' By a contract dated 11-8-1969 (Exh. 5) defendants agreed to sell to the plaintiffs approximately 1200 tons manganese ore at the rate of Rs, 22 per long ton. According to the terms of the contract, the plaintiffs were to take delivery of 250 tons immediately against cash payment and the balance in three lots within 2 months from the date of the contract subject, however, to the minimum quantity of lot being 250 tons. They paid to the defendants an amount of Rs, 1a.00 as deposit on 4- 8.1969.
2. Against the column entitled "quantity and quality" in the contract it is mentioned that the entire lot of manganese ore under the charge of the defendants lying in the tee. P. T. Approximately 1200 tons was on "as is where is basis" and against the column with a heading 'price' the price mentioned is Rs, 22 per ton.
3. The plaintiffs took delivery of 250 tons of the ore on 11-8-1969, against payment of Rs, 5,503. They took further deliveries of 250 tons each on 26-8-1969 and 18-9-1969 against payment of Rs, 5,500 each Thereafter, the plaintiffs paid to the defendants another sum of Rs, 8,900 on 27-9-1969 for the balance quantity of 450 tons. However, they were given delivery of 73 tons 3 underweight 1 quarter and 8 pounds as against the last installment of 450 tons for which they had p Jid the amount to the defendants. Thus the defendants delivered a total quantity of 823 tons 3 underweight 1 quarter and 8 pounds of the value of Rs, 18,106 against the total contracted quantity of approximate 1200 long tons and against the total payment of Rs, 26,4C0.
4. The stand taken by the defendants in their letter dated 17-11.1969 (Exh. 12) was that they had sold the goods on "as is and where is basis" and that they had delivered the entire quantity which was lying under their charge in the Karachi Port Trust premises.
5. The plaintiffs by their letter dated 20.10-1969 (Exh. 14) claimed from the defendants the refund of the excess amount of Rs, 8,294 paid by them for which no delivery was given. They also claimed damages for breach of the contract for non-delivery of 376 tons 16 underweight 2 quarters and 20 pounds at the rate of Rs, 140 per ton. The defendants however, denied their liabilities for the excess amount as well as for damages for breach of contract though of course, later on by their letter dated 29-1-1970 (Exh. 17) they offered to refund the excess amount of Rs, 8,290.35 and enclosed a cheque for that amount therewith subject to the condition that the acceptance of the same by the plaintiffs would give complete discharge to the defendants. The plaintiffs did not accept the payment and have brought the present suit for recovery of the aforesaid amount of Rs, 8,295 and for Rs, 44,486 on account of damages for breach of the contract. The plaintiffs have also claimed interest at 9 per cent. Pelt, annum on the total amount of Ks. 52,780 and costs of the suit-,
6. On the pleadings of the parties the following issues were framed : ISSUES
(1) What quantity of manganese ore was contracted to be sold by defendants by agreement dated 11th August, 1969 ?
(2) Whether defendants committed breach of the contract by failing to give delivery of balance quantity of maganese ore ?
(3) To what amount of damages if any, the plaintiffs are entitled to ?
(4) What should the decree be ?
7. The plaintiffs in support of their claim examined one of their partners Sultan Ahmed (Exh. 19) and two more witnesses namely, Daud son of Haji Ebrahim, the Managing Director of Daud H. Ebrahim & Co., Ltd. (Exh. 20) and Abdur Razak, a broker by profession who was carrying on business of brokerage in mineral transactions. The defendants in rebuttal examined Yakoob Ali Khan, their godown Inspector (Exh. 22). The learned Advocates for the parties produced a number of documents which were brought on record marked as Exhs. 5 to 18 and 19/1 to 19/17 and 20/1 and 22/1. According to the learned Advocates for the parties following documents are material for the decision of the issues involved in the suit and they referred to these documents only during the course of their arguments. However, I have taken into consideration all the documents produced by the parties while writing this judgment. {{TABLE TEXT}}
1. Contract
2. Letter from the plaintiffs to the defendants
3. Letter from the plaintiffs to the defendants
4. Letter from the plaintiffs to the defendants I. Letter from the plaintiffs to the defendants
6. Letter from the plaintiffs to the defendants
7. The defendants' letter to the plaintiffs
8. Proposed contract
9. Letter from the plaintiff's Advocate to the defendants
10. Letters from the defendants' Advocate to the plaintiffs
11. The plaintiffs' letter to the defendants .12. Contract between the plaintiffs and Messrs Daud H. Ebrahim & Co. Ltd,, Dated 11-8-1969 (Exh. 5)
11-8-1969 (Exh. 7)
26-8-1969 (Exh. 8)
18-9-1969 (Exh.
