The plaintiff has brought this suit for recovery of- a sum of Rs. 3,26,119.65 breach of contract by defendant No. 1, and consequent damages suffered by the plaintiff. According to the facts disclosed in the plaint, the plaintiff had entered into a contract with defendant No. 1 through their agent in Pakistan, defendant No. 2, for purchase of a combined shrimp canning and cooking plant.
This was to be imported by the plaintiff under `Pay as you earn' Scheme. It is alleged that a contract incorporating the terms and conditions on which the machinery was to be imported was executed between the plaintiff and defendant No. 1, at Karachi on 20th November, 1970. It is stated that in terms of the contract the plaintiff opened a confirmed irrevocable letter of credit through their bankers in favour of defendant No. 1, and also furnished the required bank guarantee and performed all other terms and conditions of the contract, but defendant No. 1 in spite of fulfilment of all the obligations by the plaintiff under the contract, did not supply the machinery, and contrary to the terms of the contract insisted upon the plaintiff to provide a further bank guarantee of a foreign bank whereupon the plaintiff served a legal notice dated 21-8-1971 upon defendant No. 1 to fulfil the contract but in spite of notice defendant No. 1 did not supply the contracted machinery. It is finally stated on account of above breach of contract by defendant No. 1 the plaintiff suffered damages to the extent of Rs. 3,26,119.65. The damages are claimed on account of loss of profit at the rate of Rs. 50,000 per month for 7 months, travelling expenses and technical adviser's fee Rs.
24,111.65 and Rs. 2,600 respectively, and extra payment incurred on account of urgent construction of the factory premises Rs. 20,000. The above amounts are mentioned in a statement Exh. 16/1 which was originally filed along with the plaint as Annexure 'K'. The various sums mentioned in Exh.
16/1 when added together comes to Rs. 3,96,119.65, but in the plaint the total damages claimed are Rs. 3,26,119.65 only. Separate written statements were filed by the defendants. The defendant No. 1.
Took the plea that this Court had no jurisdiction to proceed with the case as the agreement provided for an arbitration in Germany, in the first instance in the event of a dispute between the parties and the contract itself was to be governed in accordance with the laws of Germany. It was also pleaded on behalf of defendant No. 1 that there was no concluded contract between the parties and as such the question of breach of the contract as alleged did not arise in the circumstances of the case. The plaintiff, it was alleged, never obtained and deposed with Deutsche Asiatische Bank, Hamburg (West Germany) the bankers of defendant No. 1, the drafts for payment of instalments duly guaranteed by plaintiff's bankers and authenticated by State Bank of Pakistan as agreed in the draft agreement along with the Letter of Credit, and as such the breach of agreement, if any, was on the part of plaintiff. The defendant No. 2 disputed his liability on the ground that he acted only as an indenting agent of defendant No. 1 and as such has no personal liability. Defendant No. 2, also took the stand that breach of agreement was entirely on the part of the plaintiff.
2. The parties filed draft issues in the Court and by order dated 26-2-1973, the Court adopted all the issue suggested by the plaintiff along--with Issues Nos. 2, 4, and 6 proposed by the defendants.
The issues finally adopted by the Court were as under :-
(1) Is Annexure 'A' produced by the plaintiff not the contract copy of the agreement of sale between the plaintiffs and defendant No. 1, if yes, what is the effect ?
(2) Did Plaintiffs fail to carry out the terms and conditions of Article II of agreement dated 26th November, 1970 as alleged in para. 2 of the written statement of defendant No. 1, if yes, what is the effect ?
(3) Was agreement dated 20th November, 1970 between the parties subject to final confirmation as alleged in para. 2 of the written statement of defendant No. 1, if yes was such confirmation made or not ?
(4) Has this Hon'ble Court no jurisdiction to try the above suit as alleged in para. 10 of the written statement, of defendant No. 1 ?
