1. ' The suit has been filed for recovery of damages for defamation with the following prayer:-- ' The plaintiff pray for judgment and decree against the defendants jointly and severally as under:- - "(a) Damages to the plaintiff for Rupees Ten Millions;
(b) interest profit thereon;
(c) costs; and
(d) further or other relief."
2. ' The facts of the matter are that plaintiff No.1 is a registered partnership firm carrying on business as Cargo Agents and freight forwarders. Plaintiffs Nos.2 and 3 are the partners of the plaintiff No.
1. The plaintiff No. 1 is registered with IATA and has been in the Cargo Trade since 1978. The defendant No.1 is a banking, company incorporated in UAE and carrying on business in Pakistan while the defendant No.2 is the Manger Foreign Trade of the defendant No.1 with its office at Karachi. It is alleged that in the course of its business the plaintiffs handled consignments as Cargo Agents for Messrs Haksons International consignor. The plaintiff used the Airway Bills of the carrier Airframe the airline. Plaintiffs issued Airway bill No.057-1945-1670 dated 30-12-1987 and Airway Bill No. 057-1945-1751 dated 3-1-1988. The consignment to be carried on the basis of the aforesaid airway bills consisted of leather garments were destined for Manchester in the United Kingdom.
3. The consignor was the customer of the defendant No. 1 and 'was using banking facilities for negotiation documents of the consignments. On 1-2-1988 the defendants wrote letter to the plaintiff. This letter contained several false and defamatory allegations. Inter alia, that the consignments have not been entered for shipment and were still lying with the consignor and that the plaintiffs had issued fake airway bills with implication that the plaintiffs had issued airway bills without first obtaining the consignments from the consignor. Copy of this letter sent by the defendants was also endorsed to the airline, which constituted publication of defamatory material.
4. It is further alleged that the defendants No.1 through its officers particularly defendant No.2 committed several acts which constitute defamation, libel and slander as repeated telephone calls were made to the airline for several days levelling several false and malicious acquisitions of serious nature against the plaintiff. As a consequence of the letter dated 1-2-1988 and malicious telephone calls, the airline withdrew its stock of airway bills from the plaintiffs and the plaintiffs were deprived of business of booking cargo by Airfrance. This action of the airline was a direct result of defamation, libel and slander perpetrated by the defendants and it led to loss of business, reputation and prestige and caused financial loss and mental distress to the plaintiffs. It is further alleged that the publication of letter dated 1-2-1988 injured the reputation of the plaintiff and lowered its esteem and it caused the plaintiff to be regarded with contempt, dislike and disesteem.
5. Such results have been caused because there are only 23 IATA registered cargo agents operating in Pakistan and the news of the action taken by the airlines against the plaintiffs had spread rapidly among the members of the air cargo trade. It is stated that the allegations made by the defendants were baseless and unwarranted which implied that the plaintiffs had issued counterfeit freight airway bills which the plaintiffs had printed, forged or fabricated themselves and that such allegation was completely false to the knowledge of the defendants and that there is presumption that the defendants were activated by malice and intended that the business of the plaintiffs should be harmed and they suffer loss of prestige reputation and business. It is alleged that out of the two above mentioned airway bills, the consignment of airway bill 057-1945-1670 was delivered while the other airway bill was cancelled at the request of the consignor on 3-3-1998. The plaintiffs for the last 3 years had an average annual business with the airline approximately of rupees two million per annum and by the withdrawal of the airway bills stock by the airline, plaintiffs have suffered tremendous loss and damage and its reputation and its standing in air cargo trade has been harmed. Through legal notice dated 24-3-1988 the plaintiffs called upon the defendant No.1 tender an unqualified apology and to compensate them. The defendant through their counsel's letter dated 30-3-1988 attempted to set up counter case against the plaintiffs which was replied by the plaintiffs through their counsel's letter dated 4-4-1988 which was again replied by the defendant' No. 1 through its counsel's letter dated 12-4-1988. Consequently the plaintiffs have filed this suit alleging the following losses in Para 18 of the plaint:-- "(a) Loss of business fr6m the airline;
(b) loss of business generally;
(c) loss of reputations; and
(d) general damages."
6. ' The defendants have contested the matter and have filed joint written statement. In the written statement, defendants have taken preliminary objection that no cause of action for the suit has arisen, the airway bills being of Airfrance. The plaintiffs have no right to sue and that the suit is bad for non-joinder of proper and necessary parties i.e. The Airfrance and Messrs Haksons International.