27-9-1969 (Exh. 10)
27-9-1969 (Exh. 11)
17-11-1969 (Exh. 12)
8-10.1969 (Exh. 13)
20-12-1969 (Exb. 14)
29-1-1970 & (Exh. 17 & 6-2-1970 Exh. 18)
11-10-1969 (Exh. 19/1)
23-8-1969 (Exh. 19/3)
13. The claim Bill preferred by Dated Daud H. Ebrahim & Co. Ltd.. 15-11-1969
14. The contract between Daud & Co. Ltd. And East Pakiskan Industrial Development Cor- poration 23-11-1970
8. My decision on the issues is as follows Issue No, 1.-The quantity agreed to be sold by the defendants is, mentioned in the contract (Exh. 5) wherein under the heading "quantity and quality", it is mentioned : {{TABLE TEXT}} "Entire lot of manganese ore under our charge lying in Karachi Port Trust premises (approximately 1200 tons) 'on as is where is hasis'."
The decision on this issue, according to the learned Advocates for the parties, material from two points of view, firstly, with regard to the claim for refund of excess amount alleged to have been paid by the plaintiffs; and secondly, for award of damages, if any. The defendants received a total amount of Rs, 26,400 from the plaintiffs which is proved by Exhs. 6 to 10) as these documents contained the acknowledgements. This amount covers the price of the entire quantity of 1200 tons of the ore calculated at the agreed rate of Rs, 22 per long ton. It is also not disputed that the ore delivered against the contract was 823 tons 3 cwt. 1 qtr. 8 lbs., leaving the undelivered quantity of 376 tons 16 cwt. 2 qrt. 20 lbs. Of the value of Rs, 8,294 which amount according to Mr. Villain, the defendants were ready and willing to refund as mentioned in their letter (Exh. 17) addressed to the Advocate for the plaintiffs.
9. However, the contention of Mr. Z. C. Villani Advocate for the defendants is that the defendants had agreed to sell to the plaintiffs whatever quantity of the ore was lying in the Karachi Port Trust premises and on "as is and where is basis" and that they had not agreed to sell any specified quantity but had incidentally mentioned the same to be 'approximately' 1200 tons. In the alternative, Mr. Villain contended that if it is held that the quantity agreed was approximately 1200 tons then by delivering to the plaintiffs the quantity of 823 tons 3 cwt. 1 qrt. 8 lbs., the defendants fulfilled the contract as what was agreed to be sold was not the actual quantity of 1200 tons but 'approximate' quantity of 1200 tons.
' So far as the first contention is concerned it can be disposed of by pointing out that the words "entire lot of manganese ore under our charge lying in the Karachi Port Trust premises" refer to the place where the goods were lying and the sentence "as is where is basis" refer to quality, or the condition of the ore and not to the quantity. The contract specifically provides rate at which the ore was agreed to be sold i,e, Rs, 22 per long ton.
' The fact that the defendants received a total amount of Rs, 26,400 including the deposit of Rs, 1,000 on 4 different dates in my opinion, goes to prove that the quantity which they agreed to sell to the plaintiffs was approximately 1200 tons and not the bulk or unspecified quantity. If the-quantity available with them was less than what they agreed to sell to the plaintiffs they would not have accepted payment for the entire quantity of 1200 tons.
' Further, other terms of the contract such as price and the provision for delivery made under the heading of 'Delivery' clearly shows that what was agreed to be sold was manganese ore, approximately 1200 tons at the rata of Rs, 22 per long ton. If the entire lot was intended to be sold on "as is where is basis" it was not necessary to mention any quantity or rate per long ton. The words "as is where is" used in the contract, therefore, in my opinion, refer to only quality and or the condition of the goods and not to quantity and I am fortified in my opinion by the fact that the defendants accepted first payment of Rs, 5,500 towards the sale price of 250 tons of manganese ore and acknowledged it by Exh. 7 and issued their delivery order for the said quantity and again accepted another amount of Rs, 5,500 and acknowledged it vide Exh. 8 and issued another delivery order for 250 tons and then they again accepted payment of Rs, 5,500 for 250 tons and acknowledged it under Exh. 9 and issued their delivery order and then finally they received last payment of Rs, 8,900 for the balance quantities of 450 tons and acknowledged it vide Exh. 10 and issued further delivery order. The sum of Rs, 1,000 paid at the time of entering into the contract was also adjusted against the last payment and delivery order. Therefore, it is clearly established that what the defendants agreed to sell was approximately 1200 tons manganese ore and not bulk or an unspecified quantity as claimed by the defendants.