(5) Did defendant No 2 act as the agent of defendant No. 1 in respect of contract dated 20th November, 1970 as mentioned in para. 1 of the plaintiff ?
(6) Did plaintiffs on receiving the contract dated 20th September, 1970 executed by defendant No. 1 through defendant No. 2, at Karachi opened confirmed irrevocable letter of credit through their Bankers and gave a required Bank Guarantee according to the terms of the said contract and performed all the terms and conditions of the said contract, which they had to perform as alleged in para. 2 of the plaint ?
(7) Did defendant Nb. 1 go back on the original terms of the contract dated 20th November, 1970 and demand a further Bank Guarantee of a foreign bank as alleged in para. 3 of the plaint ? If yes, what is the effect ?
(8) Did plaintiffs commit breach of the contract dated 20th November, 1970 as alleged by both the defendants in their written "statements or defendants committed the breach of contract in question ?
(9) Did plaintiffs suffer damages to the tune of Rs. 3,26,119.65 on account of breach of contract committed by the defendants as alleged in paras. 7 and 8 of the plaint ?
(10) Are the plaintiffs not entitled to all or any of the damages enumerated in Annexure `K' attached to the plaint as alleged by the defendants ?
(11) To what relief or reliefs are plaintiffs entitled ?
(12) Whether the suit is maintainable in law without resorting to arbitra--tion proceedings ?
(13) Whether the plaintiff has failed to deposit in the Deutche-Asiatiche Bank, Hamburg, West Germany, the drafts covering individual amounts and guaranteed interest duly authenticated by the State Bank of Pakistan and furnishing tax exemption ? If so, what is its effect ?
(14) Whether the measure of damages is against laws ? If so its effects ?
The issue with regard to the jurisdiction of this Court raised by the defendant No. 1 was heard and decided as a preliminary issue, by my learned brother Fakhruddin G. Ebrahim J. Who by his order dated 12-11-1974, held that this Court had jurisdiction in the matter. I may also mentioned that 1while the evidence in the suit was being recorded, the counsel for plaintiff filed an application under Order XIII. Rule 2, C. P. C. Seeking permission to produce four original letters of defendant No. 2 annexed with the application was rejected by my learned brother Naimuddin J. By his order dated 6-2-1970. When the suit came up for arguments before me on 9-9-1980, after hearing Mr. Z.
C. Valliani Advocate for the plaintiff and Mr. Hassan A. Shaikh for the defendants at some length I refrained the following issues in the suit with the consent of the learned counsel;--
(1) Whether there was any concluded contract for supply of canning plant between the plaintiff and the defendants If so, which of the four documents namely Exh. 7/1 and Exhs. 8/1 to 8/3 is the concluded contract between the parties ?
(2) Who has committed the breach of the contract ?
(3) Whether defendant 2 has acted as the agent of defendant 1 ;
(4) What amount of damages the plaintiff is entitled to ?
(5) Relief.
My decision on the above issues is as follows :-
3. Issue No. L-It is contended by Mr. Massan A. Shaikh the learned counsel for the defendants that the plaintiff had approached defendant No. 1 for purchase of Shrimp Canning Plant under "pay as you earn scheme", required a formal approval of the contract by the Government before the machinery was actually imported in Pakistan and accordingly defendant No. 1 had given a draft agreement to the plaintiff to obtain necessary permission and to complete other formalities which were required in connection with the finalisation of the deal. It is accordingly contended by Mr. Hassan A. Shaikh that the agreement referred to in the case was still a draft subject to approval of the parties after its approval by the authorities concerned in Pakistan, and as such no liability on account of the alleged breach could arise under such an agreement. It is vehemently argued by Mr. Hassan A. Shaikh that there is nothing on the record to show that after the 1st agree--ment was subjected to by he Department concerned of the Government of Pakistan, any other agreement was concluded between the parties. It is pointed out by the learned counsel that the admitted position on record is that the first agreement forwarded to the concerned authorities for according approval was not accepted and alterations were suggested, but there is nothing on record to show that these alterations in the original contract were accepted by defendant No. 1, and a formal agreement incorporating these amendments was ever executed by the parties. The contention of learned counsel is not without force. It is not disputed before me that under the scheme which was known as "Pay as you earn" a person desirous of importing machinery/plant had to obtain clearance/permission from the government before actually importing the machinery. It is also not disputed that under the above scheme, the . Importer had to pay only a part of the consideration at the time of actual import of machinery by opening a Letter of Credit while the balance amount was to be paid under an extended period in instal--ments to the supplier. There are in all five copies of the contract which are alleged to have been executed between the parties and are produced in the evidence. These are Exhs. 7/1, 7;4, 8/1, 8/2 and 8/3. Out of these docu--ments, Exh.