7. As regards the merit of the case, the defendants have alleged that the consignor Haksons International are customer of the defendant No.1 and have been exporting leathers and routed certain exports through the defendant No. 1 .During the period between 21-10-1987 up to 10-1-1988.
8. On 6-1-1988 the consignor submitted to the defendant No. 1 export documents for U.S. Dollar 22.620 evidencing shipment of leather goods against L/C No. MAN: 1710 of Habib Bank Ltd. Manchester Branch. These documents contained an Airway bill No .057-1945-1670 dated 30-12-1987 issued by.
9. The plaintiff No. 1 as Agent for Airfrance evidencing shipment of leather Jacket by consignor to Messrs Pak U.K. Trade Center Ltd. Manchester containing representation that the goods described therein had been received by the plaintiff No. 1 in good order and condition as Agent of Airfrance and that the goods were destined for Manchester vide Airfrance Flight No.A F-175 of 31-12-87. The defendant No. 1 negotiated the documents in good faith in accordance with the normal practice and credited the consignor's account with net proceeds of the bill amounting to Rs. 384,413 on 6-1- 1988. Again on 10-1-1988 the consignor submitted to the defendant No. 1 export documents for U.S. Dollar 31,026 evidencing the shipment of leather goods against L/C No. MAN: 1833 of Habib Bank Ltd.
10. Manchester Branch. These documents contained Airway Bill No. 057- 1945-1751 dated 3-1-1988 issued by the plaintiff No. 1 as Agent of Airfrance evidencing shipment of 600 pieces of Santana Leather Jackets to Pak U.K. Trade Center Ltd. Manchester which airway bill contained representation that the goods described therein had been received by the plaintiff No. 1 in good order and condition and that the goods were destined to Manchester on Airfrance Flight No. AF-1251 of 4-1- 1988. The defendant No. I negotiated these documents and credited an amount of Rs.528,602 on 10-1-1988 to the consignor. The defendants subsequently learnt that the Foreign Buyer's Inspector.
11. Mr. Gill had declined to issue the inspection certificate, as both the consignment were not ready for shipment. The defendants in order to protect their "interest and in good faith contacted the plaintiffs who gave evasive replies and since the matter was serious as the defendant No.1 bank has parted with huge sum of money against the said airway bills, the defendant No.1 in good faith approached Airfrance for information who informed that it has not received shipment booked against the said two airway bills up to 15-2-1988. Since the said airway bills contained false representation that the goods have already been shipped and received by the carriers, the said airway bills were not airway bills in the eyes of law and the defendants rightly wrote letter dated 1- 2-1988 to the plaintiff No.l. The allegation of letter containing false or defamatory allegations was denied. It was further denied that the letter was published as sending a copy to Airfrance the principal of the plaintiff No. 1 did not amount to its publication. It is further alleged that while the defendants were contemplating criminal action against the plaintiffs and the consignor, the plaintiffs and the consignor sought intervention of common acquaintance. Mr. Tariq Rangoonwala for resolving the matter amicably pursuant to which Airway Bill No. 057-1945-1751 was amended after receiving of the goods from the consignor and upon insistence of the plaintiffs, consignor and Mr. Ragoonwala the defendants vide its letter dated 16-3-1988 withdrew its earlier dated 1-2-1988 with copy endorsed to Airfrance. The allegation of malice causing of injury to reputation, financial losses and mental distress was denied. The defendant also denied that there was any feeling of contempt, dislike and disesteem. The allegation of loss as alleged in para 18 of the plaint was denied. The defendants sought dismissal of the suit.
12. ' Following issues were framed on 26-11-1989:--
(1) Whether the real authors or owners of the subject Airways Bills were Messrs Air France? If so, whether the plaintiffs have any right to sue the defendants?
(2) Whether Messrs Air France and Messrs Haksons International are proper and necessary parties to the suit? If so whether the suit is barred for non-joinder of proper and necessary parties?
(3) Whether the plaintiff No.1 is registered partnership firm and can sue in its own name?
(4) Whether the subject Airways bills contained representations to the effect that the goods have been received by the carriers in good order and conditions? If so, whether the defendant No. 1 had discounted/negotiated the documents in good faith and in accordance with prevailing practices?
(5) Whether the letter dated 1-2-1988 contains any false or defamatory allegations? If so, whether the letter was ever published to any outsiders?
