The facts leading to the filing of the present proceedings, as stated in the plaint, are as follows.
2. The plaintiff No,1 was incorporated and had approached the defendant for grant of facilities for setting up project of Ice Cream at Noori Abad Industrial Estate, Dadu. The finance was duly sanctioned through letter, dated 6th January, 1987 in a manner that Foreign Currency Loan for import of plant and machinery was approved in the sum of Rs, 21.870 million whereas Local Currency Loan for purchase of locally manufactured machinery was approved in the sum of Rs,11 million. At that time, the total estimated cost of the project was assessed at Rs,53.491 million. It is averred in the plaint that after completion of the various formalities, Letter of Credit was established on 29.6-1988 (stated to be 30th June, 1988, in the written statement). As regards Foreign Currency Loan, the parties are ad idem to the effect that the same was disbursed as per the agreement and there was no delay on the part of the defendant. According to the plaintiffs, the Foreign Currency Loan carried interest at the rate of 14% per annum with bi-annual rests. The cost of the project was subsequently, revised and the plaintiff had applied for grant of additional finance in the sum of Rs,3.5 million which was duly sanctioned on 15-12-1988 (Exh.6/6). The amount of finance was repayable over a period of 61/2 years with a grace period of 1-1/2 years. The buy- back price was agreed at Rs,5.826 million. Requisite Finance Agreement was executed between the parties on 20th September, 1989. The Foreign Currency Loan for procurement of locally manufactured machinery, according to the plaint, was later on split into State Bank of Pakistan Loan and Loan from Bank's own resources. The S.B.P. Loan amount of Rs,0807 million was converted to a resale price of Rs,1.113 million which was agreed to be repaid in 16 equal biannual instalments; whereas, the loan from Bank's own resources (B.O.R.) of Rs,10.193 million, with inclusion of mark-up was settled at Rs,26.081 million similarly payable in 16 biannual instalments. It is further averred in the plaint that the imported plant and machinery reached Pakistan between October 1988 to January, 1989 and the plaintiff No,1 arranged Bridge Finance from Pak ,Kuwait Investment Company Ltd. It is the plaintiffs' case that the registration of Trust Deed in favour of Pak. Kuwait Investment Company Limited was delayed on account of objection raised by the defendant which caused further delay in disbursement of Bridge Finance. The plaintiff's case further is that for procurement of locally manufactured machinery, tenders had to be floated by I.D.B.P. and after acceptance thereof, disbursement of finances had to be made to the suppliers of the machinery, directly.
According to the plaint, the disbursement of finances to the suppliers, as above, was unnecessarily and unauthorisedly delayed initially by the defendant for the period from December, 1989 to April, 1990 and for substantial period thereafter which had resulted in delayed commissioning of the project causing loss to the plaintiffs. Besides, it is urged that on account of the above stated delays, the plaintiff No,1 was constrained to request the defendant for Working Capital Loan, initially for Rs,5 million, followed by another request for Working Capital Loan of Rs,7.5 million. After protracted negotiations, according to the plaint, the defendant suggested grant of Rs,10 million by way of Working Capital Loan out of which a sum of Rs,2.5 million was to be adjusted towards mark-up dues. Nonetheless, the defendant did not come out with clear replies which too resulted in delayed commissioning of plaintiffs' project with consequential losses. Eventually, Running Finance Facility to the extent of Rs,10 million was sanctioned on 19th February, 1991, Exh.6/16, which carried mark-up at the rate of 48 paisa per thousand per day for a period of one year from the date of sanction. The repurchase price, calculated at the above-referred mark-up rate, was settled at Rs,12.760 million.
The plaintiffs' further case is that on account of the delay caused in commissioning the project, they were constrained to seek restructuring and rescheduling of the loans/finances which request, too, did not meet any favourable response. On account of such conduct of the defendant, claim for damages in the sum of Rs,500 million has been preferred. The details of the various causes leading to claim for damages are mentioned in paragraphs 24 to 29 of the plaint.
3. The defendant, in its reply, has denied the claim. It is urged, in reply, that the defendant had acted reasonably in responding to various demands of the plaintiff No,1 and had not delayed disbursement of the amount of loans/finances once the same were sanctioned. It is further the case of the defendant that the plaintiff cannot maintain claim for damages or for the alleged loss on account of the time consumed in processing requests of the plaintiffs for grant of various finances. By reference to the dates of sanction and actual disbursement, it is urged through the written statement that the delay could not be attributed to the defendant for non-completion of project of the plaintiff No,1 in time. It is asserted that the delay was caused on account of plaintiffs' own failure in arranging Bridge Financing in time and for lack of proper coordination on their part.
4. On the basis of pleadings of the parties, the following consent issues were adopted by the Court on 12-11-1995:--
(1) Whether the mark-up charged by the defendant-Bank is according to agreement between the parties?
(2) Whether there was any delay in processing of documentation and/or disbursement of Finance etc. and if any, was it on the part of the defendant-Bank?
(3) Whether the plaintiffs are entitled to claim rescheduling/restructuring and/or refinancing?
(4) Whether the local financial assistance was granted to and availed by the plaintiffs on mark-up basis?
(5) Whether there was any agreement between the parties which provided for profit and loss sharing?
