' This judgment will also dispose of R.F.A. 71 of 1994 which has been filed by the plaintiff for enhancement of the decretal amount as both the appeals have been directed against the same judgment and decree arising from the same suit.
2. This is defendant's appeal which has been directed against judgment, dated 15-1-1994 through which the suit filed by the respondent was partly decreed to the extent of recovery of an amount of Rs,10,23,200 without any interest.
3. The facts of the case relevant for the disposal of both the appeals shortly stated are that respondent filed a suit for the recovery of damages to the tune of Rs,15,73,200.
4. According to the facts disclosed in the plaint the respondent was dealing in the business of carpets and had been exporting carpets to other countries. According to instructions of State Bank of Pakistan the business of export could only be carried out through an authorized agent and in no case direct export/despatch of goods without prior authority of the State Bank was permissible. The plaintiff who had opened an account in the appellant-bank approached the appellant and appointed it as authorized dealer for the exportation of a goods and in this connection necessary documents were executed.
5. The respondent went on averring that it received an order for the supply of hand-knitted woollen carpets from M/s Oriential Gallery, 24-Van Wagenen A.V. New Jersy, U.S.A. The appellant was appointed as authorised dealer for the Export of the said items. Negotiations for the export were done through the appellant and the appellant was also requested for the loan facility under the Export Finance Scheme which was granted to the extent of Rs,6,00,000 and in this connection necessary documents were executed between the respondent/plaintiff and the appellant.
According to the plaintiff in these documents the items to be imported, the name and other credentials of the exporters were also disclosed to the appellant and appellant after verification and satisfying itself about bona fide of the export, the description of the consignee abroad i,e, M/s Oriental Gallery and the their credentials, signed form 'E' for onward submission to the State Bank of Pakistan.
6. According to the averments the respondent sent the shipment of 22 bales containing 66 pieces of hand knitted woollen carpets after paying all the charges of Airway bill and other expenses on 1st August, 1987 to M/s Oriental Gallery aforementioned and forwarded necessary documents to the appellant for onward delivery to the customer of the plaintiff. It was clearly stated that the aforementioned documents should be delivered at the latest by the 1st of September, 1987 and the appellant bank being a authorised agent of the plaintiff/respondent was legally bound to deliver the aforesaid documents to the customers of the plaintiff within due date but due to the negligence on the part of the appellant these documents were not delivered by 28th September, 1987 and the said customer of the plaintiff wrote a letter to the plaintiff that in spite of several confirmation no news about the shipment or the documents as such, they cancelled the order not only of the carpet in question but other orders also placed with the plaintiff for other items, therefore, due to the said reasons and negligence and carelessness of the appellant the plaintiff's reputation in business was adversely affected.
7. It has been stated in para. No,4 of the plaint that due to the above mentioned reasons and cancellation of order for the supply of abovementioned items the plaintiff suffered a lot i,e, the profit which would have arisen out of the contract and also of future orders which would have also been given profit to the plaintiff and the loss of reputation of the plaintiff. The appellant was.
Approached for the payment of damages after their assessment by mutual agreement but the appellant failed to pay. It has been admitted in the plaint that the appellant-bank wrote a letter to the plaintiff bringing to its notice that drawee did not maintain an . Account with the bank and the drawee/customer was not available therefore, full particulars of the customers should be provided.
According to the plaintiff the particulars should have been asked for before signing form 'E' by the appellant becoming the plaintiffs authorised agent. A total amount of Rs,15,73,200 was claimed in the plaint as damages the details of which as given in para. 6 of the plaint is as follows:-- {{TABLE}} Price of the Invoice (Shipment) Rs,8,53,200.00 Order cancelled and interest lost at 20% Rs,3,20.000 Advance already paid for exporting carpetsl Rs,2,00,000.00 Mental torture and other expenses. Rs,2,00,000.00 Rs,15,73,200.00
8. The plaintiff served notice on the appellant for the payment of the said amount but the same was declined, therefore, the suit was filed from which this appeal has arisen. The suit was contested by the appellant by filing written statement. A number of preliminary objections were raised. It was stated in the written-statement that the appellant dealt on behalf of the plaintiff with the Merchants Bank New York, U.S.A. For the consignment in question i,e, verification of the documents to the said Merchants Bank of New York. It was admitted that the plaintiff obtained a loan of Rs,6,00,000 and documents in this behalf were executed and that the appellant dealt with the foreign bank on behalf of the plaintiff and documents in this behalf were despatched to the Merchants Bank of New York U.S.A., not once but twice under the instructions of the plaintiff which were returned by the Merchants Bank of New York with certain remarks. It was specifically pleaded in the written statement that the relevant documents were sent to the concerned bank on 12-8- 1987 after they were received from the plaintiff on 9-8-1987. It was specifically stated that in U.S.A.
