SHAMSUDDIN ABBASI, J. Vide judgment dated 26.04.2007, penned down by the learned Senior Civil Judge-VI, Karachi (South), Suit No. 381 of 2004 (Old Suit No. 52 of 1983), filed by the respondent was decreed as prayed whereas the prayer with regard to interest was declined. Impugning the judgment of the learned trial Court, the appellant filed Civil Appeal No.102 of 2007 whereas respondent also challenged the said judgment in Civil Appeal No.110 of 2007, both were consolidated and decided together through common judgment dated 22.03.2022, handed down by the learned Additional District Judge-VI, Karachi (South) through which the appeal filed by the appellant was dismissed whereas the appeal filed by the respondent was allowed granting interest @ Rs. 10%, that was declined by the learned trial Court, and aggrieved of the judgment, passed by the of the learned First Appellate Court as well as trial Court, the appellant/defendant filed separate appeals, listed above.
2. Respondent Azeem Associates filed suit against appellant State Bank of Pakistan seeking damages and injunction claiming therein that they are doing business of building materials, suppliers and interior decorators, submitted a bid for 'Steel and Metal Works' for the petitioner's building at Lahore, the appellant accepted the respondent's tender in the sum of Rs.56,70,550/-, the parties entered into an agreement on 15.05.1976 and the appellant issued work order through letter dated 27.05.1976, the respondent complied with all formalities but the petitioner did not release the mobilization advance amounting to Rs.8,25,000, payable per term of contract agreement, however, released the said amount on 08.02.1977 against security of agreement-cum- guarantee No. LG No. 755 dated 23.11.1976, issued by United Bank Limited (UBL), Al-Haroon Branch, Karachi, the appellant failed to handover the possession of site during the entire period of contract from 01.06.1976 to 31.05.1978, the appellant in response to the letters of respondent enclosed the renewal endorsement dated 21.02.1979 extending the validity of the performance bond upto 20.02.1980 and since there was serious change in the work, the respondent vide letter dated 28.03.1981 brought the existing position into the notice of the appellant and requested them to issue a fresh work order and revise the contract rates because it was not possible for the respondent to execute work at the original contract rate that was executed almost six years back, at the request of the appellant, the respondent furnished his case for escalation in the rates for the awarded works through its letter dated 06.04.1982, the appellant through its letter dated 31.08.1982 confirmed the revised quantities of the items 9.01 to 9.05 of the bill. It is the case of the respondent that though revised quantities were confirmed after almost six years of the award of work, but there was a big difference, the petitioner finally without furnishing any reason offered Rs.3,04,214.98 by way of escalation over and above the originally quoted price for items 9.01 to 9.05 of the bill of quantities which came to Rs. 19,38,400.00, the appellant through its letter dated 31.08.1982 forced the respondent to confirm and accept the offer within thirty days otherwise the contract shall be rescinded, the respondent through its letter dated 13.09.1982 objected the act of the appellant and sought details which the appellant refused through its letter dated 20.09.1982, the respondent through its letter dated 06.04.1982 again pointed out the total inadequacy of what was being offered by the appellant on account of escalation, he instead of replying the respondent's letter addressed a letter dated 16.11.1982 to the Manager, UBL, Al-Haroon Branch, Karachi, for debiting said guarantee in their account enclosing a certificate of recession of contract dated 13.11.1982. The respondent, therefore, filed the suit and prayed for following relief(s):- " (a) Decree that the so called recession of contract vide letter dated 13.11.1982 is illegal is illegal, mala fide and without any contractual obligation.
(b) Permanently restrain the defendant from receiving any so called damages from any sum or sums belonging to the plaintiff which may, for any reason, be or may, in future, fall in the hands of the defendant.
(c) Grant judgment and decree against the defendant for a sum of Rs.28,05,611/- (Rupees Twenty Eight Lacs Five Thousand Six Hundred Eleven) together with interest at 14% p.a. from the date of filing of the above suit to the date of final payment of the said amount to the plaintiff
(d) Grant costs of the above suit to the plaintiff.
(e) Any other/further/better relief deemed appropriate in the circumstances of the above case.