9-A. Had the defendants intended to sell lesser quantity than at least they would not have accepted payment for the entire quantity for the delivery whereof they had issued four separate delivery orders. It may be useful to mention here that the entire contract was to be performed within a period of two months from the date thereof which time was extended to 31-10.1969, by the defendants by their letter dated 24-9-1969. If the defendants had not contracted to sell the quantity of 1200 tons but only the quantity available with them as advocated by Mr. Villani, at least during all this period they ought to have found out the exact quantity which was available with them and informed the plaintiffs accordingly. Mr. Villani has pointed out that in one of the letters (Exh. 12) addressed by him on behalf of the defendants to the plaintiffs he stated that manganese ore was pledged with the Bank and the pledged documents show the quantity supposed to be 1200 tons but actually what was agreed to be sold was the actual quantity that was lying on the site and that the actual quantity which was available on the site was only 823 tons 3 cwt. 1 qtr. 8 lbs.
Which was delivered to the plaintiffs. Eiowever what Mr. Villani has stated in his reply is, in my opinion, an afterthought, moreover, defendants' witness Muhammad Yaqub in his evidence has not stated so. What he stated in his deposition is "after the delivery of the goods no additional quantity whatsoever, of manganese ore was left at the yard. Quantity of 1200 tons in the contract was same as mentioned in the pledged documents. I cannot give reason why there was shortage of goods. It is possible that certain quantity has been lost due to rain and heat". Therefore, it will be seen that the statement made by Mr. '1g illani in his letter does not find support by the above evidence led by him. If the entire quantity was delivered, Muhammad Yaqub, would have stated so but he said that he could not give reason why there was shortage of goods that were lying in the premises of K. P. T.
We do not know what happened to goods lying in the K. P. T. After the date of the contract. In fact the defendants by their letter dated 17-11-1969 (Exh. 11) offered to sell to the plaintiffs an additional quantity of 192 tons while the time for delivery of the contract quantity of 1200 tons was extended till 31-10-1969 as mentioned in Exh.
11. If the defendants had not the full contracted quantity of 1200 tons of manganese ore in their stock, they would have not only informed the plaintiffs about the same but would not have also offered to sell the additional quantity. I therefore, hold that what the defendants agreed to sell was approximately 1200 tons of the manganese ore. It appears from the evidence of Yaqub Ali Khan that the defendants had the contracted quantity rather 192 tons more but how the stock was decreased or diminished no satisfactory evidence has been brought on record.
' To sum up I may state if the quantity agreed to be sold was bulk and unspecified as contended by Mr. Viilani firstly, the rate at which the ore was agree to be sold would not have been mentioned in the control, secondly, the amount of Rs, 26,400 for the entire quantity of 1200 tons would not have been accepted and thirdly, the defendants would not have offered to sell to the plaintiffs additional quantity of 192 tons of the ore and lastly the defendants would not have offered to refund the amount of Rs, 8,294 received by them in the excess of the price of ore delivered by them to the plaintiffs.
10. As regards the other contention that the word 'approximate' would cover the short fall of 376 tons 16 cwt. 2 qrt. 20 lbs. I may refer to the ordinary dictionary meaning of the word 'approximate' which is : "very near, in position of character, closely resembling, nearly approaching to accuracy, fairly or reasonably correct (see the "English Oxford Dictionary)."
' This word has also been judicially considered in an English case namely, Bellottf v. Chequers Developments Ltd. (1) wherein Hilbery, J. At page 92 of the report observed : ' and I find myself unable to say that when a measurement of a rear garden is made to a purchaser asking for particulars i,e, footage details, it is true if you only give him 36 feet when the stated measurement is 40 feet. I cannot believe that 36 feet is approximately 40 feet. I can understand 36 feet being approximately 35 feet."
