ZIA PERVEZ, J.--- By this application under Order 12, rule 6 read with Section 151, CPC plaintiff has prayed for a judgment for a sum of Rs.29,568,431/- on admission of the defendant.
2. Brief facts of the case are that the plaintiff instituted the present Suit No. 613/2001 for recovery of Rs.63,257,053.59 with interest in addition to other reliefs. The plaintiff claims the amount on account of sale proceeds for their airlines tickets by the defendant, who during the period of sale acted as the General Sales Agent (GSA) of the plaintiffs in Pakistan vide agreement dated 1.7.1995 (hereinafter referred to as GSA Agreement). The GSA Agreement was terminated on 4.8.1998. The plaintiff on the basis of the statement of sales, claims as sum of Rs.58,868,431/- as stated therein, copy of which is annexed as Annexure H to the plaint and the original produced by the learned counsel in Court today, to be an admission of liability by the defendant, and the same bears the endorsement of receipt on 25.2.2000 alongwith stamp. Copy of the same has also been supplied to the defendant. Out of this amount a sum of Rs.29.3 million has already been realized by the plaintiff by encashment of securities/Bank guarantees furnished by the defendant. The plaintiff now claims for judgment for the balance sum of Rs.29,508,431/- being the remaining outstanding amount of sale proceeds amounting to Rs.58,868,431 /-.
3. The application is supported by an affidavit of one Abdul Qadir son of Aziz Hussain, Area Manager of the plaintiff, who in paragraph 3 of the same has stated as under:- "That of the Rs.63,257,053.59 claimed by the plaintiff against the defendant on account of ticket and cargo sale proceeds (including interest/mark-up and devaluation loss), the defendant as per its on statement dated 25.2.2000 has admitted that final balance due to the plaintiff is Rs.58,868,431/-. That even after adjustment of Rs.29,300,000/- recovered by way of encashment of bank guarantees provided by ANZ Grindlays Bank on 29.9.2000, the admitted amount stands at Rs.29,568,431/-."
"I have gone through the contents of the application filed by the plaintiff and affidavit in support thereof and have to state that the plaintiff's claim is incorrect and denied. The defendant company has made investment and incurred expenses for the promotion of plaintiff's business which are yet to be finalized as the plaintiff has failed to settle the same. The defendant company therefore filed a suit bearing No. 1104 of 1998 for the recovery of Rs.156 million, which is still pending adjudication before this Honourable Court. I say that the application filed by the plaintiff is not maintainable as nowhere in the written statement, the defendant company has made any admission regarding the payment of any amount to plaintiff."
Heard learned counsel for the parties and perused the record.
4. Mr. Zahid H. Ebrahim, Advocate for the plaintiff has argued that the statement is based on the details of sales furnished by the defendant during the period of GSA agreement. Learned counsel has also referred to the paragraphs 5, 6 and 7 of the plaint and the evasive denial by the defendant to the contents thereof in the written statement. Learned counsel has argued that under the provisions of Order XII, Rule 6, CPC, an admission may be made in the pleadings "or otherwise".
His contention is that the admission is unconditional and unqualified and there is no ambiguity, as such all the three conditions laid down to constitute an admission are satisfied. He contended that the plaintiff prepared the statement on the basis of the sale figures as provided by the defendant.
Learned counsel also stated that an earlier suit bearing No. 1 12/1 999 was withdrawn with permission to institute fresh suit as the requisite permission from the Government of Pakistan was not available at that time. The present suit is instituted after obtaining the requisite permissions.
Learned counsel has placed on record the copy of certificate dated 22.12.2000 and permission dated 12.1.1998 and the renewal of permission of the Government of Pakistan dated 16.11.2000. In support of his contentions reliance is placed on the cases State Life Insurance Corporation of Pakistan v. Wali Muhammad Akbarji and others (1985 CLC 2870), Shaikh Mahmood Ahmed v.
Ghaith Pharaon (1987 CLC 2131), Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan (1993 SCM R 1137), Mr. Haseena v. Mrs. Shafqat Malik (2001 CLC 1224), Mercantile Fire and General Insurance Co. Of Pakistan Ltd. v. Messrs Imam and Imam Ltd. (1989 CLC 2117) and H. Gharibullah v. Mst. Mumtaz Begum and others (1990 CLC 1609).
