' MAULVI ANWARUL HAQ, J.---On 25-7-1987 the appellant filed a suit for recovery of Rs, 10,19,65,500.
Initially the suit was filed against present respondent and WAPDA. However, name of latter defendant was deleted vide order, dated 1-3-1988. In the plaint it was stated that the respondent appointed the appellant as an agent for import of 100-125 MW Thermal Power Plant for Pakistan Steel vide letter, dated 2-6-1982 to be exported by the respondent from China. The appellant consequently procured a requisition for the said Power Plant from the said Pakistan Steel and approached respondent at Beijing. Respondent made a quotation and agreed to pay the appellant a commission equal to 3% F.O.B. Contract Price. 50% of this commission was to be paid on the presentation of shipping documents and balance on consignee's report. This offer was valid up to 31-10-1983 and was subject to extension and was consequently extended up to 31-12-1983.
According to the plaint memorandum of understanding was signed at Islamabad on 4-1-1984 by a visiting Chinese Delegation to Pakistan and further MOU was signed at Beijing on 25-2-1984 on the occasion of visit of Pakistani Delegation to China. It is then abruptly stated that respondents backed out of their offer. The plaint then narrates that appellant was within his right to recover his commission by filing a suit notwithstanding the fact that the respondent had not gone ahead in the matter, however, appellant was called upon not to file a suit on promise that in future it will be appointed an agent for other projects including the project of supply of Tractors. The appellant agreed and the respondent did give the agencies as mentioned by the appellant in para.11 of the plaint; that vide letter, dated 19-10-1985 the appellant was informed that a delegation from Head Office of respondent was in Pakistan to discuss the matter of Jamshoro Project with Government of Pakistan/WAPDA and the appellant was requested to contact Mr. Liu Chuandao from the Head Office of respondent. The Managing Director of the appellant met the said official who agreed for agency arrangement for Jamshoro Power Plant. However, since the details were as yet unsettled i,e, (the size and number of the Units) the formal agency agreement could not be drawn up.
However, Managing Director of the appellant was advised by Mr. Liu to remain in touch with Mr. Shen Li who was resident representative of the respondent at Karachi. Thereafter there is mention of the appellant persuing the matter of standardization for the respondent 50 H.P. Tractor. This allegation has been made with reference to Ministry of Food and Agricultural, Government of Pakistan letter dated 11-8-1986. The appellant then picks up and states that pursuant to the letter, dated 19-10-1995 the matter of Jamshoro Power Plant was discussed with said Mr, Shen Li at Karachi, who had been assuring the appellant that formal agency agreement shall be drawn up.
The plaint then narrates that the Managing Director of the appellant contacted the said Shen Li at Karachi in September, 1986 when he was given go ahead signal with the said project and commission promised was not to be less than 2% and not more than 3% and that the agency agreement will be sent to the appellant directly by the Head Office of respondent at Beijing. Acting upon the said assurance the Managing Director of the appellant started working in the matter earnestly so as to procure the contract for Jamshoro Units 2, 3 and 4 for respondent. On 17-9-1986 the Managing Director of the appellant wrote a letter to the respondent intimating its Head Office that the appellant has formally assumed the agency arrangement subject to payment of commission @ 2/3% and unless the respondent has to intimate anything to the contrary by 30-9- 1986 it will be assumed that the agreement is in place. The said message was repeated vide letter, dated 20-9-1986. However, respondent did not respond with anything to the contrary; that the appellant then kept on following up the matter and to send progress reports to the respondent. The appellant accordingly informed the respondent that out of three Units Government of Pakistan (G.O.P.) has decided to pay price of one of said 3 Units in cash; that the