The customer of the plaintiff namely M/s Oriental Gallery, 24 Van Wagnen Jersy City No,7306 U.S.A, through letter, dated 26-8-1987 that they had contacted the drawee and were advised that the mentioned collection did not belong to them and advised drawer accordingly. After this on the written-request of the plaintiff on 9-9-1987 the documents were again sent on 12-9-1987 second time which were again returned through letter, 25-9-1987 by the Merchants Bank New York with the following remarks:-- "The drawee does not maintain an account with our bank and we are unable to contact them by mail or by phone."
' It has also been mentioned in the written-statement that the Merchants Bank of U.S.A. Wrote letter to the appellant on 8-12-1987 to the following effect:-- "Please note that the drawee does not maintain an account with our establishment and it was in the best interest of your bank to return the documents to our complete discharge."
' In these circumstances it was pleaded that it was the case of negligence of the plaintiff himself and not of the defendants and it was prayed that the suit may be dismissed.
9. The trial Court reflected the controversies arising from the pleadings of the parties in the following issues:--
(1) Whether this Court has no jurisdiction to try this suit, if so its effect? OPD.
(2) Whether the suit is not maintainable in its present form, if so its effect? OPD.
(3) Whether the suit is not valued for the purposes of court-fee and jurisdiction, if so its effect? OPD.
(4) Whether the suit is bad for non-joinder of necessary party, if so, its effect? OPD.
(5) Whether the plaintiff has not come in the Court with clean hands, if so, its effect? OPD.
(6) Whether the suit is false, frivolous and has been filed with mala fide intention, if so, its effect?
OPD.
(7) Whether the consignment documents were not delivered to the foreign buyer due to negligence/bank laxities of the defendant, if so, its effect? OPP.
(8) Whether the plaintiff has suffered loss of business and damages including the expenses owning the under negotiation of documents and failure for disposal, if so, its effect? OPP.
(9) If the above issues numbers 7 and 8 are proved whether the plaintiff is entitled to recover the damages of Rs,15,73,200 from the defendant? OPP (9-A) If the above issues Nos.7 and 8 are proved whether the plaintiffs are entitled to recover the damages of Rs,15,73,200 from the defendant if not then to what extent? OPP.
(9-B)Whether the defendant was bound to verify and check the credentials of the importer i,e, M/s Oriental Gallery including his bank account at the Merchants Bank of New York and credit worthiness? If so, its effect? OPP.
(9-C) Whether the defendant bank failed to follow any uniform customs and practice relating to the documentary transaction? OPP.
(10) Relief.
10. In support of its case the respondent/plaintiff examined Shahid Usman as P.W.1 and Muhammad Ali as P.W.2. The appellant examined Muhammad Afzal as D.W.1 and Ghulam Sarwar as D.W.2.
11. The documentary evidence produced by the appellant through D.W.2 consists of documents from Exh.D.l to Exh.D.28 some of which were admitted in evidence subject to objection raised. Oy the plaintiff, whereas the documentary evidence produced by the plaintiff in the cross-examination of D.W.2 consists of documents Exhs.D.W.l/P.1 to D.W.1/P.7.
12. The trial Court answered issue No,1 in favour of plaintiff. Issue No,2 was decided against the appellant on the ground that no evidence was produced to prove the said issue. Issue No,3 was decided in favour of the plaintiff by holding that court-fee of requisite value of Rs,15,000 had been affixed on the plaint. Issue No,4 was decided against the appellant by holding that the suit has been filed against the proper party and no other person was proper or necessary party in the suit.
Issue No,5 was also decided against the appellant by holding that the appellant failed to prove that the plaintiff had approached the Court with unclean hands.