3. The appellant/defendant contested the suit and filed their written statement mainly agitating that the point of jurisdiction on the score that contract agreement dated 15.05.1976 was concluded and signed by the then Manager, for and on behalf of SBP, Principal Office, Lahore, however, admitted the fact of offering bid, but denied its acceptance by the respondent, the appellant admitted furnishing performance bond, execution of contract agreement and issuance of work order to the respondent and denied the other allegations and submitted that since the respondent failed to reply their letter within 30 days, therefore, the rescission of the contract was done and the guarantee was encashed and prayed for dismissal of suit as not maintainable.
4. Out of the pleadings of the parties, following issues were framed: - "1.. Whether the cause of action or any part thereof accrued to the plaintiff within the jurisdiction of the Honourable High Court of Sindh?
2. Whether the suit is maintainable in its present form?
3. Whether the mobilization advance of Rs.8,25,000/ - (Rupees Eight Lacs Twenty Five Thousand only) paid by the defendants to the plaintiff was intended to enable the plaintiffs to purchase the required material in time to avoid the further danger of rising in price for the same, and thus to dispel the possibility of any demand for its escalation?
4. Whether in a suit for damages and injunction, the plaintiff can pray for a relief to declare that the so called rescission of contract vide letter dated 13.11.1982 is illegal, mala fide and without any contractual jurisdiction?
5. Whether the site of work was handed over to the plaintiff to carry out the awarded work within the contract period?
6. Whether the plaintiff was obliged to execute the awarded work on the agreed rates after the expiry of the contract period?
7. Whether there was a material change in the applicable drawings and quantities for the plaintiff's work after the award of work to the plaints`'?
8. Whether the necessary information, drawings, etc were supplied to the plaintiff to enable the plaintiff to start their work?
9. Whether the plaintiff was obliged to carry out the work on agreed rates inspite of the substantial reduction in the scope of work confirmed to the plaintiff by the defendants after the award of work?
10. Whether the plaintiff was justified in demanding revised rates based upon the market price of the various ingredients of the rates prevailing at the relevant time?
11. Whether the defendant was reasonable or justified in offering Rs. 3,04,214.98 by way of escalation against items 9.01 to 9.05 of the bid of quantities?
12. Whether the defendant was justified in encashment of bank guarantee No.LG-755 dated 08.11.1976?
13. Whether the bank guarantee No.LG-755 dated 08.11.1976 was encashed by the defendant in accordance with the terms thereof?
14. Whether the rescission of the contract vide defendant's letter of 13.11.1982 was justified or reasonable?
15. Whether the plaintiffs suffered any loss of business goodwill or reputation on account of the defendant's action taken vide their letters of 13.11.1982 addressed to the plaintiff and 16.11.1982 addressed to the Manager, United Bank Limited, Al-Haroon Branch, Karachi?
16. What should the decree be?.
5. The parties led their evidence. The learned Senior Civil Judge-VI, Karachi (South), after assessing the evidence and hearing the parties respective counsel decreed the suit but declined interest vide judgment and decree dated 26.04.2007 and 30.04.2007 respectively and aggrieved of the said judgment and decree, the appellant and respondent filed their respective appeals viz Civil Appeal No.102 of 2007 and Civil Appeal No. 110 of 2007. By a common judgment and decree dated 22.03.2022, the appeal filed by the appellant was dismissed, whereas the appeal filed by the respondent was allowed, granting interest at the rate 10% per annum, that was declined by the learned trial Court while decreeing the suit of the respondent, and against the verdicts of the learned Appellate Court, the appellant has filed the instant IInd Appeals.
6. It is contended on behalf of the appellant that the impugned judgments and decree passed by the learned two Courts below are bad in law and facts and contrary to the precedents of Hon'ble apex Court. It is next submitted that both the learned Courts below have failed to consider the fact that the respondent despite receipt of mobilization charges of Rs.8,25,000/- and repeated reminders failed to start the work as per term of the contract. It is also submitted that the learned two Courts have passed the impugned judgments without appreciating the evidence in line with the applicable law and peculiar facts and circumstances of the case, the same are result of mis- reading and non-reading of evidence and documents brought on record, without application of conscious judicial mind, hence liable to be set-aside and prayed accordingly. The learned counsel for the appellant, in support of his submission has placed reliance on PLD 2017 Islamabad 115; 2013 SCMR 507; 2015 SCMR 01; 2010 SCMR 829; 2019 CLC 01; PLD 2011 (sic) 58; PLD 2013 (sic) 290; 2019 SCMR 524; 2013 SCMR 1570; PLD 2002 SC 607; 2021 SCMR 1805 and 2020 SCMR 214.