respondent was advised by the appellant that it should send its delegation only when the cash has been arranged and for that purpose appellant shall make efforts. Similarly several communications were addressed by the appellant to the respondent including change of the Project to Units Nos. 2, 3, and 4 (210 MW Thermal Power Plant) from Units 1, 2 and 3 and the approval of P.C.I. Vide Telex dated 10-1-1987 alongwith some important documents were sent to the respondent with intimation that instead of 2% to 3%, commission would be 3%; that the respondent was then informed that K.C.C. Of the Cabinet will have to approve the said project in view of the magnitude of the Foreign Exchange Company; that the respondent was also informed of the visit of Pakistani Delegation to China. The plaint then states that the appellant managed to get the price, of the Units which was to be paid in cash enhanced from US Dollars 51 Million to U.S. Dollars 65 Million and the respondent was informed accordingly vide letter, dated 28-1-1987 with a demand that commission be raised to 3% for the said deed of the appellant; that the appellant was also informed vide Telex dated 3-2-1987 and also equipped with necessary Data for the forthcoming negotiation with the Pakistani Delegation vide letter dated 5-2-1987; that the appellant also informed the respondent of the fact of signing agreement between the two Governments vide Telex, dated 21-2-1987; that the appellant then arranged the finance of U.S. Dollar 65 Million of the payment to the respondent in cash for Unit 2 vide Deutache Bank letter, dated 15-3-1987; that the appellant also managed inclusion of clause in the agreement, dated 20-2-1987 for 10% down payment to the respondent reference has been made to letter, dated 6-5-1987 of the Ministry of Finance. At this juncture, according to the plaint, the appellant learnt that the respondent has expressed in letter, dated 12-5-1987 addressed to WAPDA that it has no agents for the said Project. The appellant vide letter dated 12-5-1987 asked the respondent to confirm the agency agreement but in reply the respondent disowned the agency arrangement; that the respondent has reiterated the said position vide letter, dated 31-5- 1987 addressed to G.M., WAPDA. With these averments the decree for recovery of the said commission has been sought.
2. The respondent contested the suit by filing written statement on 23-11-1987. It was objected that the suit has been filed without proper authority; that the suit is not maintainable and is sans cause of action; immunity from the jurisdiction of Court. In Pakistan was also claimed. It was specifically averred that there is no privity of contract between , the appellant and respondent; that the appellant had been blacklisted by the WAPDA and as such there is no question of the respondent dealing with the appellant in the matter; that the Project was handled directly with GOP and WAPDA by the respondent; that the appellant was never appointed an agent for the said Project; that letter, dated 19-10-1985 was not written by the respondent but by the CMEC Shanghai Branch which is an independent legal person. On merits, regarding the matter of sale of the Power Plant to Pakistan Steel it was admitted that the appellant was appointed as an agent in the matter but it was asserted that his performance was not satisfactory. It was denied that the respondent backed out from its commitment under MOU and it was stated that offer was terminated because of several reasons and change of scope of the said Project and also despite the fact that respondent had twice extended offer; the business was not forthcoming. It was then stated that the agency was terminated vide letter, dated 2-7-1984 as reproduced in reply to para.10 of the plaint.
According to the respondent this brought to an end the only contractual relationship between the parties. Regarding Memorandum dated 30-5-1985 it has been stated that it is not as agency agreement or even a promise to appoint. According to the respondent this was at best a request for quotation and it has been reiterated that this memo. Was issued by a separate legal entity at Shangai. It has further been stated that none of the equipment mentioned in the said memo.
