AMIR HANI MUSLIM, J.---This High Court Appeal has been directed against the order dated 31-10- 2002 passed by the learned Single Judge whereby he allowed the application under Order XII, Rule 6, C.P.C. (C.M.A. No,3611 of 2001) tiled by the respondent partly decreeing Suit No,613 of 2001 of the respondent against the appellant.
2. Brief facts as they appear front the pleadings of the parties are that the appellant was the General Sales Agent of respondent Airline under an agreement dated 1-7-1995 and on account of some business disputes between the parties agency of the appellant was terminated by the 'respondent as a result of which the appellant tiled Suit No,1104 of 1998 for recovery of Rs,156 Million against the respondent in this Court. The respondent also filed Suit No,112 of 1999 against the appellant in this Court which was subsequently withdrawn with the permission to file a fresh one.
3. The respondent tiled a Suit No,613 of 2001 against the appellant for recovery of Rs,63.257,053.59 with interest/mark-up and devaluation loss against the appellant seeking following relief:- "That the plaintiff prays for judgment and decree:
(1) In the sum of Pak Rs,63,257;053.59 against the defendant with further interest/mark-up at the rate of 21% and further compensation towards the depreciation suffered by the Pak Rupee against the US Dollar from the date of institution of this suit.
(2) Attachment of all assets and/or income of the defendant and its Directors and seizures of its bank accounts.
(3) Arrest and. Detention of the Directors of the defendant.
(4) Any other relief that this Hon'ble Court-may deem just and proper."
It was pleaded in para. 7 of the plaint of Suit No,613 of 2001 as under:-- "7. That it is emphasized that the defendant as of 25-2-2000 admits that a total sum of Rs,58,868,431 is due to the plaintiff. Even after the adjustment of recovery of Rs,29,300,000 by way of encashment of bank guarantees the admitted amount totals Rs,29,568,431. (true copy of statement of account issued by the defendant on 25-2-2000 is annexed hereto marked 'H').
4. Annexure "H" filed with the plaint by the respondent reads as follows:-- "Amount due from Gerry's International to Qatar Airways.
Description Amount as peramended statement PKR Remarks Sales Proceeds July to November , 199860,512,379 Under Reporting of Pax Sales September, 1998538,750 Refund for period December 1998 to May , 1999 (1,522,267)
Credit Notes for ORC(1,267,650)
Gerry's Invoice No.651 1(60,475) Amount adjusted for dif ference in Cargo Sales report for May , 1998 Booking Class Violation1,087,171 Fare dif ferences others76,142 Cargo dif ference in Freight Charges22, 812 Incentive to BEY 127,361 Giv ays 50% (sic) 69,680 Debit Note for 50% of wrist watches and alarm clocks Loney Rate to JED andKB on KRT Cargo8,084 Amounts accepted previously by Gerry's1,093,555 Gerry's Invoice No,6583(7,260) FOC tickets for 747 ,staf f Gerry's Invoice No,5122(1,683,490) April-June, 1998 corporate tax paid by Gerry's Gerry's Invoice No,5150(13,347) FOC tickets for 747 staf f Gerry's Invoice No,7822(6,919) Fare dif ference between child and adult fare Total: 58,974,496 CR. Note AX CP 990255 Rs,37,31 1 For Refund CR. Note 904 Rs,47,788 For Refund CR. Note 934 Rs, 3,025 For Refund CR. Note 952 Rs, 2,185 For Refund CR. Note 958 Rs,15,756 For Refund Total: Rs,58,868,431 final bal"
5. As against this, the appellant filed its Written Statement and in para.6 they replied to the contents of paras. 6 and 7 of the Plaint in the following words which read as under:-- "(6) That the contents of paras. Nos.6 and 7 as stated are incorrect and vehemently denied. The defendant has instituted the suit and also filed an High Court Appeal for the redresses but since the plaintiff having hands in gloves with M/s. A.N.Z. Grindlays Bank got encashed the Bank Guarantees which results that the defendant's in suit was frustrated. Since the GSA Agreement was terminated illegally and the defendant suffered with huge losses more than Rs,156 million and the accounts are yet to be settled.The plaintiff is avoiding to settle the account and to pay the expenses incurred on the instances and the desires of the plaintiff therefore the claim thus lodged by the plaintiff is not admitted. The plaintiff is avoiding to settle the amount and is using all the tactics to pressurize the defendant to achieve its nefarious designs."
