' The plaintiff has filed the present suit for declaration and injunction.
' The case of the plaintiff is that she under a policy announced by the Government of Pakistan in the year 1973 for Pakistanis serving abroad, imported 12 Bedford Truck chassis through the defendants, who are the sole agents of Vauxhall Motors and have total monopoly for import and assembling in Pakistan. The plaintiff was informed by the defendants that only the chassis in C.K.D.
Condition could be imported by the plaintiff on payment of L 1,105 to the defendants' principal in U.K. While the Trucks were assembled locally by the defendants, who will supply the engine and tyres in Pakistan at a cost of Rs,46,453 per Truck. The plaintiff agreed to pay the said amount and accordingly received a letter from defendants dated 21st March, 1975 confirming the order of plaintiff for 12 Trucks chassis. It is further asserted in the plaint that on or about 14th November, 1975, the defendants addressed a telegram to plaintiff to her New York address, which was re-directed to her at her Azad Kashmir address and delivered to her on or about 25-11-1975. Under this telegram, the plaintiff was asked by the defendants to take the delivery of aforesaid 12 Bedford Trucks by 3rd December, 1975. Consequently, the plaintiff contacted the defendants on 1st December, 1975 and asked for the total amount payable by her with regard to custom duty etc. The plaintiff was given a slip by one of the Sales Executives of the defendants showing a sum of Rs,61,236 to be paid to the defendants as against the agreed amount of Rs,46,453 per Truck towards the local charges, comprising of the cost of engine, tyres and assembling charges, in addition to Rs,14,300 per Truck as sales tax and Rs,10,700 per Truck as customs duty. The plaintiff deposited the amount of customs duty on 4th December, 1975 and approached the defendants for delivery of the aforesaid Trucks offering to pay Rs,46,453 towards the cost of engine, tyres and assembling charges but the defendants refused to deliver the Trucks unless they were paid the demanded amount of Rs,61,236 per Truck and also threatened to recover a further amount of Rs,150 per day per Truck towards the storage charges. The plaintiff, therefore, filed this suit with the following prayers: "(a) Judgment and decree for declaration that the excess demand of the defendant on each unit of Truck amounting to Rs,14,873 i,e. Rs,1,77,396 on 12 Trucks is illegal, arbitrary, unjust and untenable in law and that the defendants are not entitled to recover the same from the plaintiff, and that the plaintiff is entitled to the delivery of 12 Trucks on payment of agreed contract price of Rs,46,453 each Truck only, ' Judgment and decree for injunction restraining the defendants from asking or demanding and/or recovering the above amount of Rs,1,77,396 by way of increase in the price of engine, tyres and assembly charges of 12 Trucks chassis.
' Any other reliefs which this Hon'ble Court may deem fit and expedient under the circumstances of the case;
(d) Cost of the suit."
' The defendants filed their written statement. Their case is that the local charges were to be paid by the plaintiff as were prevailing on the date of delivery; and that the same could be increased without notice as per the terms and conditions of the contract. It is the case of the defendants that on 14-7-1975 they advised the plaintiff of the enhanced local charges which the plaintiff was required to pay. This letter is alleged to have been sent to the plaintiff on her New York address.
' On the above pleadings of the parties, the following consent issues were framed;
51. On what terms and conditions the engine and tyres of the trucks in question were agreed to be supplied by the defendant to the plaintiff and what were the assembling charges?
52. What amount the defendants are entitled to charge on account of engine, tyres and assembling charges for each truck?
53. Whether the defendant is entitled to storage charges for each truck at the rate of Rs,150 per day. If so, from what date to what date?
54. Whether the plaint has been signed and filed by an authorised person?
55. Whether the plaintiff is entitled to any decree?"
' The plaintiff has examined her attorney Mirza Saeed Baig, who has produced various documents while the defendants have examined their Deputy Sales Manager Mr. Nisar Ahmed, who has also produced the two letters. I have heard the learned counsel for the parties. My findings issue-wise are as under:- ISSUE NO.1. There is no dispute with regard to this issue as the parties admit that Letter No,Sales- 1733/DS-75/1 dated 21st March, 1975 constituted the contract. A photostat copy of this letter has been produced as Ext.7 while the original has been produced as Ext.12. This letter on page No,2 under the heading `Note' mentions the terms and condition of the contract and the Note No,1 reads as under:- "C&F prices and local charges indicated above are based on the current manufacturer's prices and labour charges are subject to change without notice. Prices and local charges prevailing at the time of shipment and delivery will be applicable irrespective of when the order is placed or payment made to our Principals."