Relates to the Jamshoro Project. Regarding letter, dated 19-10-1985 it has been explained that this was also from CMEC Shangai advising the appellant that the said organization only handles 50, 125 and 300 MW power station and the appellant was advised to contact respondent directly. It has been further stated that by the time said letter was written to the appellant the Chinese Delegation which included some representatives of respondent had already returned to China and as such there was no occasion for the appellant to have met Mr. Liu Chuandao or any other member of delegation in Pakistan after receipt of letter dated 19-10-1985. It is further stated that CMEC Shangai was not aware that respondent had already terminated the agency of the appellant qua Pakistan Steel in July, 1984; that the respondent has received a letter, dated 9-2-1984 from the WAPDA advising the respondent that appellant has been blacklisted and that the respondent was advised that Project of the nature of Jamshoro WAPDA does not allow commission for local agent; that by the said time the respondent was already discussing the Jamshoro Project directly with WAPDA and GOP had expressed interest to welcome Chinese participation in the Project; that the respondent was also in touch with WAPDA as early as in the year 1983 and negotiations were on with WAPDA. It has been denied that Mr. Liu agreed to appoint the appellant as an agent or was asked to meet Mr. Shen Li in the matter; that WAPDA had informed the respondent on 11-8-1986 that GOP has decided to purchase the said 3 Units from the respondent. As to the several letters addressed by the appellant to the respondent, as detailed in the plaint, it has been sated that these were absolutely unsolicited and the respondent never agreed to appoint the appellant as its agent. It has been denied that the price of power plant was increased because of the efforts of the appellant. According to the respondent the price was fixed as early as on 19-11-1985 on Government to Government level and that this price did not provide for any commission for any agent. It has been denied that the appellant had any role to play in connection with agreement signed on 20-2-1987. It has also been denied that the appellant was even authorized by the respondent to contact Deutsche Bank. It has also been denied that the appellant had anything to do in the matter of inclusion of clause regarding 10% down payment. Reference has been made to the detail of contract between WAPDA and respondent initialed on 17-4-1987 at Beijing which did include a clause for 10% down payment and exemption from the taxes in Pakistan. This contract was formally signed at Lahore on 21-5-1987. The issuance of letter, dated 12-5-1987 to WAPDA by the respondent has been admitted while letter dated 19-5-1987, addressed to the appellant, has been reproduced in reply to para.29 of the plaint.
3. The learned trial Court framed the following issues:--
(1) Whether the suit has been instituted by duly authorized person? OPP.
(2) Whether the suit is not maintainable? OPD
(3) Whether the present suit is not maintainable in view of preliminary objections Nos.4 and 5? OPD
(4) Whether there exists any privity of contract between the parties as an agent and principal? OPP
(5) Whether the plaintiff acted as an agent of defendant to secure the contract in question? OPP
(6) If Issues Nos.4 and 5 are proved in affirmatives, whether the plaintiff is entitled to commission from the defendant? If so, to what extent ? OPP
(7) Relief.
' Evidence of the parties was recorded. Issues Nos.1, 2 and 3 were answered against the respondent while Issues Nos.4, 5 and consequently Issue No,6 were answered against the appellant. The learned trial Court dismissed the suit vide judgment and decree dated 31-7-1989.
4. The present R.F.A. Was heard by a learned Division Bench of this Court and vide judgment and decree dated 8-6-1998 the R.F.A. Was dismissed. The appellant filed R.A. No,10 of 1998 which was heard in terms of Order 47, rule 5 C.P.C. By Mr. Justice Malik Muhammad Qayyum who allowed the same and while reviewing the said judgment and decree dated 8-6-1998 set aside the same vide order dated 7-12-1999 and re-hearing was directed.
5. Mr. Ali Zafar, learned counsel for the appellant has contended that under the law agency need not to be expressed in writing but can also be implied and that there can be agency by estoppel.
According to the learned counsel it has been established on record that respondent had been put on notice by the appellant that he is acting for them in the matter of said Jamshoro Units 2, 3 and 4 as an agent with reference to earlier negotiation on the subject and that he will be claiming the commission at rate stated. Mr. Ali Zafar, Advocate, contends that silence on the part of respondent inasmuch as the appellant was not intimated any contrary intention, constitutes acquiescence to the appellant acting as such. Refers to sections 182, 186, 187, 196, 197, 217, 219 of the Contract Act, 1872 in support of said arguments and relies upon the cases of Ahmad Din.v. Muhammad Saleem and others (1989 MLD 3264), U Lat and others v. U Pon Caung (AIR 1938 Rangoon 145), Abbasin Ltd. v.
