1. SHABBIR AHMED, J.---We propose to dispose of the above Appeals by a single Judgment as both appeals arise out of the same Judgment and decree dated 14-5-1999 passed by a learned Judge in Chamber in Suit No.326 of 1997 filed by Moin's (Private (Ltd.) (hereinafter referresd to as the Supplier) against Pakistan Television Corporation(hereinafter referred to as the Corporation) and Ministry of Information and Broadcasting.
2. The above suit was decreed in favour of the Supplier in the following terms:-- - PARTICULARS PAL DO PAL AAWAZAIN (A)Balance payable Rs.2000.00 Rs.2,10,787.67 (B)Refund of 50% of transmission costs.Rs.6,30,000 Rs.6,75,000.00 (D)Damages at the rate of 10 % on the amount shown at Item No. B.
3. (E)Mark-up at the rate of 14 % per annum from the date of the suit till payment.
3. The Supplier has filed appeal as its suit was decreed partly whereas the Corporation has filed appeal against the decree in terms of para. 2 above.
4. The facts briefly are that the Supplier and the Corporation entered into two Agreements dated 1- 10-1995 whereby the supplier provided two Drama Serial PAL DO PAL AND AAWAZAIN to be aired by the Corporation. Under Condition No.2 the, cost of transmission time of Rs.90,000 per epidsode was to be deducted from the proceeds initially by the Corporation and balance proceeds was to be divided equally between the Corporation and the Supplier. It was also agreed that the payment would be made within 30 days from the first run of the episode date It was case of the supplier that in terms of the Agreement, the cassettes of the episode of both Drama Serials were supplied to the Corporation but the Corporation failed to make payment. Thus the suit was filed with the following reliefs:--- A. For a Declaration that under the Agreements P-1 and P-2, the Defendant No. 1 is liable to pay to the Plaintiff an amount of Rs.4,69,88,530 on account of outstanding dues/share of the Plaintiff in respect of the drama serial and an amount of Rs.2,00,00,000 as damages for the unnecessary blockade of the huge outstanding amount of the plaintiff; B. For specific performance of the mutually and specifically agreed terms and conditions of Agreements P-1 and P-2, whereby the Defendant No. 1 had agreed/promised to pay the Plaintiff's share within a period of thirty (30) days from the date of the first run of each episode of the drama serials PAL DO PAL and AAWAZAIN.
4. C. For a Decree against both the defendants, jointly and severally, in the sum of Rs.4,69,88,530 on account of outstanding dues/share of the plaintiff in respect of the drama serials PAL DO PAL and AAWAZAIN and in the sum of Rs.2,00,00,000 on account of damages suffered/sustained by the plaintiff, with mark-up thereon at the rate of 18 % per annum up to the time of realization of the entire decretal amount.
5. D. For a Direction to both the defendants jointly and severally to deposit with the Nazir of this Hon'ble Court a sum of Rs.4,69,88,530 being the total amount payable to the plaintiff.
5. The learned Single Judge decreed the suit in terms of clauses (A) and (B) whereas in respect of the claim of damages for both drama serials in the sum of Rs.20 million, the learned Judge in Chamber was of the view that no evidence was produced in support of the claim for damages.
6. However, 10% as damages was granted on the amount shown in clause (B) of the Commissioner's Report with 14% mark-up from the date of the suit till realization.
7. The Supplier and the Corporation have filed appeals as stated above.
8. We have heard learned counsel for the parties at length.
9. Mr. Kamaluddin, Advocate for the Corporation has raised two-fold contentions. Firstly, the refund of 50 % cost of transmission charges is against the agreement, as such the learned Judge has erred in granting the amount of item No.(B). Secondly, that the supplier failed to adduce evidence in respect of claim of damages and the grant of 10% as damages on amount at item (B) was unwarranted as the same has not been proved.
10. Reverting to the contention of the learned counsel for the Corporation that the grant of 50% of transmission charges is against the agreement, the Corporation has submitted accounts before the Account Commissioner, which has been mentioned in his report dated 1-3-1999. The statement indicating the income, transmission cost as well as the amount paid to the supplier have been shown therein. The amounts are not disputed, except the mode of calculation for the purposes of payment to the supplier. In the statement, the transmission cost has been deducted from the share of the supplier. The statement reads as under:-- "STATEMENT INDICATING TOTAL NET INCOME SHAREABLE IN RESPECT OF DRAMA SERIAL PAL DO PAL AND AAWAZAIN AND AMOUNT PAID PARTICULARS PAL DO PAL AAWAZAIN (A)TOTAL NET INCOME Rs.30,237,060.00Rs.37,263,642.64 (B)50% SHARE Rs.15,118,530.00 Rs.18,631,821.32 (C)LESS TRANSMISSION COSTS. Rs.1,260,000.00 Rs.1,350,000.00 (D)NET SHARE PAYABLE Rs.13,858,530.00 Rs.17,281,821.32 (E)LESS TOTAL AMOUNT PAID Rs.13,858,529.66 Rs.17,071,033.65 (F)BALANCE PAYABLE Rs.00.34 Rs.210,787.67 NOTE
1. Transmission cost stands Rs.90 per episode (14-episodes for PAL DO PAL and 15 episodes for AAWAZAIN.
2. Separate documents attached for datails of payment made to M/s Moins (Pvt.) Ltd. Amounting to Rs.13,858,529,66 and Rs.17,071,033.65 respectively as per Serial No. E above."
