1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Karachi Bench, in 2nd Appeal No. 339 of 1969, dated the 20;11 August 1969. By this judgment, the appeal was dismissed on the ground 'that the appellant have failed to prove that there was a written agreement between the parties.
2. The respondent firm filed a suit for the recovery of Rs. 25,000 against the appellants on the allegation that under an oral agreement dated the 16th September 1960, they have agreed to purchase shutterings and rails at Rs. 7,000 per ton and lifted the entire quantity of goods in instalments from time to time and paid Rs.1,34,500 towards the purchase price. They claimed that at the time of agreement they deposited a sum of Rs. 25,000 and the appellants have not refunded the said deposit.
3. The suit was resisted by the appellants. They alleged that the respon--dents had entered into an agreement in writing on the 16th September 1960, with the appellants through one Subah Noor and had agreed to purchase about 300 to 350 tons of shutterings and rails within four months of the -- date of agreement. According to them, the terms of the contract were that the respondents will lift the entire goods within four months, In case, they failed to do so, the deposit amount of Rs. 25,000 will be forfeited. They further alleged that the respondents had failed to lift the said goods. Instead they damaged the goods which had to be sold at a loss. According to them, they have suffered damages and respondents were not entitled to the refund of the deposit made with the appellants.
4. On the pleadings of the parties, the following issues were framed:-
(1) Whether an agreement for sale was executed in writing on a duly stamped paper on the 16th September 1960, between the parties?
(2) Whether items (a) to (i) detailed in the plaint form to the Schedule agreement dated the 16th September 1.960, between the parties referred to in issue No. 1 ?
5. '(3) What was the agreed quantity of goods to be lifted by the plaintiffs?
(4) What is the quantity of goods actually lifted by the plaintiffs?
(5) Whether the plaintiffs committed the breach of the agreement entered into on or about the 16th September 1960?
(6) Whether the plaintiffs damaged the remaining articles not lifted. If so, what is the amount of damage suffered by the defendants on this account?
(7) Whether the defendants are entitled to forfeit the amount of Rs. 25,000 deposited as security by the plaintiffs?
(8) What relief, if any, are the plaintiffs entitled?
6. Out of the above issues, the most important issue was whether there was an agreement in writing between the parties on the 16th September 1960.
7. The Civil Judge, First Class, Karachi, dismissed to Suit w a. 1992 of 1961 with costs by judgment dated the 20th April 1966. He held that the respondents had entered into an agreement in writing on the 16th September 1960, He further held that the respondents had committed breach of the contract and were not entitled to the refund of Rs. 25,1;00. This judgment was challenged in Civil Appeal No. 80) of 1966 and the learned Additional District Judge, Karachi, accepted the appeal by judgment dated the 3rd May 1969. He came to the conclusion that there was oral agreement between them.
8. He further held that the respondents had not committed breach of contract and there was no proof that the appellants had suffered any damages. In view of the above finding, he decreed the claim in the sum of Rs 25,OJ0 in favour of the respondents. The matt.-r was t".-en taken in Second Appeal No. 339 of 1969 and a Division Bench of the former High Court of West Pakistan. Karachi Bench, by order dated the 20th August 1969, dismissed the appeal on the ground that the appellants have failed to prove that the alleged agreement in writing was valid and binding between the parties.
9. Leave was granted in this case to consider the question whether there was an agreement in writing between the parties and whether Subah Noor who has signed the agreement being the brother of the partner of the respondent-firm could bind the respondents under the alleged agreement.
10. We have considered the contentions of the learned counsel for the appellants. The most important witness in the case is Muhammad Ayub D. W. 2, the broker. Lie stated that there was a writing about the contract but admitted that it was not signed in his presence. He only stated that the goods were lifted by Subah Noor through him and that was paid for. According to him, the contracted goods were about 300 to s50 tons and the plaintiffs lifted about 200 tons. There is nothing in the evidence of this witness that the amount of Rs. 25,000 were to be forfeited on not lifting the goods within four months, or that the agreement was signed by Subah Noor or that Subah Noor was a partner of the respondent-firm.
11. The entire evidence has been considered by the learned Additional District Judge, Karachi end the High Court and they have come to the con--clusion that the agreement between the parties was not in writing and that Subah Noor was not a partner of the respondent-firm. For this, they relied on the statement of Sabah Toor and on the documents of the registration of the firm, This being a concurrent fading of fact could only be assailed if there was a misreading of evidence. The learned counsel for the appellants has failed to satisfy us that there is any such error in the case.
12. After considered the evidence led by the parties we are satisfied that the agreement between the parties was dated 16th September 1960, but it was not in writing. We are further satisfied that the finding of the Additional District Judge and the High Court that Subah Noor was not a partner of the respondent-firm is based on proper appreciation of the evidence. The appellants have failed to establish that there was any term between the parties, that on the failure to lift the goods, the appellant, will be entitled to forfeit the amount of Rs.25,0 )0. In these circumstances, we are satisfied that the claim of the respondents was rightly decreed.