In view of above condition, it can safely be said that the plaintiff was required to pay the prices and local charges prevalent at the time of shipment and delivery. In view of above admitted position, this issue is answered in terms that the 'local charges' and prices are to be paid by the plaintiff as prevailing on the date of delivery and shipment. With regard to last part of this issue "what were the assembling charges?" there is nothing on the record brought by the parties, as to what actually were the assembling charges. This part of issue is, however, further dealt with in issue No,2 hereunder. ISSUE NO.2.--This is the crucial issue involved in the present suit. The contract (Ext.12) does not give the particulars as to what is comprised of 'local charges'. However, in the plaint para.3 it has been mentioned that the 'local charges' comprised of cost of engine, cost of tyres and assembly charges which fact has not been denied by the defendants. The whole dispute between the parties is with regard to these charges. According to the terms and conditions of the contract (Ext.12) the said local charges were estimated at Rs,46,453 per unit, which were subject to change without notice and, therefore, the plaintiff was liable to pay any enhanced charges demanded by the defendants at the time of delivery. Mr. Muhammad Saleem, learned counsel for the defendants relying on the above-said terms and conditions of the contract has submitted that a due notice was given to the plaintiff on her address while letter Ext.17, this letter is dated 14th July, 1975 addressed to the plaintiff on her New York address, whereas the plaintiff claims that she had since come back from New York and was residing at Mirpur, Azad Jammu & Kashmir, which fact was in the knowledge of the present defendants as is apparent from the telegram sent by the defendants to the plaintiff through her attorney at the address of Mirpur, Azad Jammu and Kashmir. This letter/telegram is dated 10-12-1975 and has been produced as Ext.15. The plaintiff has denied the receipt of the letter dated 14-7-1975 (Ext.17) and has submitted that no due notice of enhanced local charges was given to the plaintiff. Mr. Muhammad Saleem, learned counsel has submitted that the despatch of this letter to plaintiff be taken to be a notice of enhanced charges under the provisions of Sale of Goods Act. As against this Mr. Rehan Hassan Farooqui, learned counsel for the plaintiff has submitted that this letter in the first instance has not been proved to have been delivered to the plaintiff. He has further submitted that this is only a cyclostyle letter which shows the local charges at Rs,61,236 per unit but the said charges are shown to be approximate and are not the exact amount of local charges. He has further submitted that this letter only points out as to what would be the approximate customs duty, sales tax and local charges without offering the delivery of the goods. It is contended by the learned counsel that this letter, therefore, even if assumed to have been despatched to the plaintiff cannot be treated as a proper notice as required under section 21 of the Sale of Goods Act. As against this Mr. Muhammad Saleem, learned counsel for the defendants submitted that it is section 23 of the Sale of Goods Act which will cover/govern this case and not the provisions of section 21. I have considered the provisions of two sections relied upon by the learned counsel for the parties. Section 23 of the Sale of Goods Act deals with sale of unascertained goods and appropriation while the provision of section 21 reads as under:- "21. Specific goods to be put into a deliverable state. Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing is done and the buyer has notice thereof."
A simple perusal of the above provisions will show that it is section 21 of the Sale of Goods Act which would govern the present case as in the present case also the seller was required to do something to the goods for the purposes of putting them B into the deliverable state and, therefore, the property in goods in this case would pass to the buyers only when the goods were brought into deliverable state and the buyer had notice thereof. In these circumstances the letter dated 14-7- 1975, not offering the delivery of goods, cannot be treated to be a notice as required under section 21 of the Sale of Goods Act. The learned counsel for the plaintiff has placed reliance on an unreported case of Muhammad Sharif v. National Motors Ltd. (Suit No,1 of 1976) which was decreed by Saleem Akhtar, J. (as his Lordship then was) on 10th May, 1988, wherein also his Lordship had held that these contracts were governed by section 21 of the Sale of Goods Act. It may be observed that above-decided case of this Court is on all fours with the present case as the defendants in the two suits are the same and the point at issue is also with regard to enhanced demand of "local charges" made by the defendants on the import of Bedford Trucks by the plaintiff in that suit in the year 1974/75. It has also been observed by his Lordship in the above-cited case that the defendants, had not obtained the Government sanction for enhancement of local charges till October, 1975 and, therefore, the delivery was delayed with ulterior motive to recovery enhanced 'local charges' which were so enhanced on 22-10-1975. This fact as in the present case is supported by the defendants own letter (Ext.17) wherein they have said that these enhanced charges are approximate charges, while by the said letter the delivery of goods was not offered. Learned counsel for the defendants has further placed reliance on a slip (Ext.10), this is a handwritten slip given to the plaintiff on 1st December, 1975 by an officer of the defendants which shows the following three charges:-{{TABLE TEXT}} Local charges. Rs,61,236 Sales Tax. Rs,14,350 Customs duty. Rs,10,700 ' This slip also does not mention any break up of 'local charges' nor does it show as to how these charges were assessed as against the originally fixed local charges Rs,46,453 per unit. It may be worthy of note to point out here that the defendants witness who has been examined has in his cross-examination stated that "I see slip Ext.10 and say that the charges mentioned therein are approximate charges as demanded from the plaintiff for payment." This witness of the defendants when confronted with the actual price of tyres, engine and assembly charges has replied that he cannot say if those were the prices at the relevant time. This witness has further in his cross- examination 'stated that he does not know if the various letters being Exts.13, 14, 15, 17 and 18 were despatched by the defendants or received by the plaintiff. The defendants have also not examined their officers, who had written the said slip Ext.10 the above-said letters. I would, therefore, hold that the defendants have failed to prove that the letter Ext. 17 was delivered to the plaintiff or that the plaintiff had been put on notice as required under section 21 of the Sale of Goods Act. It may also be observed that the defendants, though, could increase the local charges as per terms of contract but the same had to be based on certain facts with regard to increase in rates in market, labour charges etc. In the present case, no evidence has been produced by the defendants in this behalf. On the contrary, their own witness has stated that the charges so demanded by the defendants are only approximate charges. I would, therefore, answer this issue against the defendants and hold that the defendants are entitled to charge on account of engine, tyres and assembling charges for each Truck as per the amount mentioned in the contract Ext.12. The burden of this issue is on the defendants, who have failed to prove the same.