6. It appears that the respondent after going through the contents of the Written Statement filed by the appellant, made an application under Order XII Rule 6 read with section 151, C.P.C. (C.M.A. No, 3611 of 2001) before the learned Single Judge, praying therein for grant of judgment on admission in the sum of Rs,29,568,431 against the appellant. In para. 3 of the Affidavit filed in support of the said application, the respondent has pleaded as under:-- "3. 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 own statement dated 25-2-00 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 A.N.Z. Grindlays' Bank on 29-9-00, the admitted amount stands at Rs,29,568,431. (True copy of statement dated 25-2-00 is annexed hereto marked 'CAI')."
7. As against this, the appellant filed counter-Affidavit to the application and in para. 2 of its counter-affidavit, the appellant stated as under:-- "2. That I have gone through the contents of application filed by the plaintiff and affidavit in support thereof and have to state that the plaintiff 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 Co., therefore filed a suit bearing No,11-4 of 1998 for the recovery of Rs,156 million, which is still pending adjudication before this Honourable Court. I say that the application tiled 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."
8. The learned trial Judge after hearing the parties was pleased to allow the application of the respondent under Order XII, Rule 6, C.P.C. (C.M.A. 3611 of 2001) and partly decreed the suit against the appellant in the sum of Rs,29,300,000 holding that the appellant has clearly, unambiguously, and unqualifiedly admitted the amount of sale proceeds detailed in the statement furnished by the appellant to the respondent which was annexed as Annexure "H" to the plaint, the appellant, therefore, were liable to pay to the respondent such sums. It was further observed in the impugned order that-since the amount shown in the referred statement (Annexure "H") represents the sale proceeds pertaining to the sale of airline tickets of the respondents' Airline carried on by the appellant, the appellant having given evasive replies in its written statement and the counter- affidavit and the appellant's counsel has conceded that the amount in the statement represents the sale figures, therefore, the learned Single Judge was of the opinion that in such circumstances the appellant has admitted the claim of the respondent and consequently the application made by the respondent under Order XII, rule 6. C.P.C. Was allowed.
9. Mr. Kazim Hasan. Learned counsel for the appellant, has argued that the learned Single Judge has ex facie passed the order overlooking the attending circumstances accepting that the statement filed with the plaint, Annexure "H", since having been prepared on the basis of the periodical statements furnished by the appellant, the appellant were bound by such statement which was treated as an admission of the claim of the respondent. He also argued that the learned Judge did not consider the preliminary objections raised by the appellant in the written statement, which read as under:-- "Preliminary objections:
(1) That suit, is hit by the provision of section 34 of Arbitration Act.
(2) That the plaintiff has no locus standi to institute the present suit as the principle of res judicata is applicable. The plaintiff has withdrawn Suit No,112 of the 1999, admittedly not complying with the provisions of section 456 of Companies Ordinance, 1984.
(3) That the suit is pertaining to the period when the plaintiff had not complied with the provision of sections 451 and 452 of the Companies Ordinance, 1984 as such the suit is barred under the law.
10. The learned counsel for the appellant submitted that the learned Single Judge has failed to notice that in the opening lines of para. 6 of th written statement in reply to para. 7 of the plaint which read that "the contents of paras. Nos.6 and 7 as stated are incorrect and vehemently denied". Additionally he submitted that para. 2 of the counter-affidavit filed by the appellant to C.M.A. 3611 of 2001, the appellant also specifically denied and disputed the claim of the respondent and admission alleged to have been made in regard to payment of any amount to the respondent.
11. Mr. Kazim Hasan further submitted that if legal objection as to maintainability of the suit for account was taken whole of the impugned decree could not have been passed. He argued that an admission under Order XII, rule 6, C.P.C. Requires that it should be "unequivocal", "clear", "unconditional" and "unambiguous". Mr.Kazim Hasan submitted that all these ingredients which the law recognizes are missing. In support of his arguments he has relied upon the case of Macdonald Layton & Company Pakistan Ltd v. Uzin Export-Import Foreign Trade Co., 1996 SCMR 696, wherein their lordships while interpreting Order XII, rule 6,. C.P.C. Had held that the provision provides summary and speedy remedy in cases where admission was made by defendant in pleadings or outside it but in order to attract provisions of Order XII, rule 6, C.P.C. Admission should necessarily be unequivocal, clear, unconditional and unambiguous. Their lordships further held that such admission should not only confine to the amount but also admit liability to pay it to the party.