Metalexport and 4 others (1988 MLD 440), Khub Chand and others v. Chillar Mall (AIR 1931 Allahabad 372), Shah Muhammad Khan v. Ahmad Ali Khan (AIR 1935 Oudh.170), Union of India v. Asharfi Devi and others AIR 1957 Madhya Pradesh 114 (V 44, C32 Sept), Raja Sir Bissessardas v. Kabulchand (AIR
(32) 1945 Nagpur 1.21), Haji Qabool Muhammad Shah. v. Pir Sarfraz Ahmad (PLD 1974 Karachi 334), The Commerce Bank Ltd. v. Habibi Bakhsh and another (PLD 1978 Quetta 45) and The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda and others (AIR 1977 Karnataka 204). In the light of the said judgments relied upon by him learned counsel referes to MOU dated 30-5-1985 Exh. P.13, letter dated 19-8-1985 Exh. P.40, letter dated 19-10-1987 Exh. P.22, letter dated 17-9-1986 Exh. P.23, letter dated 20-6-1986 Exh.P.23/A, letter dated 26-10-1986 Exh.P.24, letter dated 8-11-1986 Exh.P.25, letter dated 11-11-1986 Exh. P.26, letter dated 22-12-1986 Exh. P.27, letter dated 10-1-1987 Exh. P30, Exh. P.31, letter dated 28-1-1987 Exh.P.32, letter dated 28-2-1987 Exh. P.1 and letter dated 3-2-1987 Exh. P.33.
Particularly refers to letters dated 12-2-1987 and 14-2-1987 Exh. P35 and Exh. P.36, letter dated 21-2- 1987 Exh. P.5, documents pertaining to the arrangement of Finance with Deutsche Bank Exh. P.3, Exhs. P.3/2, P.3/1, P.3/3, P.2 and P.2/1, agreement dated 20-2-1987, letter dated 6-5-1987 Exh. P.4 providing for 10% down payment and letter dated 17-5-1987 Exh.P.38 of the respondent informing WAPDA that there are no agents. According to the learned counsel this evidence has not been properly read by the learned trial Court while dismissing the suit of the appellant, when creation of agency relationship between the parties stood established on record alongwith its terms.
6. Dr. Pervez Hassan, learned counsel for the respondent, on the other does not express any cavil to the proposition of law canvassed by the learned counsel for the appellant inasmuch as it has been urged that agency need not to be expressed and can I A be implied. Learned counsel, however, vehemently argues that in the light of evidence on record an implied agency even does not stand proved. According to the learned counsel respondent had never appointed the appellant as an agent and in fact there was no occasion for the respondent to have appointed appellant as an agent in this matter inasmuch as project was dealt with on Government to Government basis.
Further contends that the appellant had been blacklisted by the WAPDA and as such there was no cause for respondent to have given appellant any agency. Further contends that none of the acts allegedly performed by the appellant in furtherance of said relationship was of any relevance to the contract in question or its coming into existence. Regarding MOU dated 30-5-1987 Exh. P.13 reiterates the position taken in the written statement that the respondent was not party to it and in fact it was another entity which issued the said letter. Further states that said document does not at all give the impression that the respondent has at any time agreed to appoint the appellant as an agent. Refers to Exh.D.3 dated 11-8-1986 to assert that a decision had already been taken by GOP to purchase the Units from China when the appellant established contact in the matter with the respondent vide letter dated 17-9-1986 Exh. P.23. In the matter of increase of price refers to Exh.P.44 according to which the average price had already been settled at U.S Dollars 65 Million for each Unit. In the matter of down payment clause also asserts that it was responsibility of WAPDA and that the agreement had already been initialled with the said clause when the appellant allegedly informed the respondent of the same. As to the progress reports it has been stated that the same were not of any special importance. He relies upon the cases of Vishinji Goverdhan Dass & Co. v. Jasraj Girdharilal (AIR 1918 Sindh 1), M. Shahid Nawaz v. Fazal Ellahi Shaikh and another (PLD 1986 Karachi 67), S.M. Bholat v. Yokohama Specie Bank Ltd. (28) AIR 1941 Rangoon 270), Alfred William Domingo.v. L.G.De'Souza (AIR 1928 Allahabad 481), Gaddar Mal.v. Tata Industrial Bank Ltd.
(AIR 1927 Allahabad 407), Bhagwandas Goverdhandas Kedia v. M/ s. Girdharlal Parshottamdas & Co and others (AIR 1966 SC 543 (V53 C107), Mohanlal Jain.v. His Highness Maharaja Shri Sawai Man Singhji Ex.Ruler of Jaipur and others (AIR 1962 SC 73), and Pakistan Steel Products.v. M/s. Indus Steel Pipes Limited (1996 CLC 118) to urge that mere non-reply to the letter of nature of Exh.P.23 and P.23/A would not constitute any agency by estoppel. Further relief on the case of Moosa Bhoy v.