11. We have examined the statement. The mode of calculation in the statement is not in terms of the Agreement, which are admitted documents. In term of the Agreement, after deducting the transmission cost, the income was to be shared between the Supplier and the Corporation in equal; The terms of the Agreement can be reproduced which reads as follows:-- "That the cost of transmission time of Rs.90,000 (Rupees Ninety thousand only) per episode will be deducted from the produced initially by the Cooperation and balance proceeds will be divided equally between Corporation and Supplier."
12. We have calculated the income, transmission cost and the amount payable, the amount paid and balance amount payable to the supplier in respect of both episodes PAL DO PAL and AAWAZAIN. PARTICULARS PAL DO PAL AAWAZAIN 1.Total income 3,02,37,060.00 3,07,263,642.64 2.Less transmission cost1,260.000.00 1,350,000.00 3.Net income 2,89,77,000 3,59,13,642.46 4.50% share of Supplier1,44,88,530 1,79,56,821.00 5.Amount already paid.1,38,001,00 1,70,71,033.00 6.Balance payable Total6,30,001.00 15,15,788.008,85,788,00 On the basis of the above calculation in terms of the Agreement, of the supplier is entitled to Rs.15,15,788 as outstanding amount. Though the Account Commissioner .Has calculated balance unpaid amount (Rs.15,15,788) details are as under--for PAL DO PAL Rs.2,000 and for AAWAZAIN Rs.2,10,787.67 and refund of 50% transmission cost as well, which has been withheld by the Corporation, which are according to the Nazir's report Rs.6,30,000 and Rs.6,75,000 (15,15,788).
13. Conversely the learned counsel for the Supplier contended that the averments of the plaint and affidavit filed remain unrebutted and the Court was required to pronounce judgment in terms of Order VII, Rule 8, C.P.C. He further contended that the learned Judge has erred in declining the entire amount claimed as damages.
14. It may be mentioned that the Supplier has claimed a sum of "Rs.20 million due to late payment as Corporation was required to clear all the payment io the Supplier within one month of the last episode, which concluded in respect of both serials in the year 1996. He referred the case of Hakmat Bibi v. Imamuddin (PLD 1987 SC 22) wherein it was held that in absence of the written statement, the Court has discretion to announce judgment and the discretion should be exercised judicially and should be valid and legal judgment, even though the same has been passed without recording evidence.
15. There is no cavil about the proposition enunciated in the above case. The judgment should be valid and legal. In the present case the judgment has been announced, the learned Judge observed that no evidence has been led by the Supplier to prove the damages.
16. Learned counsel for the Supplier has contended that damages could have been granted on account of devaluation of Pak rupee and the superior Courts have granted such reliefs. He referred two judgments rendered by learned Single Judge of this Court in the cases of (i) Ijaz Haroon v.
17. Inam Durani (PLD 1989 Karachi 304) and (ii) Allied Bank of Pakistan v. M/s. Faisal Glass Industries (PLD 1992 Kar. 94). Mr. Justice Wajihuddin Ahmed (as he then was), who was author of both judgments, has observed as follows: "In inflationary times and locations the real monetary equivalent of the original debt or obligation has, in terms of count, to be more while the converse would apply to times and places subject to economic recession. In either situation, in all fairness, an equalizer or constant value has to be found and determined. Such constant value, in the context of a proper inquiry by appointment of a Commissioner but, in the context of specific periods and places can be determined, speaking strictly, on the basis of a proper inquiry by appointment of a Commissioner but, in practice, that method, in a number of cases, has borne little fruit and, therefore, at least for the present, a handy device and already reckoned has to be found.
18. He also referred the observations in the case of Muhammad Rafiq Muhammad Bashir (Pvt.) Limited v. Sharif Cotton Ginners and others (Suit No. 1280 of 1989) which is as follows:-- 'In view of the ratio in the case of Aijaz Haroon v. Inam Durrani PLD 1989 Karachi 304 1 can decree the suit for the principal sum of Rs.6,33,385.49 only, but on the basis of the constant value of the Rupee, as on 22-3-1989. Since, according to the acknowledged official position, the inflation rate in the country is, approximately, running in two digits, such constant value of the Rupee should be, roughly, assessable at the rate of 10% from 22-3-1989 up to the date of realization and necessary calculations, without any rest for the purposes of the recovery would be made accordingly'. "
19. It was further observed as under-- No doubt, the depreciation in value of Pak Rupee was noticed and was granted. In the present case no evidence was produced from the concerned quarters to prove devaluation of Rupee.
20. An attempt was made by the Supplier through C.M.A. 6490 of 1998 to place on record the news item of daily DAWN, dated June 28, 1998, to the effect that Rupee devalued by 4.4 pc. This application was not disposed of. Even otherwise, news item appeared in daily DAWN cannot be treated as evidence in absence of proof of source of information from the relevant quarters viz. State Bank of Pakistan or Stock Exchange.
21. We are of the view that the learned Judge was not justified in granting damages at 10 % in absence of any evidence. We are of the view that in order to claim damages, the party has to prove the factum as well as 8 quantum of damages, which has not been done. Consequently, the appeal of the Corporation is allowed to the extent of grant of damages whereas the appeal filed by the Supplier for damages is dismissed, The decree is modified and the Supplier is entitled for a sum of Rs.15,15,788 with 14 % mark-up from the date of the suit till realization.
22. With the above observations, both the appeals stand disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.