(6) Whether the plaintiff subsequently amended the airway bill No. 0571945-1751 after receiving the goods from the shipper and if so, whether the defendants withdrew the letter dated 1-2-1988 upon the insistence of the plaintiff, the shippers and Mr. Rangoonwala?
(7) Whether defendants letter dated 1-2-1988 was written in good faith and for public goods, if so whether its copy was rightly sent to Messrs Air France?
(8) Whether the defendants committed any cause constituting defamation, libel and slander or made any false or malice acquisitions are alleged in the plaint?
(9) Whether the plaintiffs have suffered any loss, business reputation and/or financial loss or mental distress or any damages as claimed in the plaint on account of any act of the defendants?
13. If so whether the defendants are liable for the same?
(10) What should the judgment or decree be?
14. ' The plaintiffs produced one witness in support of its claim namely Pushpa H. Narain the plaintiff No. 3 who was cross-examined. The defendant produced two witnesses from its side and summoned two further witnesses namely Mir Mujahid Ali Khan, the defendant No.2, Muhammad Wasim Iqbal, Manager Exports and Attorney of the defendant No.1 and the two summoned witnesses namely Muhammad Nasim Iqbani, Cargo Manager of Air France and Tariq Rangoonwala. The defendants witnesses were cross-examined.
15. ' I have heard the arguments of the learned counsel and have gone through the record. Issues Nos.1,2 and 3 were not pressed. The remaining issues being interconnected and inter-related to the controversy between the parties were jointly argued by the counsel of the parties.
16. ' Mr. Abdul Qayyum Abbasi, learned counsel for the plaintiffs contended that the two airway bills which are the subject of this suit were issued as dummy bills as per practice and supported his contention by referring to the cross-examination of the plaintiff witness. He has referred to articles 5 and 6 of the Convention for the Unification of Certain Rules Relating to International Transportation by Air. He further contended that the said two airway bills were negotiated by the defendants without obtaining full documents of L.C. And further that the letter dated 1-2-1988 in which the defendants have alleged airway bills to be fake has caused tremendous loss to the plaintiffs. He has referred to the case of Gray v. Jones (1939) 1 All. E.R. 798; Lewis and another v. Daily Telegraph Ltd. (1963) 2 All.E.R. 151 and C.M.G. Ogilvie v. Punjab Akhbarat and Press Company Ltd. AIR 1929 Lah.
561. On the other hand Mr. 'Iqbal L. Bawani learned counsel 'appearing for the defendants has argued that airway bills are title documents and negotiable and heavy duty is cast upon the carrier or its agent to issue true airway bills. The two airway bills in question were negotiable. He further argued that writing of letter by the defendants to the plaintiffs principal did not amount to publication and will not amount to defamation. He further contended that the two airway bills in question were issued by the plaintiffs without receipt of cargo mentioned therein and such fact is also admitted by the plaintiffs. He contended that the words `dummy' and 'fake' are synonymous and in this respect relied upon the meaning of word 'dummy' given in Blacks Law Dictionary. He further contended that the defendants did not make any allegation of forgery against the plaintiffs.
17. He referred to Article 11 of the Carriage by Air (International Convention), Act 1966. He further contended that the fact that the goods were not received by the plaintiffs of the said two airway bills stand admitted in evidence is further proved by the fact that out of the two airway bills one was amended after the goods referred to therein were delivered by the consignor to the plaintiffs which was after two mouths of the date of the original bill and the other airway bill was cancelled.
18. He stated that use of the word 'fake' in the letter dated 1-2-1988 exhibit 5/6 was aptly used. In support of his submission he has relied upon certain passages from Salmond and Houston Law of Torts 20th Edition, on thecase of Rustam K. Karanjia and another v. Kirshnaraj M.D. Thackersey and another, AIR 1970 Bombay 424 and the case of P.K. Oswal Hosiery Mills Millerganj, Ludhiana v. Tilak Chand L. Ghasita Ram Jain A.1.R. 1969 Punjab and Haryana 150.