Kristiah (AIR (39) 1952 Hyderabad 79) to urge that estoppel would arise only if there is proof on record that it was respondent who gave an impression to 3rd party that the appellant is transacting with them on his behalf and thus had made them so believes. According to the learned counsel what to speak of any such alleged conduct of the respondent, it is on record with its categorical denial that the appellant had not been its agent.
7. We have gone through the records, with the assistance of the learned counsel for the parties. We have already referred to the pleadings of the parties in some details. As would be evident from the contents of the plaint as also contentions of the learned counsel for the appellant, noted above, the appellant is not relying upon an express agency i,e, he is not relying upon a written of oral contract of agency. On the other hand mainstay of the case is implied agency and according to the appellant the agency is to be implied with reference to some previous relationship and its alleged continuance with reference to Jamshoro Project in question. However, we find that in the course of evidence the Managing Director of the appellant while appearing as P.W.7 proceeded to state that Mr. Shen Li met him after the failure of the award of Pakistan Steel Project and told him that respondent wants to give him agency for Thermal Jamshoro Power Plant 1 and 2 (300 MW) and 50 Horse Power Tractor; that Shen Li had already talked with Shanghai Branch of the respondent and told him to come to China, whereupon he went to Shanghai in May, 1985 where he talked to the Head of Power Plant and Tractor Plant of respondent and visited the factory when respondent agreed to give agency for 125 and 300 MW Thermal Power Plant and an agreement was entered into and copy whereof is Exh.P13. We have examined this document. It refers to a discussion that took place on 30-5-1985 between Mr. Abdul Qayyum Arif, Managing Director of the appellant on the one hand and Mr. Len Hong Quan, Dept. Manager Marketing and Service Div.
Shanghai United Electric Corporation it is stated that Mr. Fuo Xing, Deputy Manager of Bank of China, Shanghai Branch and Mr. Tang lsu Zao, Assistant Manager and Assistant Chief Engineer of China National Machinery and Import and Export Corporation, were also present; that Mr. Arif asked for quotation of equipment's and plants mentioned in Exh.P.13 on suppliers credit. This is then followed by the following: "Mr. Arif also requested to be the agent for the sale of the above equipment/ plants in Pakistan. Mr. Arif represents that (1) Period of Credit will be twelve(12) years including two (2) years grace period
(2) an interest rate 8%- 9% will be acceptable, over which may be considered but with some difficulty; (3) down payment cannot be over 15%.
' Mr. Tang of CMEC, Shangai Branch expressed deep interest in the abovesaid business and promised to make every efforts to provide quotation requested with the above said credit terms.
Both sides expressed their sincere wishes for the success of the Project."
' A bare reading of the said document would show that M. D. Of the appellant asked for quotation of the equipments and plants mentioned therein. He also made representation as to the terms of the credit and further made a request for being appointed as an agent for the sale of the said equipment in Pakistan. The document further says that Mr. Tang of CMEC Shanghai Branch expressed deep interest in the said business and promised to make efforts to provide quotation requested with the said credit terms. To our mind this document, at least, by itself does not at all disclose that respondent expressed any intention or made any promise to appoint the appellant as an agent in the matter.
8. Be that as it may, coming to the said contentions of the learned counsel for the appellant. It is being sought to be argued that after having meeting with Mr. Liu at Rawalpindi and then Mr. Shen Li at Karachi, who had made a commitment that the appellant shall be appointed as an agent for Jamshoro Thermal Power Plant, the appellant addressed letter dated 17-9-1986 Exh. P.23 repeated on 20-9-1986 vide Exh.P.23-A. In these letters appellant informed the respondent that the matters are in hand of Mr. A.G. Qazi, Deputy Chairman, Planning Commission and Economic Advisor to the Prime Minister and that Mr. A.G. Qazi is old friend of M. D.