5. Mr. S. Abid Sheerazi, Advocate appearing for the defendant, has denied any admission on the part of the defendant either in the pleadings "or otherwise". He raised an objection as to the maintainability of the suit under Sections 451 and 456 of the Companies Ordinance, 1984. His contention is that the bank guarantees were encashed by the plaintiff on the strength of orders obtained in suit against the Bank to which the defendant was not made a party and that the defendant has moved an application under Section 12(2), CPC being J.M. 41/2001 pending before this Court challenging the encashment of the Bank guarantee on the basis of fraud. Learned counsel has argued that the relief granted by the Court under Order XII, Rule 6 is a discretionary relief and not mandatory. His contention is that the plaintiff is a foreigner and after termination of the GSA agreement defendant has already instituted a suit for recovery of damages amounting to Rs.158 million against the plaintiff which is pending before the Court and in case this suit is decreed, the defendant would not be able to enforce the judgment/decree, if made in their favour. Learned counsel has placed reliance on case Sher Bahadur and others v. Muhammad Amin and others (AIR 1929 Lahore 569).
6. On an objection being raised by learned counsel appearing for the defendant that the statement was not prepared by the defendant, he candidly admitted that the basis of the statement was the statement of sales by the defendant as provided by them to the plaintiff during the period covered by GSA agreement. Learned counsel further admitted that the sale figures were provided periodically each month by the defendant to the plaintiff and the payment was to be made thereafter in pursuance to the agreement. However, the defendant in spite of making the sales failed to make payment of the sale proceeds against the airline ticket sold by them to the plaintiff.
These facts have been categorically stated on oath in the plaint as in the affidavit in support of the application under Order XII, Rule 6, CPC and the defendant has given evasive replies in the written statement and the counter-affidavit as already reproduce above. The learned counsel for the defendant also conceded that the amount to the statement represents the sale figures.
1987 CLC 2131) admission made otherwise than in pleadings was considered by this Court and it was observed as under:- "It is again manifestly clear that the above reproduced rule permits any party, at any stage of a suit, where admissions of fact have been made, either on pleadings, or otherwise, to apply to the Court for such judgment as upon such admission he may be entitled to. The admission need not, therefore, necessarily be made only in the pleadings. By laying down "or otherwise" the legislature has not restricted the admission only on the pleadings. These words are, in my opinion, of general application and there is no justification on the basis of the language used in rule 6 of Order XII to confine them to the admission made in the pleadings only as the learned counsel for the defendant desires me to do".
1985 CLC 2870) the suit was decreed on admission the basis of a letter written "without prejudice", and it has been held as under:- "Although the plaintiff has marked its letter dated 21.3.1981 as "without prejudice" it has in clear and absolute terms having accepted the amount paid to it declared that it will withdraw the suit. It is not a case where parties were negotiating a settlement. Here the parties had agreed to the terms and conditions, and in compliance thereof the defendants remitted the bank draft which was accepted by the plaintiff. In these circumstances, the statement to withdraw the suit was a firm declaration. The plaintiff's conduct in accepting the payment and making this declaration creates a legal right in the defendants and, therefore, in these circumstances by stating that the letter is "without prejudice" cannot rob of the defendant of their legal right. In Crescent Pak Soap and Oil Mills v. Pakistan (PLD 1964 Kar. 459) the plaintiff agreed to supply goods to defendant within a date specified by the contract."
1993 SCMR 1137) the admission was contained in a letter that was neither produced nor admitted or exhibited during the proceedings and the Hon'ble Supreme Court has observed:- "The learned counsel for the appellants had admitted the document which had been filed along with the written statement . After being admitted the fact that it was not exhibited does not exclude the document from taking it into consideration. The learned counsel for the appellants had not challenged the genuineness of the document, but admitted it to be genuine and correct. In such circumstances, if the exhibit number was not put on the document it will not make it inadmissible particularly when no evidence was orally produced by the parties. Thus, admitting the document in evidence or relying upon it was not an illegality which may vitiate the judgment and decree passed by the learned Single Judge and confirmed by the impugned judgment."
7. In the light of the above discussion I am of the opinion that mere institution of a suit for damages of Rs.158 million by the defendant against the plaintiff or the plaintiff being a foreigner company does not constitute a valid ground to reject this application.
8. In view of the above there exists a clear, unambiguous and unqualified admission of the amount of sale proceeds pertaining to the sale of airline ticket of the plaintiff's airline carried on by the defendant and the plaintiff is entitled to the same. Accordingly this application is allowed and the suit is partly decreed in the sum of Rs.29,568,431/- in favour of the plaintiff. The suit will, however, proceed for recovery of the balance outstanding amount of claim not covered under the preliminary decree.
Above are the reasons for the short order dated 30.10.2001.