7. On the other hand, the learned counsel for the respondent while controverting the submissions of learned counsel for the appellant has submitted that the impugned judgment and decree passed by the learned Appellate Court is based on fair evaluation of evidence and documents brought on record. It is next submitted that the appellant has committed breach of contract and failed to perform its part of contract causing heavy losses to the respondent. Per learned counsel, the findings recorded by the learned Appellate Court are in accordance with law and the learned counsel for the appellant has failed to point out any illegality, infirmity and material irregularity calling for any interference and prayed for dismissal of appeals. The learned counsel for the respondent, in support of his submissions, has placed reliance on 2000 SCMR 254, 1996 SCMR 1729 and an unreported judgment dated 29.03.2023, passed by the Hon'ble Supreme Court in 2023 SCMR 1652.
8. Arguments advanced by the learned counsel for the parties have been heard and record perused carefully with their able assistance.
9. The learned trial Court after exchange of pleadings of the parties settled various issues and by way of its judgment and decree dated 26.04.2007 and 30.04.2007 respectively decreed the suit deciding the issue of jurisdiction in affirmative and observed that the respondent fulfilled all the terms and conditions of the contract agreement whereas the appellant failed to provide the site within contract period of 24 months and also failed to justify the offer on account of escalation so offered by them as well as rescission of the subject contract and encashing the bank guarantee.
10. Findings recorded by the learned trial Court were concurred by the learned Appellate Court vide' common judgment and decree dated 22.03.2022, whereby the interest that was declined by the learned trial Court was also granted to the respondent. Relevant extracts of the said judgment are reproduced below:- "13. Admittedly, the contract was awarded by the State Bank of Pakistan to Messrs Azeem Associates on 15.05.1976 and period of completion of contract was far 24 months i.e. from 01.06.1976 to 31.05.1978. During trial the State Bank of Pakistan failed to explain with material evidence that mobilization advanced was paid to Messrs Azeem Associates to enable them to purchase the requisite material in time to avoid the price hike or otherwise. The State Bank of Pakistan examined their witness namely Mashkoor Ali, who in cross-examination admitted that there is no clause in the contract regarding the manner in which the mobilization advance is to be used. He further stated that it is not in his knowledge whether any book exits on the subject of agreements pertaining to building construction wherein the term mobilization advance has been denied. He further stated that he is not aware of any printed material in the subject of engineering contracts dealing with mobilization advance, particularly the manner in which it is to be utilized.
14. Besides record shows that Messrs Azeem Associates addressed letter dated 31.08.1976 (Ex. P/2) complaining therein for non-payment of the mobilization advance and the cause of inordinate delay may affect the costs of raw material and labour charges. The delay for payment of mobilization/advance amount till 08.02.1977 is apparent on record. Such delay for withholding money without any substantial reason cause disturbance in monitory and budgetary transaction more specifically in commercial activity. The Messrs Azeem Associates has also shown his anxiety regarding non-providing the drawings and specifications on the part of the State Bank of Pakistan so that the material had to be purchased by them. From perusal of record, it further reveals that the State Bank of Pakistan had failed to hand over the site for execution of constructed /awarded work to Messrs Azeem Associates within the prescribed period which is evidence from the admission of witness examined by the State Bank of Pakistan that the civil work was completed at site in the year 1988 beyond the period of contract, therefore, such eventuality of costs as a result of non--co-operation with Messrs Azeem Associates ultimately affected the price for purchasing the material required to be used for contract work. The evidence of Messrs Azeem Associates proved to be un-shattered by the State Bank of Pakistan inspire of availing the opportunity of cross-examination. Messrs Azeem Associates witness namely Sajjad Azeem deposed all comprehensive facts with consistency. The default on the part of the State Bank of Pakistan has been established by Messrs Azeem Associates through evidence and with specific admission of the State Bank of Pakistan's own witness, therefore, the claim of Messrs Azeem Associates on enhancement of rate is justified and so also it has been proved Messrs Azeem Associates was not provided the site for ignition/commencement of contract work. It is an admitted fact that agreement cum guarantee was secured by the State Bank of Pakistan from Messrs Azeem Associates for the purpose of any default on the part of Messrs Azeem Associates or recession of contract and such guarantee could be encashed. The encashment of bank guarantee was unjustified and Messrs Azeem Associates is entitled for the recovery of it".