Of the appellant who has informed him that Units 2, 3 and 4 can be given to China. Out of these two Units are sought to be purchased on credit and one on cash and that the appellant has formally assumed the agency arrangement with commission of 2% to 3% unless the respondent informs to the contrary by 30-9-1986. To somewhat similar facts are the contents of letter dated 20-3-1996 Exh. P.23-A. Further case of the appellant is that since the letters were not replied it proceeded with its efforts in the matter of procurement of contract for the respondent.
9. Out of said two persons referred to in the plaint as also in statement of M.D. As P.W.7 i,e, Mr. Liu and Mr. Shen Li none was produced by the appellant. However, Mr. Shen Li was produced as D.W.1.
He has explained that he was Liaison Officer of the respondent in Pakistan from July, 1982 to November, 1986; that the Jamshoro Thermal Units Agreement was on Government to Government basis and that this matter was discussed during visit of Prime Minister Mr. Muhammad Khan Junejo to China in November, 1985 and that agreement was signed by Dr. Mehboob-ul-Haq on behalf of Pakistan and the Vice-Minister of Machinery Building and Industry on behalf of China; that he (witness) directly contacted WAPDA in the matter of Jamshoro Thermal Units; that he purchased the tender documents in September, 1985 and sent the same to the Head Office; that he met the several Officers of WAPDA who informed him that GOP has decided to purchase 3 Units of 200 MW each from China and that he informed his Head Office; that there was no need to hire an agent.
The witness then states that he knows Mr. Abdul Qayyum Arif, M.D. Of the appellant; that the matter of Jamshoro Project also came up and that he informed the M.D. That this matter will be decided only by the Head Office of the company and that he (witness) is not authorized to decide the matter. The witness then states that he knew that the appellant company had been blacklisted by the WAPDA and that WAPDA had informed Chinese commercial consultant of the said fact at meeting in Karachi in the presence of the witnesses. The witness was cross-examined. It was suggested to the witness and he admitted that the appellant had met him in Karachi. However, he states that conversation was mostly general but the appellant did bring up the matter of Jamshoro Project on few occasions. The witness then states that price for Jamshoro Units 2, 3 and 4 was decided in November, 1985 by the two governments and that price was 65 Million U.S. Dollars each; that GOP decided to purchase said two units from respondent on 9-8-1986. The witness denied the suggestion that the provision of down payment clause was obtained by the appellant. It was then suggested to the witness and he expressed ignorance that the appellant competed with respondent in respect of supply of 132 MW Steel Tower to WAPDA and that the contract was awarded to the respondent.
10. It will be seen that it has not been at all suggested to the D.W.1 that he gave any sort of undertaking to the appellant that he would be appointed as an agent and that an agency agreement will be signed or even he agreed in principle for award of agency to the appellant for the said project.
11. The crux of the law cited by both the sides is that mere silence does not create contract, however, such a silence when coupled with conduct or availing of benefits or other circumstances can create a valid contract. Thus the mere non-reply or silence on the part of the respondent in response to letter Exh. P.23 and Exh. P.23A would not constitute a contract and agency. What has to be seen is as to whether because of the conduct as being expressed by the appellant the respondent has availed some benefits in the matter of procurement of contract for the said Thermal Power Plant Project. As stated by us above the case of the appellant is that it was because of his efforts that the agreement was finally entered into between the respondent and GOP for the sale of said Units Nos.2, 3 and 4 and that several terms favourable to the respondent were introduced because of the efforts of the appellant. On the other hand the case of the respondent is that the matter was dealt with on Government to Government basis. Now Exh.P.44 is a document produced by the appellant himself. This is record of minutes of the meeting between the Vice- Minister of the Ministry of Machinery, Building and Industry of China and the then Finance Minister of Pakistan held on 19-11-1985. This document does give an impression that the entire Jamshoro Power Plant was to be considered as package; that China agreed to participate in the tenders for Jamshoro Unit No,1; that Units Nos. 2 and 3 were agreed to be awarded to China on negotiation basis during 1986 and price of each unit was settled at U.S. Dollar 65 Million each with most favourable terms applicable to Chinese credit. To our mind this document does support the contention of the respondent that the matters were dealt with at Government level by the State functionaries and terms were agreed on 19-11-1985. Mr. Ali Zafar, Advocate, has tried to argue that these minutes only related to Jamshoro Unit No,1 and with reference to evidence on record argues that attempt to get this Unit failed. We have given some thought to this contention but nothing turns on the same. We have already referred to Exh. P.44 in detail. Unit No,1 was agreed to be given by inviting tenders and China agreed to participate in the same. There does not appear to be any understanding that Unit No,1 will in any case be given to China. However, regarding Units Nos. 2 and 3 the matter certainly appears to have been stood finalized inasmuch as price was settled and promise was made to give most favourable terms applicable to Chinese credit.
