaintiff has relied on Exh. P 7/1 and an invoice of the same date which gives a consolidated figure of the amount claimed by the plaintiff. The learned counsel for the plaintiff has contended that as this document Exh. 7/1 has been admitted by the defendants it was not necessary to prove it. A reference has also been made by the learned counsel for the plaintiff to Exh. 5/16, a letter from the Embassy of Pak1stan dated 13th June, 1970 in which the Commercial Secretary who had intervened in the matter had written to the plaintiff calling upon him to pay the outstanding bill of Seamen Pak.
Of Iran. The amount of Rs.16,383.22 has been made out in Exh. 5/100 in the following manner The amount claimed by the Seamen Pak. Ltd., of Tehran is Riyals 93,232. The exchange rate has been calculated at Riyals 16.50 equivalent to Rs.1. Therefore the amount according to the plaintiff comes to Rs.5,650.42. In addition to this amount the plaintiff has claimed 190 % bonus voucher premium which comes to Rs.10,735.80. Thus the total comes to Rs.16,386.33. Before dealing with the merits of this claim the first point- that arises is that the rate of exchange has not been proved and no evidence has been led to that effect. Further the claim for bonus voucher depends upon the rates of the bonus voucher on the date when the defendant was liable to pay the same. No such evidence has been produced by the plaintiff to prove the rate of bonus voucher at the relevant date. Therefore claim for bonus voucher premium as well as the exchange rate claimed by the plaintiff cannot be taken into consideration. The only amount left is the sum of Riyals 93,232. For this the plaintiff has relied upon Exh. P 7/1, which has been admitted by the defendants. In this document there are three items one is advance to plaintiff's staff, second is towards service and expenses of Seamen Pak. Co. Ltd. And the third item relates to cost of guarantee for 48 days. The receipt and vouchers relating to these amounts mentioned in the invoice though produced, have not been proved. The learned counsel for the defendants has contended that merely by producing or admitting the invoice the entire claim mentioned in it has not been proved. Objection of the learned counsel for the defendants seems to be valid and as the plaintiff has failed to prove the first two items of the invoice the same cannot be granted. The third item of Riyals 5000 relates to the cost of guarantee for 48 days. No details of any nature whatsoever of this guarantee has been given. Nor the circumstances and the manner in which the guarantee was furnished making the defendant liable to pay for it, has been explained and proved. In the circumstances the plaintiff's claim is rejected. In view of the above discussion the suit is dismissed with costs.