7/1 has been produced by the plaintiff. Exh. 7/4 was put to the plaintiff in cross-examination by the defendants, while Exhs. 8/1 to 8/3 were produced by witness Ashfaque Hussain (Exh. 8) a Deputy Director in the office of I. P. & S., Ministry of Industries; Government of Pakistan, who was summoned to produce the contract between the parties. It is significant to note that the contents of these documents and signature of parties thereon do not tally with each other when compared. Exh. 7/1, 7/4, 8/ 2 and 8/3 are all dated 20th November, 1970, while Exb. 8/1 is dated 28th February, 1970. :It is contended by the learned counsel of the plaintiff that of these four documents Exh.7/1 is the final agreement between the parties, while it is urged by the defendants that Exh. 7/4 was the only agreement entered into between the parties which too was only a draft. Exhs. 8/1 to 8/3 produced from the record of Government by the witness (Exh. 8) are substantially different from Exhs. 7/1 and 7/4 which are contended by the plaintiff and the defendants respectively to be correct copy of the agreement between the parties. As the witness (Exh. 8) who produced Exhs. 8/1 to 8/3 had also stated in his evidence that Exh. 7/1 produced by the plaintiff was the final agreement entered into between the parties. I leave aside from consideration Exh. 8/1 8/3 and will consider only the remaining two docu--ments Exhs. 7/1 and 7/4 to find out as to which one of these two agreements was contract entered into between the plaintiff and defendant No. 1 Exh. 7/1, it is contended by the plaintiff was signed by both the parties. The signature appearing on Exh. 7/1 is, however, different from the signature appearing on Exh. 7/4. Defendant No. 1 had denied execution of Exh. 7/1 in his written statement and this plea was hotly pursued in the cross--examination of plaintiff's witness.
Except statement of Suleman (Exh. 16) no other evidence has been produced by the plaintiff in proof of execution of Exb. 7/1 by defendant No. 1. Exh. 7/4 when shown to the plaintiff in cross- examination, was admitted as bearing the signature of the manager of the plaintiff as well as that of defendant No,
1. It was also admitted in cross-examination by plaintiff's witness that Exh. 7/4 was executed in the office of defendant No. 2, and that it bears the signature of the parties on every page. In reply to a further question put by the learned counsel for the defendants in cross- examination it was admitted by the plaintiff's witness that after receipt of the letter dated 16th January 1971, (Exh. 7/2), the second page of Exh. 7/1 which is alleged to be the final agreement between the plaintiff and defendant No. I was substituted. The explanation given by the plaintiff's witnesses for this substitution is, that the original agreement entered into between the plaintiff and defendant No. 1 provided in clause (8) that the agreement was to be governed by the laws of Germany and that in event of any dispute between the parties the arbitration was to take place first in West Germany according to laws of Germany. This clause in the agreement according to witness was objected to by the Government in its letter Exh. 7/2 dated 16th January 1971, and accordingly upon receipt of this letter the page containing the terms and conditions with regard to holding of arbitration proceedings in Germany and application of laws of Germany to the contract was substituted in Exh. 7/1 and substituted page provided for application of Pakistani laws and arbitration in Pakistan according to Pakistani laws in the event of dispute. The alleged original agreement referred by plaintiff's witness is not produced in the evidence and Mr. Z. C. Valiani, the learned counsel for the plaintiff was also not able to point out if any of the five documents on record could be considered as the first agreement executed the plaintiff and defendant No. 1. Mr. Hassan A. Shaikh the learned counsel for the defendants has contended that while signature on Exb. 7/4 is admitted by plaintiff as that of defendant No. 1, the signature on Exh. 7/1 is denied by the defendant No. 1. The signature appearing on Exh. 7/1 and 7/4 are substantially different and cannot be of the same persons. The plaintiff has not brought any evidence on record to show that Exh. 7/1 was signed by defendant No. 1, after the second page was substituted. It cannot be denied that the second page in Exh. 7/1 was substituted some time after 16th January 1971, when Exh. 7/2 was received by the plaintiff, while admittedly Exh. 7/1 is shown to have been allegedly signed by the parties on 20th November 1970: The plaintiff's witness in his evidence has also