12. As to the contention of the learned counsel that the appellant procured information as to the particulars of the delegation or proposed date of visit from the Secretary, Economic Affairs Division, Government of Pakistan (Exh.P.1). To our mind it hardly merits any consideration for the simple reason that this was not matter which could have been kept confidential or for that matter it was by itself a confidential matter.
13. So far as the matter of inclusion of down payment clause is concerned, learned counsel has drawn our attention to Exh.D.13 which is formal agreement executed on 21-5-1987 which does include the said down payment clause. He has also invited attention to minutes of meeting dated 16-4-1987 with reference discussion held from 4-11-1987 to 16-4-1987 wherein the matter of down payment was settled. The precise contention is that whereas the appellant vide letter dated 9-5- 1987 (Exh.P.4) informed the respondent that GOP has agreed to pay 10% down payment, the matter had already been discussed and finalized on 16-4-1987 i,e, at least three weeks before the issuance of letter Exh. P.4 by the appellant.
14. So far as the matter of alleged arrangement of finance through Deutsche Bank is concerned, we find that the letter Exh. P.2 was issued on 9-6-1987 by the said Bank still seeking verification of some points for making final proposal when according to the appellant's own showing he had been informed on 4-5-1987 (Exh. D.10) that the respondent has written to WAPDA that they have no agent in the matter of Jamshoro Project. Similarly Exh. P.2 was issued on 21-6-1987. So far as letter dated 21-3-1987 Exh. P.3 is concerned the said Bank only provided information regarding its status and working to the Deputy Secretary External Finance, Islamabad. In any case we find that under the terms of agreement finally concluded between GOP and the respondent the price was to be paid by the GOP in the matter agreed and it was for the GOP to make arrangement for the said payment.
15. We may now here refer to the matter of blacklisting of the appellant by the WAPDA, as alleged by the respondent. We have already referred in some detail to the statement of the D.W.1 (Shen Li).
The letter Exh.P.4 of WAPDA addressed to the Chinese Commercial Counsel was produced by this witness. Apart from this, it was stated by the witness that it was in his presence that WAPDA Authorities were informed of the said fact in a meeting. Although objection was taken to the production of said letter yet we find it was not suggested to the witness that the appellant had not been blacklisted. On the other hand we find that it was suggested to the witness and he expressed ignorance that the Government of Pakistan had apologized to the appellant company for having blacklisted it. Thus the factum of blacklisting stands admitted. There is nothing on record as to whether the Government did apologies and if so at what point of time. There is no denial of the fact that letter Exh.P.4 was issued on 9-2-1984. There is thus force in the contention of the respondent that in view of the said circumstances it was neither prudent nor possible for the respondent to have had said relationship of agency with the appellant in the said matter.
16. Coming to the alleged conduct of the respondent in this matter, we have not been able to find anything on record that respondent in any manner by its conduct or deeds made any one believe that the appellant is acting as their agent in the matter. In this behalf reference be made to the statements of Nisar Hussain P.W.1 and Mr. Saleem Rashid P.W.3. Both these witnesses, one from Economic Affairs Ministry and the other from State Bank of Pakistan, have admitted in their cross- examination that the respondent never indicated that appellant is their agent in the matter of Jamshoro Project. Similarly Mr. Aziz Ahmad P.W. 4 (from the WAPDA) has stated that there is nothing on record of WAPDA to show that the appellant was agent of the respondent. We are, therefore, in agreement with the learned counsel for the respondent that there is no evidence on record to show that by conduct of any of the two parties the agency relationship came into existence.
17. As a result of above discussion, we confirm the finding of the learned trial Court on all issues. The result is that R.F.A. Stands dismissed. No order as to costs.