11. As to the contention that respondent had failed to lead any evidence in support of its claim, hence the suit ought to have dismissed, suffice to observe that the respondent has placed on record sufficient evidence to substantiate that due to failure of the appellant to perform their part of contract within stipulated time, they have suffered losses due to change of circumstances and tremendous rise in the prices of relevant material, hence entitled to claim damages.
Notwithstanding, the appellant failed to lead any evidence to negate the claim of the respondent.
On the other hand, the evidence led by the respondent remained un-shattered during cross- examination. The Court is required to examine the evidence as well as material brought on record and to see that the contention so raised is supported by evidence and supporting material or not.
The learned trial Court, on the basis of available evidence and documents brought on record, decreed the suit of the respondent, which has not been maintained by the learned Appellate Court but also granted interest, that was declined by the learned trial Court, placing reliance on the case reported as 2006 CLD 107.
12. Admittedly, there are concurrent findings on the issue of fact against appellant. The learned two Courts below have concurrently refused to exercise their discretion in favour of the appellants. The learned Appellate Court while maintaining the findings of the learned trial Court also exercised its discretion in favour of the respondent granting them interest at the rate 10% instead of 14% that was claimed by the respondent in the suit. The impugned judgment and decree passed by the learned Appellate Court are well reasoned and in accordance with law, therefore, there is no reason to interfere in the findings of the learned Appellate Court, which are outcome a proper appreciation of evidence and other material on record as well as application of conscious judicial mind to the facts and circumstances of the case, hence call for no interference. The Hon'ble Supreme Court in case of Naseer Ahmed Siddique through legal heirs v. Aftab Alam and another (PLD 2011 SC 323) held as under:- "Where trial Court has exercised its discretion in one way and that discretion has been Judicially exercised on sound principles and the decree is affirmed by the appellate Court, the High Court in second appeal will not interfere with that discretion, unless same is contrary to law or usage having the force of law."
Similarly, in the case of Keramat Ali and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191), it has been held as under:- "the High Court in second appeal has no jurisdiction to go into the question relating to the weight to be attracted to a particular item of evidence."
The Hon'ble Supreme Court in the case Bashir Ahmed v. Mst. Taja Begum and others (PLD 2010 SC 906) also held as under:- "The question of materiality, that is, whether or not an issue is of a material nature, will depend upon whether the ultimate decision of the Court of first appeal would have been different, if the omitted issue had been determined by it. Thus, in order to succeed in second appeal on ground (b) of subsection (1) of section 100, C.P.C, an appellant would have to show that the Court of first appeal would have reached a different conclusion, had it not failed to decide the issue of law or usage specified in ground (b) ibid."
Likewise, in the case of Muhammad Jabal and another v. Mukhtar Ahmad through L.Rs (2008 SCMR 855) it has been held that:- "when the two Courts below came to the conclusion that they arrived at and rightly so. This perfectly sound conclusion should not have been interfered with by the High Court in the exercise of Its second appellate jurisdiction."
13, For the foregoing reasons and relying on the dictum laid by the Hon'ble apex Court in the case law (supra), I am of the view that the learned Judge of the First Appellate Court has passed the impugned judgment and decree in accordance with law after application of conscious judicial mind and carefully appreciation of oral and documentary evidence, produced by the parties, as well as applicable law and the learned counsel for the appellant has not been able to convince me that there is any misreading or non-reading of evidence by the learned Appellate Court, therefore, there is no reason to interfere. The case law cited by the learned counsel for the appellant, in support of his submissions, in my humble view, the facts and circumstances of the said cases are distinct and distinguishable from the case in hand, hence none of the precedents cited by the learned counsel are helpful to the appellant. Consecquently, these IInd Appeals Nos. 139 and 140 of 2022, filed by the appellant, are bereft of any merit stand dismissed along with all pending applications, however, with no order as to costs.