stated that the first agreement executed between the parties provided for application of Pakistani laws; then it was followed by a subsequent agreement which provided for application of West German laws and both these agreements were sent by the plaintiff to the Department of Supply and Development, Government of Pakistan for approval, and upon an advice received by the Department to persuade defendant No. 1, to agree to the application of Pakistani laws to the contract that a final agreement was executed between the parties. The objection raised by the Department of Supply Development with regard to the application of German laws clause in the agreement is dated 16-1- 1971, and therefore, if the contention of plaintiff is accepted that a final agreement was executed incorporating Pakistani laws between the parties, as desired by the Government, then the date of the agreement, which was alleged to be the final agreement must be a date after 16-1-1971. Exh. 7/1 which is admittedly dated 20-11-1970, therefore, could not be the final agreement between the parties referred to by the plaintiff's witness. I will now consider Exh. 7/4 which is admitted to have been executed by both the plaintiff and defendant No. 1, to find out if this could be the final agreement between the parties. Exh.7/4 is also dated 20-I1-1970. Article 1, paragraph 2 of this agreement provides that the period of repayment will be 3 years and out of the total sale considera--tion a confirmed irrevocable letter of credit equivalent 10 % of the total sale consideration is to be established in favour of the seller (defendant No. 1) and that along with the letter of credit the drafts covering the individual amount of the instalments inclusive of interest as shown in Annexure A of the agreement guaranteed by a First Class Commercial Bank and duly authenticated by the State Bank of Pakistan are to be deposited with Deutsch Asiatische Bank, Hamburg, along with the Letter of Credit. In Article 3 of the agreement it is further provided that the contracted goods will be supplied by the end of June 1971, provided this contract is confirmed finally, and Letters of Credit for down payment established by end of December 1970. (The underlining" is mine). It is the case of the plaintiff that, after receipt of the letter Exh. 2, which is dated 16-1-1971 the plaintiff persuaded the defendant No. 2 to agree to delete clause 8 and substitute it with another clause providing for arbitration in Pakistan and application of Pakistani laws to the contract. Agreement Exh. 7/4 which is dated 20-11-1970 provides for opening of Letters of Credit by December 1970, and arbitra--tion in Germany in case of dispute and application of German laws to the contract. Therefore Exh. 7/4 could also not be the final agreement between the parties. There is another aspect of this case. Both Exh.7/1 and Exh. 7/4 contain a term in Article III of the agreement that shipment of goods by the specified date is to take place provided this contract is confirmedfinally. There is nothing on record that after 16-1-1971 any confirmation to any of these agreements was accorded by defendant No. 1 as contemplated. However, as under the lawit is not necessary that the consent of the party must be expressed in writing, I will now consider, if by conduct of the parties any implied acceptance of the modified terms of the two contracts could be inferred. The payment clause both in Exh.7/4 and Exh. 7/1 clearly provided that an irrevocable confirmed Letter of Credit is to be opened in favour of defendant 1 for90 % of the price of the goods and for the balance, which was payable in three instalments, the plaintiff was to supply drafts duly authenticated and confirmed by a First Class Commercial Bank and countersigned and authenticated by the State Bank of Pakistan to the bankers of defendantNo. 1 along with the Letter of Credit. The plaintiff failed to lead any evidence to show that Letters of Credit were established by him in accordance with the provisions contained in the two agreements, or that the provision with regard to the deposit of draft for` payment of instalments with defendant No: 1's bankers, which is same both in. Exh. 7/1 and Exh. 7/4, was complied with by the plaintiff: Mr. Z. C. Valliani, the learned counsel for the plaintiff argued that the copies of draft mentioned in the agreement were to be supplied by the defendant No. 1 and as defendant No. 1 failed to send the copies of these drafts the same could not be forwarded to the bankers of defendant No. 1. This argument of Mr. Valliani only shows the inaction and disinterestedness of the parties in giving effect to the terms of the contract.