19. ' The examination of the record shows that material facts of the matter are not in much dispute inasmuch as the plaintiffs admit that they have issued the two airway bills as dummy bills i.e. Without receiving of goods mentioned therein from the consignor, that the defendants have negotiated those bills and made payment against them to the consignor, that the defendants have written letter dated 1-2-1988 exhibit 5/6 to the plaintiff No. 1 and endorsed its. Copy to Airfrance, that on defendants grievance, the matter was resolved on the intervention of Mr. Tariq Rangoonwala and out of the two airway bills, consignment in respect of one airway bill after its amendment was delivered and shipped after two months of its original date, and that on the complaint of the defendants through letter dated 1-2-1988 exhibit 5/6 Airfrance withdrew all the stocks of airway bills from the plaintiffs thereby implying that plaintiff No.1 has ceased to be its Cargo Agent. In view of the above admitted facts, the crucial point on which the matter can clinch is whether the two airway bills in question issued by the plaintiffs were fake airway bills as is alleged by the defendants in letter dated 1-2-1988 exhibit 5/6 and that the word so used by the defendants was true or untrue statement. If the answer to this question is in negative, the matter will require further discussion as to its consequences i.e. As to whether it constituted defamation, and whether endorsing of its copy to the plaintiff's principal Airfrance will amount to its publication and the amount of damages to which the plaintiffs will be entitled. However, if the answer to the above question is in the affirmative, in my view, there will be no need to go into further question referred to above.
20. ' The plaintiffs witness in his cross-examination in respect of the two airway bills has stated as follows:- "I am shown the copy of Airway Bill No. 057-1945-1670 dated 30-12-1987 and Airway Bill No. 057- 1945-1751 dated 3-1-1988 and I say that these are the copies of initial Airway Bills Nos. 057-19451670 and 057-1945-1751. I produce them as exhibits 5/1/A and 5/2/B. Further explained that these copies which have been produced by me are the dummy copies of the Airway bills."
21. ' The plaintiffs witness has further stated in his cross-examination:-- "By dummy airway bills I mean that these are not genuine airway bills; these are merely a drafts which can be corrected at the behest of the shippers and then the original airway bills are issued".
22. ' The counsel for the plaintiffs has relied upon Articles 5 and 6 of the Convention for the Unification of Certain Rules Relating to International Transportation by Air singed at Warsaw on 29-10-1929 as amended at the Hague on 28-9-1959. It may be pointed out that these conventions were applied as law in Pakistan by the Carriage by Air (International Convention), Act 1966. These conventions were incorporated in the First Schedule of this Act. The Convention being part of the Act, its provision will be referred with reference to the Act. Articles 5 and 6 to the First Schedule of the Act are as follows:-- "5:---(1) Every carrier of goods has the right to require the consignor to make out and hand over to him a document called an "airway bill"; every consignor has the right to require the carrier to accept this document.
(2) The absence., irregularity or loss of this document does not affect the existence or the validity of the contract of carriage which shall, subject to the provisions of rule 9, be none the less, governed by these rules.
23. 6:---(1) The airway bill shall be made out by the consignor in three original parts and be handed over with the goods.
(2) The first part shall be marked "for the carrier," and shall be signed by the consignor. The second part shall be marked "for the consignee"; it shall be signed by the consignor and by the carrier and shall accompany the goods. The third part shall be signed by the carrier, and handed by him to the consignor after the goods haye been accepted.
(3) The carrier shall sign prior to the loading of the goods on board the aircraft.
(4) The signature of the carrier may be stamped; that of the consignor may be printed or stamped.
(5) If, at the request of the consignor, the carrier makes out the airway bill, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor."
24. ' The defendants counsel has relied upon sub-Article (1) of Article 11, which is as follows:-- "11:---(1) The airway bill is prima facie evidence of the conclusion of the contract of the receipt of the goods and of the conditions of carriage.
25. ' The copies of airway bill which have been produced as exhibits 5/1/A and 5/1//B on the face of its contains stipulation in the following words:-- "It is agreed that the goods described herein are accepted in an apparent good order and condition (except as noted) for carriage subject of the conditions of contract on the reverse hereof, the shippers attention is Drawn to the notice concerning carrier's limitation of liability. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying supplemental charge if required."
26. ' The name and address of the shipper, name and address of the consignee the name of the carrier the airport of departure, the airport of destination, flight numbers and their dates and description of the goods are mentioned in the airway bills. The date of the airway bills is also mentioned so also declared value for customs. In Air Cargo Regulation and Claims by Jean-Louis Magdelenat. English Language Edition 1983 at page 42 the author has described by the role of airway bill as follows:-- "As the expression of a consensual contract, the airway bill has an important role to play. As provided by Article 11 of the Warsaw Convention, it is the instrumentum which constitute prima fade evidence of conclusion of the contract, receipt of the goods and acceptance of the condition of contract. With regard to the acceptance to the conditions, it has been seen that the airway bill is effectively a contract of adhesion, or standard form contract since the customer can hardly discuss the clauses and often signs without reading the text of the conditions. Moreover, a multitude of carbon copies make deciphering difficult. The case of Woods Donegan & Co. Inc. v. T.