(6) Whether the plaintiffs are entitled to alleged damages of Rs,500 million or part against the defendant-Bank?
(7) Whether the plaintiffs are entitled to a preliminary decree for accounts?
(8) Whether the plaintiffs are entitled to release of mortgages and personal guarantees?
(9) What should the decree be?
5. In support of their case, the plaintiffs have examined Nusrat Azeem as Exh.5 whereas the defendant has examined its officer Razine Afaq as Exh.6. When this matter came up for arguments on 15-5-1998 the learned counsel for the defendant produced before me copy of judgment, dated 6-4-1998 passed by another learned Judge of this Court in Judicial Miscellaneous Application No,210 of 1996 in proceedings preferred by the defendant against the plaintiffs under section 39 of the I.D.B.P. Ordinance. The copy of the judgment, dated 6th April, 1998, by consent of both the learned counsel, was taken on record as an admitted document. It was found that as a result of the abovereferred judgment, most of the issues, settled earlier through consent, had to be deleted since any discussion or finding thereon would have amounted to sitting in review or in appeal over the said judgment. The issues were accordingly resettled as follows:--
(1) Whether there was any delay in processing of documentation and/or disbursement of Finance etc., and if any, was it on the part of the defendant-Bank?
(2) Whether the plaintiffs are entitled to alleged damages of Rs,500 million or part against the defendant-Bank?
(3) What should the decree be?
Having found that the evidence in relation to the above-stated issues had already been recorded, the matter was proceeded without fresh/further evidence.
6. I have heard both the learned counsel and with their assistance have gone through the record.
My findings on the above issues are as follows:-- Issue No,1
7. The plaintiffs' counsel in support of this issue, has referred to paragraph 11 of the plaint and evidence of the plaintiffs' witness Nusrat Azeem, relevant portion whereof is as follows:-- "The project had to commence operation within 18 months from the establishment of letter of credit which was established by us through the defendant as per our Agreement. The defendant thereafter resorted to delaying attitude and did not convey decision in time nor disbursed the loan amount as per the agreed schedule. The plaintiff had pointed out and protested against the delays caused by the defendant but the same remained unresponded. The delay on the part of the defendant, referred by me above was caused by delaying bridge finance, processing tender, making payments to supplier resulting in delayed supply, working capital, processing the rescheduling and restructuring of the loan which was eventually done but after our name had been included in the defaulters' List."
8. In reply, the learned counsel for the defendant has referred to the replies contained in written statement and the deposition of its witness Razine Afaq who has stated in his examination-in-chief that there was no delay in documentation on the part of the defendant. Mr. Azizur Rehman has pointed out that the defendant's witness was not put any question in cross-examination about the alleged delay in documentation. According to the learned counsel for the defendant, whatever delay had been caused was attributable to the plaintiffs themselves and had occurred before sanction of the various finances and loan. The learned counsel has asserted that the plaintiffs have failed to specify the documents which were delayed at the defendant's end. As regards demands made by the plaintiffs from time to time for grant of finance or additional finances and the time consumed in processing such demands, it is urged by the learned counsel that the defendant cannot be held liable in such behalf. It was the prerogative of the defendant to examine the requests for grant of additional finances and the plaintiffs cannot claim the right to avail finances with initial processing. Having considered the pleadings and the evidence which has come on record. I find that bulk of the documents filed as evidence show that the defendant had consumed time in processing various requests made by the plaintiffs for grant of finances. However, once the finances/loan was sanctioned, the disbursement had taken place without any substantial delay.
The contention of Mr. Azizur Rehman in this behalf appears to be valid and justified. A Financing Institution cannot be pressed to sanction grant of finance without assessing the extent of requirement and the credibility of the applicant besides examining host of other factors. The plaintiffs have failed to show if the defendant had unauthorized or unreasonably delayed disbursement of the amount of finance/loan after sanction thereof. In the circumstances, my finding on issue No,1 is in the negative and no material has been placed on record to' establish that the defendant was responsible for delay in processing of documentation.
Issue No,2
9. The plaintiff's case in relation to this issue is contained in paragraphs 24 to 29 of the plaint.
Although the various heads and the causes for the loss allegedly sustained by the plaintiffs have been stated in the plaint, the plaintiffs, apparently applying the rule of thumb, have claimed a sum of Rs,500 million by way of damages. In the deposition of the solitary witness of the plaintiffs, the entire evidence put forward is in the following words:-- "I claim damages for losses suffered by us."
The plaintiffs, in the first place, have not given details of the losses nor have quantified the amount thereof. The claim in the plaint is couched in general terms. It is a settled proposition of law that in order to succeed in claim for damages, details of the losses suffered by a party, must be established with clarity and sufficient details. In the present case, the plaintiffs have failed to An offer any details of the losses. Moreover, nothing has been shown to burden the defendant for liability to make good the losses allegedly sustained by the plaintiffs. Mr. Saalim Salam Ansari has not been able to cite any law to contend otherwise. Indeed, the learned counsel for the defendant has referred to section 73 of the Contract Act and has urged that the plaintiffs' claim for damages is too remote and cannot be granted. In the circumstances; my finding on this issue is also in the negative.
10. In view of my findings on the two issues, as above, the plaintiffs' suit is dismissed. The parties, however, are left to bear their own costs.