In view of the above admitted position, no inference with regard to the implied consent of defendant No. I to modify the terms of Exh. 7/1 could be inferred. In terms of section 7 of the Contract Act, it, order to convert a proposal into a binding contract , the acceptance to the proposal must be absolute and unqualified. There must be shown to exist a consensus ad idem between the parties with regard to all the terms of contract. A qualified acceptance of a proposal or acceptance of the proposal with variation is no acceptance. It is simply a counter proposal.
Such acceptance does not bring into existence a binding contract between the parties. In the present case the admitted position is that the original agreement between the plaintiff and defendant No. 1 contained a term which provided for application of German Laws to the contract and holding of arbitration proceedings in Germany in the event of dispute. It is plaintiff's own case that this term in the contract was not acceptable to the Government and as such it was suggested to persuade defendant No. 1 to agree to the alteration which was conveyed to the plaintiff by the letter of Additional Director General, Investment, Promotion and Supplies Department dated 16-1- 1971 (Exh. 7/2). Therefore, there is no doubt that until this date there was no acceptance of proposal conveyed by defendant No. 1 in the form of the agreement or containing the above term, which could convert the proposal into a binding contract. There is also nothing in the evidence to suggest that defendant No. 1 by his conduct impliedly consented to this variation in the terms of contract.
On the contrary the non-compliance of the terms of contract by the parties with ,regard to furnishing of drafts for payment of future instalment which was undoubtedly an important and essential term of the contract, indicate a contrary intention on their part. Again Exhs. 7/1 and 7/4 contained a term in Article III that the shipment of the goods will be made subject to final approval of the contract. Such reservation in a contract in my view prevented coming into existence of a concluded and binding contract between parties. The learned counsel for the plaintiff was unable to point out anything on record to show that defendant No. 1 gave up this condition or by his conduct impliedly accepted the alteration in the terms of contract. I accordingly hold that the plaintiff has failed to establish that there was a concluded and binding contract between him and defendant No. 1. .
3. Issue No. 2.-This issue relates to the breach of contract. In order to succeed in the suit the plaintiff must prove that the breach was committed by defendants. In view of my finding on Issue No. 1 it is not necessary to give any finding on this issue, but I am considering this issue on assumption that Exh. 7/1 was a binding contract as contended by the plaintiff. It has come in plaintiff's evidence that after execution of Exh. 7/1, as a result of a telephonic conversation between plaintiff and defendant No. 1, the plaintiff had proceeded from Karachi to New York for securing a guarantee of a foreign or an American Bank, which the defendant No. 1 insisted as a condition precedent for supplying the machinery to the plaintiff. This condition, it is conceded by the learned counsel for plaintiff was contrary to the provision contained in Exh. 7/1 with regard to bank guarantee.