13. Issues Nos. 6, 7, 8, 9 and 9-A were inter-connected, therefore, they were discussed and decided together against the appellant. The damages granted to the plaintiff by the trial Court were so follows:- The price of the Invoice (Shipment) Rs,8,53,200.00 Order cancelled and interest loss. Rs,60,000.00 Mental torture and money spent on other expenses. Rs,1,10,000.00 Total Rs,10,23,200.00
14. Issues Nos.9-B and 9-C were discussed and decided together. They were decided against the appellant. In the result the suit was partly decreed to the tune of Rs,10,23,200.
15. The defendant has challenged the said judgment, and decree in this appeal and has prayed for reversal of the same and dismissal of the suit. The plaintiff has filed connected R.F.A. No,71 of 1994 for passing decree for the remaining amount which has been disallowed by the trial Court.
16. The material issues in the case are issues 6, 7, 8, 9 and 9-A. The decision of both the appeals centres around the decision on these issues one way or the other. Learned counsel for the parties addressed arguments only on these issues.
17. Since the respondent/plaintiff had claimed specific amounts as damages on account of the price of the invoice, order cancelled and interest loss and mental torture and money spent on other expenses, therefore, it was bound to prove that he had in fact suffered the said losses. The respondent examined Shahid Usman as P.W.1 who is an employee of appellant firm who merely stated that the shipment of the items in question were remained unsuccessfully on account of which losses were suffered on account of cancellation of other order mental agony and the reputation of the firm was also adversely affected. No specific amount was mentioned as to how much loss in terms of money was suffered by the. Firm on account of cancellation of other orders and reputation of firm in the eye of the public and mental agony. No witness from the public dealing with the plaintiff firm as regards loss of reputation in the business was produced and examined. The statement of Shahid Usman P.W.1 was merely repetition of averments made in the plaint in the general terms and it is well-settled law that the averments in the plaint are no evidence unless they are proved through evidence. Muhammad Ali appeared as P.W.2. He has also made general statement about the cancellation of other orders and loss of reputation etc. Without specifying the amounts and particulars of other orders which were cancelled by the customer and the amount involved in the said orders and the manner in which the respondent firm suffered the losses in terms of money as it was necessary for the respondent to prove on the record that the appellant would have earned profits in specific amount from the said orders had they not been cancelled. There is sufficient evidence on record in the form of documents particularly Exh.D.W.1/P.1 produced by the respondents which shows that it was the appellant who was to ship the consignment in dispute and intimated the party concerned abroad about its shipment. There is no evidence except mere delivery of documents that the consignment was in fact shipped. The appellant/defendant intimated the respondent through letter that the documents had been returned by the foreign bank and were pending at its risk and responsibility as particulars of the consignee were not available with the bank abroad. Exh.D.19 is a letter written by partner of plaintiff-firm which reads as under:-- "We refer to your meetings and verbal discussion on the subject noted above.
' As decided to call back the goods from U.S.A. To Pakistan. You are requested to please forward the case to State Bank of Pakistan and obtain their permission in this regard."
18. Learned counsel for the respondent/plaintiff when questioned as to how the respondent could recover the value of the goods shipped and as to what is the evidence available on the record that the said goods were not disposed of by the respondent/plaintiff after its return from abroad if they were shipped at all has no answer except that the Court should examine the relevant provisions of he Negotiable Instrument Act as to a normal practice and procedure for the shipment and return of the goods. We are afraid unless the facts as alleged in the plaint are proved the question of application of law in the air does not arise.
19. The findings of the trial Court on these issues are based on conjectures and surmises and on no evidence and the suit has been decreed for the recovery of damages to the tune of Rs,10,23,200 without proof by the respondent/plaintiff that they had in fact suffered the said losses as no evidence whatsoever was produced as observed above. Merely because the goods could not reach the consignee was not sufficient proof of the damages on account of loss of business, reputation etc unless the particulars of the business lost and the loss accrued had been proved.
20. For the foregoing reasons the findings on issues 6, 7, 8, 9 and 9-A, are hereby reversed as a consequence of which this appeal is accepted and judgment and decree passed by the trial Court in favour of the respondent set aside and the suit filed by it dismissed.
21. The connected R.F.A. Filed by the plaintiff for the foregoing reason has no force which is hereby dismissed. The parties are left to bear their own costs.