' PARVEZ AHMAD, J.---The appellants th ough this regular first appeal have challenged the jud ment and decree dated 22-10-1989 by virtue of whic -suit for recovery of money filed by the present respondent was decreed in 'its favour to the tune of Rs,22,5,200 by the Senior Civil Judge, Lahore.
2. The facts are that the respondent before this Court and the plaintiff before the trial Court originally filed a suit for recovery of money amounting to Rs,30,5,200 with interest with the assertions that it being a registered firm carries on the business of purchase of pharmaceuticals and in this capacity entered into a contract for supply of Glucose Powder i,e, 64000 Kgs. At the rate of Rs,20.62 per Kg. For a total consideration of Rs,13,19,680 on 27-2-1984. The Officer Incharge of the Armed Forces Inspectorate of Medical Stores was to inspect these articles either in person or through a duly authorised agent. The said supply was to be made in instalment and the first being on 31-12-1984 and in the completion of this contract 52,000 Kgs. Of Glucose Powder had been supplied when at the time of last instalment a dispute arose that the supply could not pass the, test for "Foreign Sugars, Soluble Starch and Dextrins" as such was rejected on 21-2-1985. As the matter could not be finalized the respondent filed an appeal before the Secretary to Government of Pakistan, Ministry of Defence, Defence Production Division, Islamabad on 18-12-1986. It was ordered that a meeting be arranged in between the parties which was done on 17-8-1987 comprising of Col. Saeed Wahla, D.D.P.C., bh. Istikhar Ali, Managing Partner and Qamar Tahir Babri, Quality Control Officer of the respondent wherein it was agreed that out of the sealed stock a fresh sample be taken in presence of Quality Control Officer of the respondent and the matter be disposed of accordingly but it also proved fruitless. During continuance of all the said dispute a sample of the same batch from the supply which has been made to the appellants was sent to the National Institute of Health, Islamabad wherein it was opined that the sample was in accordance with the requisite test but in spite of this the remaining supply was not accepted. The respondent on account of this unlawful and unjustifiable rejection of the supply filed a suit for recovery of money claiming damages to the tune of Rs,30,5,200 as per details given in the plaint. The defendants contested the suit on various grounds including the ground that respondent itself was responsible for failure to complete the contract and the samples provided were not in accordance with the prescribed test. On the pleading of the parties the following issues were framed:--
(1) Whether this suit is barred under section 69 of the Partnership Act? OPD
(2) Whether this suit has become infructuous? OPD
(3) Whether this suit has not been filed and verified by a proper person? OPD
(4) Whether the rejection of the last instalment of supply of 12000 Kgs. Of Glucose Powder is illegal and unlawful? OPP
(5) Whether, the plaintiff is entitled to claim damages on account of mental torture and loss of business reputation? If so, to what extent? OPP
(6) Whether the cancellation of the contract between the parties to the extent of the last instalment of 12000 Kgs. Glucose Powder is illegal, unlawful and unjustified? OPP
(7) Relief.
3. The evidence produced by the parties was recorded and the trial Court after recording the evidence and hearing them decreed the suit of the respondent on 22-10-1989 to the tune of Rs,22,5,200 with costs. The present appellants feeling aggrieved filed the present regular first appeal which shall stand disposed of by this judgment by us.
4. The submission of learned counsel for the appellant is that the entire fault in the supply of articles was that of the respondent whereby the supply made by him could not pass the requisite test.
5. The submission of learned counsel for the respondent is that it has been making efforts to complete the contract and to get the supply tested all the times and even when a positive report was obtained from the National Institute of Health, Islamabad, the appellants refused to accept the supply and the entire fault was of that of the appellants and the respondent was and is entitled for damages as claimed in the plaint.
6. After having heard learned counsel for the parties and perusing the material made available it is established that the respondent continued to make the repeated efforts for completion of the contract but it were the appellants who in spite of a positive report Exh. P.5 from the National Institute of Health that the sample provided by the respondent was in accordance with the test laid down did not receive the supply. Even the appellants upon whom the onus had shifted after production of the affirmative evidence by the respondent did not produce such evidence or any cogent evidence that the respondent was at fault and was not entitled to the damages as claimed for by it.
7. In view of this discussion we hold that the respondent is entitled to the damages to the extent i,e, the price of Glucose Powder supplied by it amounting to Rs,12,37,200. As the appellant's conduct had made the respondent to keep the articles withheld in the godown, the respondent suffered godown charges for Rs,18,000 and is also entitled to that amount. The respondent is also entitled the loss of profit which had otherwise been earned by it. Had these articles been accepted in time or sold by it in the open market at the relevant time, and as regards loss of business in this regard as such we determine the amount to Rs,2,00,000 and reduce the amount of Rs,8,00,000 as awarded to it by the learned trial Court to Rs,2,00,000. There being no cogent evidence to prove the loss suffered by the respondent with regard to the loss of his business reputation and damages on account of mental torture we hold that the respondent is not entitled to it and accordingly we uphold the judgment and decree of the trial Court to the extent of recovery of Rs,14,55,200 with costs and dismiss the appeal of the appellants.