The acceptance of this condition by the plaintiff in my opinion amounted to a variation in the terms of Exh. 7/1 and if this term was not fulfilled by the plaintiff the defendant No. 1 was under no obligation to perform the agreement. The fact that this term was accepted by the plaintiff is sufficiently borne out from the statement of plaintiff that he proceeded to New York for securing such a guarantee, and that the plaintiff himself produced in evidence Exh. 16/2, claiming it to ' be such a guarantee. This conduct of the plaintiff not only shows that he accepted the variation but that such altered terms were also allegedly complied by him. I will therefore now consider if the plaintiff has really succeeded in proving that the altered term in the contract with regard to guarantee was complied by him. (Exh. 16/2 is a document dated July 29, 1971, addressed to Messrs Lohman & Co. (defendant No. 1) by one B. Sessler Company Incorporated which is in the following terms;-- "In consideration of your sales contract to import plant and machinery under payee Scheme by Messrs Ghahsons Frisheries Ltd. D-6, Fish Harbour, West Wharf, Karachi, Pakistan. We'd like to issue a guarantee to effect payment upto a sum of D. M. 161,463 (Deutsch Marks one hundred sixty-one thousand four hundred and sixty-three) plus interest of 6 -- % per annum in your favour in case the State Bank of Pakistan do not live upto their guarantee dated April 30, 1971, and the Habib Bank Ltd., Karachi, Pakistan in connection with their guarantee dated May 4, 1971."
This document is signed and sealed by the Chase Manhattan Bank, New York and the endorsement of the Bank : is "Signature guaranteed". The plaintiff has contended that this a guarantee by the Chase Manhattan Bank of New York. I am unable to accept this document as bank guarantee. To me it appears to be only a letter addressed by B. Sessler Company Incorporated to Messrs Lohman & Company expressing a desire to issue a guarantee to effect payment up to a sum of D. M. 161,463 in case the State Bank of Pakistan and Habib Bank do not live upto their guaranteed dated 30-4- 1971, and Chase Manhattan Bank of New York had only gnaranteed the signature of the executant of this letter. It is therefore quite idle to contend that Exh. 16/2 was a bank guarantee by a foreign/American Bank which the plaintiff forwarded to defendant No. 1 in compliance with his demand. Mr. Z. C. Valliani, the learned counsel for the plaintiff attempted to argue that plaintiff was under no obligation to provide a bank guarantee of a foreign bank for payment of instalments to defendant No. 1 under the terms of Exh. 7/1, but in view of the fact that the plaintiff accepted the demand of defendant No. 1 this argument cannot be considered now. As the plaintiff failed to prove that he complied with the terms of providing the required bank guarantee of a foreign/American Bank, the breach of contract cannot be attributed to defendant No. 1 in these circumstances. Apart from it the plaintiff in his evidence also admitted that the draft mentioned in the agreement Exh.7/1 guaranteeing the repayment of the instalments were to be deposited simultaneously with the opening of the Letter of Credit with the bankers of defendant No. 1 in West Germany. Non compliance of this term is sought to be justified by the learned counsel on the ground that the defendant failed to forward the copies of the draft to the plaintiff. There is, however, nothing in the evidence to show that the plaintiff demanded copies of these drafts from defendant No. 1 who failed to forward the same to plaintiff. I accordingly hold that breach of contract, if any, was on the part of plaintiff.