12. Mr.Kazim Hassan while advancing his arguments submitted that a legal objection in a suit for accounts in regards to its maintainability restricts a Court from passing decree on admission. He submitted that assuming for the sake of arguments the alleged admission could at best be in respect of the amount but the claim of the respondent is not recoverable in view of the legal objections raised by the appellant as to the maintainability of the suit itself.. He relied upon the case of Macdonald ibid, in which their lordships has held that passing of a judgment and decree on admission of the defendant is the discretion of the Court which should be exercised in a judicial manner and as not as a matter of right. Their lordships further held that even if an admission has been made .But it is subject to clarification regarding maintainability of the suit' or any such legal objection which goes to the very root of it, it would not be proper to exercise discretion and grant decree on such admission.
13. Mr. Kazim Hassan has further argued that both the parties have filed suits, which were in the nature of accounts. Therefore, the part decree in the face of the facts was nullity in the eyes of law as at no point of time the claim of the respondent was ever admitted by the appellant.
14. As against this Mr. Zahid F. Ebrahim, learned counsel for respondent has submitted that the statement filed by the respondent with the plaint as Annexure. "H" was based on the details of the sales of air tickets furnished by the appellant during the period of GSA agreement. Said statement was stamped by the appellant and was filed with the plaint in Suit No,613 of 2001. According to him, the appellant have not disputed the factum that the figures contained in the statement were not based on the details provided by the appellants in any manner by denying it in Written. Statement or in the counter-affidavit, > therefore, the such act constitutes admission. This very fact, according to the learned counsel, was sufficient to make the respondent entitled to decree on' admission for the amount mentioned in the statement, Annexure "H" to the plaint. The learned counsel has taken us through the relevant paragraphs of the pleadings and the affidavit filed in support of the application.
15. We have heard the learned counsel and have perused the record Mere non-denial of a fact in the written statement could not be construed as an admission and that too to be equated as "unequivocal", "clear" and "unambiguous". Mr.Zahid Ebrahim is correct to the extent that statement.
Annexure "H", which the respondent have filed along with the plaint, has not been commented upon by the appellant in its written statement but this would not lead to Constitute admission of the appellant nor any inference of , 'the nature could be drawn to believe something for which law requires proof through leading evidence by the parties nor could this be treated as admission of the liability of the appellant. The opening lines of para.6 of the written statement deny the claim of the respondent and mere non-denial of the fact that the statement tiled with the plaint by the respondent which, according to them. Was prepared on the basis of sale transactions of different months, supplied by the appellant would not bring the case of the appellant to be equated as admission within the four corners of the Order XII, Rule 6, C.P.C.
16. Mr.Kazim Hasan has rightly pointed out that non-denial of a document in the Written Statement in no way amounts to admission of the liability of the claim, which otherwise required settlement through documentary evidence. He has relied upon the judgment of the Honourable Supreme Court in the case of Macdonald Layton (supra), reported in 1996 SCMR 696. Which fully supports the submission of the learned counsel. We are also not persuaded by the reasoning of the learned Single Judge that the counsel for the appellant/defendant had admitted/conceded during arguments and/or candidly admitted that statement Annexure "H" of the plaint was prepared by the respondent on the basis of the periodical statement of sales of 'air tickets supplied by the appellant. This argument in no way place the case of the respondent on a higher pedestal as we are of the opinion that "admission" of a party should not merely be confined to the figure claimed but should also include the liability to pay. It was specifically pleaded by the appellant that both the suits were filed by the parties against each other and accounts were yet to settle. How could, in such circumstances, a "statement" which has come from the custody of the respondent constitute an admission even if such a statement has not been specifically disputed.
17. For the aforesaid reasons, we have allowed the appeal by our short order on 22-11-2002.