ISSUE NO.3. The defendants have claimed storage charges at the rate of Rs,150 per day through their telegram dated 10th December, 1975 (Ext.15). As already held on Issues Nos.1 and 2, the delay was caused due to default and neglect on the part of the defendants who demanded enhanced local charges which the plaintiff was not liable to pay. In view of above, my finding on this issue is in the negative.
ISSUE NO.4. On this issue Mr. Muhammad Saleem, learned counsel for the defendants has argued that the plaint has been signed and filed by one Muhammad Vazir, who is an unauthorised person and, therefore, the suit should be dismissed. The title of the plaint shows that the plaintiff has filed this suit through her duly constituted attorney Muhammad Vazir son of Sharaf Ali, who has signed and verified the plaint. Of course, the power of attorney has not been exhibited in evidence but the record shows that a photostat copy of the power of attorney has been placed on record, which is dated 2nd December, 1975 and is attested by Notary Public Mr. A.H. Siddiqi, Advocate, Rawalpindi.
By this power of attorney, the plaintiff in paras.2 and 3 has categorically authorised the attorney Muhammad Vazir to take proceedings in any Court by way of suits, appeals, writ petitions or such other proceedings and also to sign, verify plaints, written statements, memos of appeal, writ petitions or such other statements or applications, papers or affidavits as may be required. This General Power of Attorney was given in respect of import of 12 Bedford Truck Chassis, which are the subject-matter of the present suit. The suit has been instituted on 19th December, 1975 by the attorney. In these circumstances it cannot be said that the plaint has been signed by an unauthorised person. Mr. Muhammad Saleem, learned counsel for the defendants has submitted that under Order VI, Rule 14, C.P.C. a plaint has to be a signed by the party himself and not by a general attorney. I am afraid I cannot subscribe to above-said contention of the learned counsel as Order III, rule 1, C.P.C. Permits acts to be done by recognized agent of the party to a suit and rule 2 of Order III, of Civil Procedure Code provides that persons holding Powers of Attorney authorising them to make and do such appearance, applications and acts on behalf of such parties are amongst the recognised agents. Reliance may be placed on the case of Messrs Kohinoor Textile Mills Ltd. v. Messrs Gharo Textile Mills Ltd. (PLD 1986 Kar. 157(2) wherein Haider Ali Pirzada, J., has held that person holding a Special Power of Attorney from the plaintiff authorising him to sign the plaint and file the suit on behalf of the plaintiff is competent to do so. Also in the case of Rafaqat Ali Khan v. Fida Muhammad Khan (PLD 1986 Pesh. 50) a learned single Judge of Peshawar High Court has held that institution of suit by attorney on behalf of principal would be competent where the said attorney held power of attorney authorising him to make appearances, applications and do acts on behalf of the prinicpal. Accordingly, I answer this issue in the affirmative.
ISSUE NO.5: The learned counsel for the defendants has raised a plea that the plaintiffs witness was not authorised person to give evidence on behalf of the plaintiff as the Power of Attorney held by him was executed at Mirpur, Azad Jammu and Kashmir; and that Azad Jammu and Kasmir not being part of Pakistan as provided in Article 1 of the Constitution of Islamic Republic of Pakistan, 1973, no presumption could be attached to such Power of Attorney. He has placed reliance on the provisions of Article 95 of Qanun-e-Shahadat and has also placed reliance on the case of Ziaudiin Siddiqi v. Mrs. Rana Sultana and another (1990 CLC 645) and also the case of Messrs Bengal Friends & Co., Calcutta (PLD 1969 SC 477). Be that as it may, oven if the evidence of this witness is not taken into consideration then also the documents which have come on record and which stand admitted by both the parties would substantiate the case of the plaintiff as while dilating upon issues No,1 to 4 above, I have placed my reliance on the said documents and admissions given by the defendants' witness in his cross-examination. In view of above facts, I do not find any force in this submission of the learned counsel for the defendants.
' The result of the above discussion is that the present suit of the plaintiff stands decreed as prayed with costs.