4. Issue No. 3.-The plaintiff has claimed damages against both the defendants jointly and severally.
There is, however, a clear assertion made in paragraph 1 of the plaint that the defendant No. 1 through their agents in Pakistan defendant No. 2 agreed to sell combined shrimp, canning and cooking machinery. In cross-examination the plaintiff's witness also admitted that none of the agreements produced in evidence are signed by defendant 2 on behalf of defendant 1; and that defendant 2 is the indentor and a commission agent and defendant 2 had acted as such on behalf of defendant No. 1. In view of these clear admissions of the plaintiff both in the plaint as well as in the evidence no personal liability arose on account of this contract on defendant No. 2. Section 230 of the Contract Act specifically excludes the personal liability of an agent on the contracts except in cases where he makes a contract for sale and purchase of goods for a foreign merchant. It is an admitted position that defendant No. 2 never executed any agreement on behalf of defendant No. 1 which were all between the plaintiffs and defendant No. 1. The plaintiff has failed to establish personal liability of defendant No. 2 in the case. I accordingly hold that defendant No. 2 cannot be sued or held personally liable for the losses, if any, suffered by the plaintiff on account of alleged breach of the contract.
5. Issue No. 4.-In so far this issue is concerned, the plaintiff has claimed total amount of Rs.
3,26,119.65 as damages. The damages are shown in Annexure K to the plaint, which was later on exhibited in the evidence as Exh. 16/1. According to the details given in Exh. 1F/1 a sum of Rs. 3,50,000 is said to have been suffered by plaintiff on account of loss of profit for 7 months from 1-11-1971 to 31-5-1972 at the rate of Rs. 50,300 per month, but plaintiff has failed to substantiate this figure from the available evidence on record. The next item in Exh. 16/1 is a sum of Rs. 24,119.65 claimed as loss on account of travelling expenses for going over to Germany and New York. It is stated in plaintiff's evidence that these expenses were incurred by the plaintiff firstly for going to Germany to inspect the machinery and to consider the feasibility of the project ; and secondly to proceed to New York from Germany for procuring the bank guarantee of a foreign bank as demanded by defendant No.
1. The inspection of machinery at Germany was never provided for in the contract, and if the plaintiff had chosen to inspect the machinery before installing and importing it ; it was absolutely his own choice. It was nowhere stated in the evidence of plaintiff that he was obliged or compelled to undertake the journey to Germany for inspection of the machinery, or that the defendant asked or persuaded the plaintiff to come over to Germany for inspection of the machinery in connection with the contract. In so far the expenses incurred on journey undertaken by the plaintiff from West Germany to New York for procuring the bank guarantee are concerned these expenses cannot be allowed as admittedly the plaintiff never obtained such a guarantee. The plaintiff was further claimed a sum of Rs. 2,000 by way of technical adviser's fees which also cannot be allowed as no evidence was led to show that this amount was ever paid and was incurred in connection with the fulfilment of any term of the contract. On the contrary, witness Agha Ghulam Hussain who accompanied the plaintiff as a technical adviser to inspect the machinery at Germany stated that he had not charged any fee from the plaintiff: Even otherwise if the plaintiff had availed of any technical adviser's opinion, it was solely for his own benefit and could not be ascribed as an expense incidential to the contract. Lastly, he claimed a sum of Rs. 20,000 on account of urgent construction of the factory premises. The plaintiff has produced a certificate Exh. 11/1 dated 11-1-1972 issued by Abdur Rashid contractor showing that for construction of the first floor a sum of Rs.
20,000 was paid higher than the ordinary construction charges. The witness who produced this certificate, namely, Abdur Rashid stated in his examination-in-chief that he cannot say how much higher than the normal rates he had quoted for the work to be done on an urgent basis. In cross- examination this witness stated that the figure of Rs. 20,000 mentioned in Exh. 11/1 is approximate, and that it could be less or more by Rs. 1,000. He also stated that this certificate was brought by his father and he signed it. In the absence of any evidence of the total amount spent on the construction and the normal prevailing rate of construction at the relevant time, it is not possible to determine what excess amount was spent by the plaintiff on the construction. I am, therefore, not inclined to place any reliance on the document Exh. 11/1 which is vague in its term. I accordingly hold that the plaintiff has failed to prove the losses claimed by him.
The result of the above discussion is that the suit is dismissed with costs, but costs will only be paid to defendant 2 who contested the suit.