27. W. A . Concerns the adequacy of notice on the airway bill and thus constitutes the air cargo equivalent of the famous Lisi case."
28. ' The reading of the text of Articles 5, 6 and 11 coupled with stipulation made on the face of the airway bills and the role of airway bill that has been described makes it abundantly clear that the airway bill is a contract made between the shipper and the carrier and is a prima facie evidence of such contract, receipt of goods and acceptance of the conditions of contract. My concern in the present case is about the receipt of goods by the carrier. The two airway bills in its stipulation which appear on their face admits that the goods described herein are accepted in apparent good order and condition. From these words, the only conclusion one can make is that firstly the goods have been accepted by the carrier for carriage and secondly the carrier has found the goods in apparent good order and condition. Both these stipulation, cannot be made by the carrier unless the goods are actually delivered to it for carriage. Further Article 6(1) of the Act specifically require the airway bill shall be made out by the consignor in three original parts and handed over with the goods. Article 6(2) inter alia provides that the third part shall be signed by the carrier and handed by him to the consignor after the goods have been accepted. Article 11(1) provides that the airway bill is prima facie evidence of the conclusion of contract of the receipt of goods and of the conditions of carriage. These provisions of the Act in clear terms lays down the rule of requiring the carrier to sign airway bill after the goods have been accepted as the airway bill constitutes prima facie evidence of the receipt of goods by the carrier. Once the carrier sings and issues the airway bill, there remains practically no room to disbelieve what the text and tenure of the airway bill describe, therefore, the provisions of law as mentioned above cast heavy duty on the carrier to sign and issue airway bill only when the goods mentioned therein are received by it. In the present context, it is not disputed that the cargo agent the plaintiffs by signing and issuing airway bill did bind the airline as its principal.
29. ' The plaintiffs counsel has not pointed out any provision of law requiring issuing of dummy airway bill. The plaintiff witness in his cross-examination has admitted that the two airway bills issued by it were not genuine airway bills. In the face of this admission, I am at loss to understand as to how grievance has arisen to the plaintiffs to file the suit fur defamation. 01,vioursly if the airway bills as admitted by the plaintiff witness were not genuine, its immediate consequence would be that they were fake. In the Chamber' s 21st Century Dictionary revised addition, the term 'fake' has been given the meaning as follows:-- "fake someone or something or an act that is not genuine, adj not genuine; false, counterfeit."
30. It is established law that in the case for defamation, the burden to prove the fact that the act of the defendant was based on true facts lies upon the defendant. In the present case the plaintiffs evidence itself shows that the two airway bills signed and issued by them were not genuine which in other words will be fake. Therefore, the conclusion in respect of the letter dated 1-2-1988 exhibit 5/6 that the defendants did not cause any statement in it amounting to defamation.
31. ' The counsel for the plaintiff has also referred to para.9 of the affidavit-in-evidence of plaintiff witness and has contended that the allegations made therein were not specifically challenged by the defendants. Para 9 of the affidavit-inevidence of the plaintiffs is as follows:- "9. In addition to the letter dated 1-2-1988, defendant No.1 through its officers, particularly defendant No.2, committed several acts which constitute defamation, libel and slander. Defendant No.2 who is author of the letter, made repeated telephone calls to the airline for several days. He levelled several false and malicious accusations of a most serious nature against us."
32. ' Now the reading of the above para shows that there is not even a hint as to what acts of defamation, libel and slander was committed by the defendant No.1 through its officers. It is alleged that the defendant No.2 made repeated telephone calls to the airline for several days and levelled false and 'malicious' accusations of most serious nature against the plaintiff but the substance of false and malicious accusations of most serious nature are not disclosed. In the absence of evidence containing substance and actual matters of libel slander and false accusations, in my view no case for defamation can be made. Defamation is caused through spoken words or through writing containing defamatory material. Para 9 of the affidavit-in-evidence does not contain the spoken words or writing which was slanderous or libelous. There was thus no need for the defendants to challenge the statement made in para 9 of the affidavit-in-evidence of the plaintiff witness. The law cited by the learned counsel, in view of the above need not be discussed as they are not directly on the point involved.
33. ' Consequently the suit fails and is dismissed. By a short order dated 5-12-2003 the suit was dismissed and above are the reasons for it.