' TALAT QAYUM QURESHI, J.---Messrs Agricultural Development Bank of Pakistan filed Suit No,2038/1 of 1993 for recovery of Rs,10,00,333 plus liquidated damages amounting to Rs,2,70,153 in the Banking Tribunal N.-W.F.P., Abbottabad. The Presiding Officer of the Banking Tribunal N.-W.F.P., Abbottabad passed decree for recovery of Rs,10,00,333 and disallowed the liquidated damages. The petitioner, M/s. Agricultural Development Bank of Pakistan has filed appeal against judgment/decree, dated 10-10-1995 whereby liquidated damages were not granted to the appellant.
2. Mr. Fazal Gull, Advocate, the learned counsel for the appellant argued that the learned Banking Tribunal failed to appreciate that the financial assistance was availed and utilized by respondent No,1 for a limited period which expired on 7-1-1995. The respondent No,1 failed to pay outstanding amount within agreed period, therefore, he is legally bound to pay liquidated damages at the agreed rate of 20% of the amount demanded by appellant. It was further argued that respondent at the time of availing the financial assistance, executed an agreement, dated 4-2-1987 whereby in paragraph No, 19 he undertook to pay liquidated damages at the rate of 20% in case of its failure to pay the amount within time stipulated in the agreement.
3. We have heard the learned counsel for the appellant and perused the record.
4. The appellant-bank failed to show that it suffered any loss on account of nonpayment of the outstanding amount on or before the stipulated period. No evidence was led by the appellant/plaintiff to prove the damages. It was the duty of the appellant to have given the details of damages suffered by it in the plaint and then through reliable evidence to prove that actually loss was suffered by it due to non-payment of amount in time. Neither any detail in the plaint has been given nor any other document showing that the bank suffered loss has been annexed with the plaint. In case "Nasir Ahmed Sheikh v. The State Life Insurance Corporation Pakistan" 1990 MLD 1261 it was held:-- "Whether any damages can be awarded to plaintiff or what loss has been suffered by plaintiff.
Evidence produced by plaintiff fails to establish to prove loss was suffered by plaintiff or if at all there was any, what was actual loss suffered by him. Held: In absence of such proof damages cannot be awarded to plaintiff. Suit dismissed."
' Likewise in another case "Raja Fakhar Abbas and another v. Karachi Metropolitan Corporation, Autonomous Corporate Body through Administrator" 1998 CLC 1547 it was held:--- "It is pertinent to note that the plaintiffs have prayed in alternate for a decree of Rs,9,72,000 as damages and/or compensation but neither in the plaint nor in the entire evidence of P.W.1 namely Raja Fakhar Abbas it was shown as to how the plaintiffs have suffered any damages or pecuniary loss. There is no evidence on this point. As a result of the above discussion, the suit is dismissed with no order as to costs."
5. Section 74 of the Contract Act calls for proof and in this case proof was wanting before the learned Tribunal. Section 11(iv) of Banking Tribunals Ordinance envisages that liquidated damages only has a follow up measure pursuant to passing of decree if and when the decretal amount remains unsatisfied beyond a period of 30 days from the date of decree and the Tribunal on an application of decree-holder, would impose penalty in the nature of liquidated damages, the quantum being discretionary. The statute, thus, remaining specific as regards the liquidated damages both with reference to the points of time and directions, impliedly relates liquidated damages in any other context except perhaps where pursuant to an agreement proof was tendered of any loss upon non-payment, relief for which may be prayed for. As mentioned above, no such proof was tendered before the Tribunal, therefore, damages were rightly declined/disallowed by the learned Tribunal.
' In a case "Habib Bank Ltd. v. M/s. Farooq Compost Fertilizer Corporation Ltd. And 4 others" 1993 MLD 1571 it was held:-- "As to the next contention of the learned counsel that liquidated damages at 20% have been disallowed, even though expressly contracted, from the date of demand to the date of payment, all that we need to say is that liquidated damages themselves, under section 74 of the Contract Act, 1872, call for proof and proof was wanting before the learned Tribunal.
' In addition, dispensation the itself statutory under section 11(4) of the Banking Tribunals Ordinance envisages liquidated damages only as a follow up measure pursuant to passing of a decree, if any, when the decretal amount remains unsatisfied beyond a period of 30 days from the date of the decree and the Tribunal on an application of the decree-holder, imposes a penalty in the nature of liquidated damages, the quantum being discretionary. The statute thus, remaining specific as regards the liquidated damages, both with reference to the points of time and discretion, impliedly, precludes liquidated damages in any other context except subject to what follows below perhaps where, pursuant to an agreement, proof is tendered of any loss upon nonpayment, relief for which may be prayed for. But as we have said, no such proof was tendered before the Tribunal. The same aspect, additionally is also covered by the cushion period of 210 days, above- referred. Such provision, clearly, covers the period between demand and default as well as that likely to be consumed in the institution and conduct of proceedings for recovery. A claim for agreed liquidated damages, always subject to actual loss in terms of section 74 of the Contract Act, 1872, thus, could be a plausible equivalent of mark-up for the cushion period and any so-called liquidated damages, therefore, may hardly arise in the face of the cushion period aforesaid."
' Likewise in a case "United Bank Limited v. Messrs Novelty Enterprises Ltd. And others"
' PLD 1998 Karachi 199 it was held:--- "It has rightly been observed by the learned Tribunal that the appellant was not entitled to any liquidated damages, as it had failed to show that it suffered any loss on account of non-payment of purchase price by the respondent on or before the stipulated period. As held in the case reported in 1993 MLD 1571, no liquidation damages can be allowed in favor of the appellant Bank."
6. We, therefore, find no grounds to interfere into the order of learned Tribunal which is based on sound reasoning. Resultantly, the appeal in hand (2/96) is dismissed with no orders as to costs.
' Announced.