11. The word 'approximate' has the same meaning as the word 'about' as was hold by Schulz, J. A. In a Canadian case : Scheming v. Scott (2) and the relevant observation is found at page 237 of the report in the following words :- "The Highway Traffic Act, R. S. M., 1954, C. 112, section 63 (1), provides that when two vehicles approach or enter an intersection at 'approximately' the same time, the driver of the vehicle on the left shall yield right of way. The word 'approximately' as used in the above subsection means 'about' or 'nearly'."
12. The word 'about' used in a contract in relation to the quantity was considered by a learned Single Judge of this Court in Afidullah Agencies v. Government of Pakistan (3). In that case a learned Single Judge of this Court while considering the word 'about' used in a contract in relation to the quantity of 100000 tons of rice against which a quantity of 37000 tons only was delivered, had found that there was a breach of the contract.
13. The word 'thereabout' in relation to number or quantity according to the Oxford English Dictionary has the same meaning as the word 'about' and was considered in The Resolven's case
(4) in relation to the
(1) (1936) 1 A E R 89 (2) (1960) 32 W W R 234
(3) PLD 1971 Kar. 479 (4) (1892-93) 9 T L R 75 ' figure of 2000 tons and wherein a margin of 5% was considered to be a fair margin to be allowed.
The meaning of this expression has further been discussed in an English decision namely, Morris v.
Levison (I), wherein Brett, J. At page 156 of the report, relying on two earlier decisions in Thomas v.
Clarke (2) and Hunter v. Fry (3) observed as follows :- "What, then, is the meaning of the word 'about' ? This is partly matter of fact and partly matter of law. I think the direction to the jury has always been that the deviation must not be very large. The differences must be such as people would ordinarily consider as included in the word `about'. There can be no exact rule of law as to the percentage of difference allowed, but I have known juries often allow In practice 3 per cent."
Therefore, it will be seen that when word 'about' or 'thereabout' or 'approximate' is used in conr ection with quantity, the consensus of judicial opinion is that the deviation from the contracted quantity should not be more than three to five per cent. In the present case. Against the contracted quantity of 1200 tons, only a quantity of about 823 tons was delivered and tee short fall of 376 tons, 16 cwt. 2 qrt. And 2 lbs. In my opinion, would not be covered by the word 'approximate'. It could cover a shortfall of 36 to 60 tons. Since however, the defendants accepted price of entire quantity of 1200 tons and issued delivery orders tor the said quantity and also offered an additional quantity of 192 tons vide Exh. 13 the word 'approximate' lost its significance and therefore, the defendants were bound io deliver the entire contracted quantity of 1700 tons.
' I therefore, hold that the defendants sold approximately 1200 tons of the ore and after having accepted payment of 1200 tons of the ore and having issued delivery orders for the same, were bound to deliver the full quantity of 1200 tons.
14. Issue No, 2.-Since I have found under issue No, 1 that the defendants agreed to sell approximately 1200 tons and also accepted payment for the full quantity of 1200 tons and issued delivery orders for the same but they delivered only 823 tons, 3 cwt., 1 qrt. And 8 lbs. And failed to deliver the balance quantity of 376 tons, 16 cwt. 2 qtr. And 20 lbs., therefore, they committed breach of the contract. j
15. Issue No, 3.-It is well settled under the provisions of section 73 of the Contract Act, that a ratty to a contract of sale of goods on its breach is entitled, from the other party damage on the basis of difference between the contract rate and the market rate on the date of the breach. Aecordin to the contract the goods were to be delivered by 11-10-1969 which time was extended till 31-10-1969, therefore 31-10-1969 is the material date. The damages are to be calculated on the basis of difference between contract rate and the market rate on 31-10-1969. Sultan Ahmed P. W. 1 in his deposition tExh. 18) has stated "at the time of breach of contract the market rate of manganese was about 150 per ton. However, I have claimed damages on the basis of my sale price to Messrs Daud Ebrahim & Co. Ltd".
16. That sale by the plaintiffs to Messrs Daud Ebrahim & Co. Ltd., as proved by Exh. 19/3 was at the rate of Rs, 120 per ton. The state. Ment of Sultan Ahmed that at the time of breach of contract the market rate of manganese was about Rs, 150 per ton has not been challenged by
(1) (1876) 1 C P D 155 (2) 171 E R 702
(3) 106 E R 420 ' Mr. Villain in his cross-examination of this witness. Besides Daud P. W. 2 has stated that at that time when he preferred his claim to the plaintiffs the market rate of the ore was between Rs, 140 and Rs, 150 per ton. He had preferred his claim on 15-11-1969 vide Exh. 19/17 and again this statement was not challenged in cross-examination by Mr. Villain. Further, Abdur Razzak P. W. 3 (Exh. 21) in his cross-examination to Mr. Villain has stated "the offer was below market rate. At that time the market rate was between 160 to 170 per ton and I had brought about transaction at this rate. Initially the Bank demanded Rs, 150 per ton but I do not know why the Bank sold at such low rate as Rs, 22 per ton." By the evidence of Sultan Ahmed Daud and Abdul Razzak it is clearly established at the time of the contract as well as on the date of the breach of the contract and at the time when Daud preferred his claim the market rate was between Rs, 140 to Rs, 170 per ton.
Although, the plaintiffs have claimed in the plaint damages calculated at the rate of Rs, 140 per ton, which according to them was the market rate. But in his deposition Sultan Ahmed a partner of the plaintiffs has stated that the plaintiffs have claimed damages on the basis of their resale price to Messrs Daud Ebrahim & Co. Ltd., which was at Rs, 120 per ton. Their claim for damages, therefore, is less than the market rate mentioned by all the three witnesses. The only witness examined on behalf of the defendants namely, Yaqub Ali Khan (Exh. 22) has not said a word about the market rate at the time of breach or otherwise. Moreover, the defendants have not led any evidence in rebuttal on this issue. The only argument advanced by the learned counsel for the defendants is that the breach took place on 31-10-1969 and the plaintiffs have failed to prove the market rate on that day and therefore they are not entitled to any damages but the contention is not valid as the rates at the time of the contract and at the time of breach of the contract and on 15-11-1969, have been proved. Since there is no evidence in rebuttal even the question of weighing the same does not arise. Even if the plaintiffs had failed to establish the market rate on the date of breach in the circumstances of this case, the resale price of the ore to Messrs Daud Ebrahim & Co. Ltd., would, in my opinion, form a proper basis in view of the judgment of the Supreme Court in Messrs A. Z. Co. v.
Government of Pakistan (14 wherein Ex-Chief Justice of Pakistan Mr. Justice Hamoodur Rahman at p. 319 of the report observed as follows 3- "There can be no manner of doubt that in case of this nature, where goods had to be imported from foreign countries, the supplier was at least entitled to be placed in the same situation with respect to damages as if the contract had been performed. Loss of profits which the supplier could reasonably have been expected to earn may well, in such circumstances, be treated as a fair measure of compensation for the breach."
' I may mention here that Messrs Daud Ebrahim & Co. Ltd., had resold the same ore to East Pakistan Industrial Development Corporation on 23-11-1970 at the rate of Rs, 358 per ton but this resale is not material to establish the market rate at the relevant time because this resale took place after more than one year, nevertheless this resale shows continuous trend of rising market price of this mineral.
17. Since the plaintiffs have at the trial claimed damages on the basis of difference of resale price and contract price which is less than the market rat on the date of breach therefore, they are entitled to the same. The amount oil (1)PLD 1973 SC 311 ' damages for the undelivered quantity of 376 tons 16 cwt., qrt.. 20 lbs. .Calculated at the rate of Rs, 98 per ton (Rs, 120-22=98) comes to Rs, 36,921.50.
18. Issue No, 4.-The plaintiffs are therefore, entitled to a sum of Rs, 36,921.50 on account of damages.
They are also entitled to refund of the excess price paid for the undelivered quantity which amount as admitted by the defendants, is Rs, 8,294. It is correct that the defendants had offered to refund this amount by their letter dated 29-1-1970 (Exh. 17) but they had put a condition that it should be accepted by the plaintiff in full and final settlement. Therefore, the plaintiffs are entitled to a total sum of Rs, 45,215.50. The plaintiffs are also entitled to interest on the amount of Rs, 8,294 at the rate of 9 per cent per annum from the date of the suit till the date of decree. The plaintiffs shall also have interest on the decrial amount from the date of the decree till the payment at the same rate as mentioned above. The plaintiffs shall also be entitled to proportionate costs as against their claim of Rs, 52,780 the suit is being decreed for a total sum of Rs, 45,215.50.
19. In the result the suit is decreed as aforesaid.