' MAULVI ANWARUL HAQ, J.---On 6-4-1989 the respondent filed a suit against the appellant for the recovery of Rs,47,24,496.71 with mark-up @ 43 paisa per 1000 daily products. In the plaint it was stated that on 2-6-1986 the appellant wrote to the respondent that it was floating tender for import of tin-plate of various sizes and that first shipment would be in October, 1986 and second in December, 1986. The respondent was called upon to specify the quantity required by it and to opt for one of the .Two shipments. The request was to be accompanied with advance payment @ Rs,650 per metric ton. The terms and conditions were laid down in the joint import procedure which was Anne,ure A to the said letter. This offer was accepted by the respondent and it was settled that appellant would import 1000 metric ton tin-plate of various sizes on behalf of the respondent including 320 metric ton in the said first shipment and 680 metric ton in the said second shipment.
The matters were confirmed by both the parties through talex. Modification was effected inasmuch as the appellant was asked by the respondent to pay for 404.334 metric ton in the first shipment.
This modification was agreed to and sum of Rs,54,46,379 was paid to the appellant by means of a pay order dated 5-1-1987. The said quantity was collected by the respondent from the appellant on 6-1-1987 and 7-1-1987; that vide talex dated 2-2-1987 the respondent was informed by the appellant that another consignment of 164.104 metric ton was ready for delivery and payment be remitted. The respondent, however, was not in a position to make the said payment of Rs,22,10,481 and requested vide letter dated 9-2-1987 for extension of 30 days offering to pay interest at the bank rate on late payment. Meanwhile a sum of Rs,24,305 was sent to the appellant to cover Octroi charges payable on the said consignment; that on 3-3-1987 the respondent was informed that the final consignment of 399.4304 metric ton was ready for delivery and respondent was called upon to pay Rs,58,80,327. This time again the respondent was not ready with payment and vide letter dated 4-3-1987 requested for time to make said payment on payment of interest. Request was allowed on 9-4-1987; that vide letter dated 12-4-1987 the respondent was informed that a consignment of 322.537 metric ton would be available for delivery on 21-4-1987 and Rs,45,50,997 be paid for same. Again a request was made vide letter dated 15-4-1987 for extension of time in payment. This request, however, was rejected by the appellant vide talex dated 20-4-1987 and respondent was called upon to make total payment by 22-4-1987 failing which the entire quantity of 886.0714 metric ton was to be disposed of at the risk and cost of the respondent. The respondent proposed that date for payment be fixed at 20-5-1987. The appellant vide talex dated 27-4-1987 informed that for two consignments in the first contract the payment be made up to 4-5-1987 but refused to extend time for consignment under the second contract. The request was again repeated but was turned down by the appellant vide talex dated 7-5-1987 and the respondent was informed that said stocks are being disposed of at its risk and costs. The respondent then requested that it should be allowed to lift 164.104 metric ton against cash payment within six days and that the appellant should purchase" the remaining 721.967 metric ton at the market price in order to settle the accounts. The offer was rejected vide letter dated 3-6-1987 by the appellant; that vide letter dated 9-6-1987 the respondent was informed that the second consignment of 442.796 metric ton under contract dated 16-12-1986 was ready for delivery and payment of Rs,62,78,847 be remitted. This time the respondent informed the appellant that the said payment would be made only after the settlement of the matter of the earlier consignment. Another talex was sent on 22-6-1987 that after an account qua money be refunded to the respondent for earlier consignment payment for 442.796 metric ton be received. This talex was not responded and on 1- 9-1987 a cheque for Rs,2,00,0Q0 was sent to the respondent with account statement showing that said 442.796 metric tons have been sold at the risk and cost of the respondent. An explanation was sought as to how figure of Rs,2,00,000 has been worked out. In response the appellant vide letter dated 15-12-1987 informed that matter has been reconsidered and a sum of Rs,6,21,000 would be credited to the respondent's account after reversal of 3% serving charges and partial reversal of mark-up and trade charges; that vide letter dated 8-3-1988 the respondent demanded that siuLe 1328.8674 metric ton has been disposed of at risk and cost of the respondent, it was entitled to the market price for the same as on date of disposal. According to the respondent it was entitled to recover a sum of Rs,59,45,157. This claim was rejected by the appellant on 16-5-1988 on the ground that property in the said goods has not passed to the respondent and that the goods had been sold on no profit no loss basis to the public sector Ghee Units controlled by the appellant. It was, however, stated that final reply would be given after examination of the matter by the Legal Cell of the appellant. The respondent then vide letter dated 1-1-1989 claimed the said suit amount.
According to the respondent the property in the said tin-plate passed to the respondent as detailed in para-12 of the plaint. It was explained that the appellant itself acknowledged the fact that the property stood passed to the respondent when the appellant stated on number of occasions that the said consignment would be disposed of at respondent's risk and cost having been imported for the respondent at its request. It was also stated that the said goods were imported against licence issued in favour of the respondent. The claim was particularized in para.13 of the plaint. With these averments a decree for the said amount was prayed for.
2. In its written statement the appellant objected that the suit has not been filed by an authorised person; that there was no relationship of purchaser and seller between the parties; that the respondent cannot claim any entitlement in the said goods at all as he had not paid the full consideration for the same. On merits the manner in which the goods were imported and part delivery was made was admitted. The other averments regarding the arrival of the goods and communication made to the respondent was also admitted. Regarding the extension granted it was claimed that the figure 60 came to be wrongly recorded instead of figure 6 and this was clerical mistake. It was then stated as the respondent had not paid the price and was not able to get it released from the Customs he did not become the owner of the goods. It was admitted that the respondent was informed that the goods have been disposed of at its risk and cost and same have been diverted to Ghee Units of the appellant. In its replication the respondent took the plea that no relationship of purchaser and seller has been alleged in the plaint as respondent had purchased the tin-plate on behalf of the appellant. The contention of the appellant that the property in the goods had not passed to the respondent, on the said plea stated in the written statement was denied and the contents of the plaint were reiterated. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff is entitled to the sum of Rs,47,24,496.71 plus mark-up 43 paisas per thousand daily products basis, or any lesser amount? OPP
(2) Whether the plaintiff has no 'locus standi and cause of action to file the present suit? OPD
(3) Whether the suit is liable to be dismissed due to non-joinder of the parties? OPD
(4) Whether the suit is liable to be dismissed as defendant has not been pleaded and sued through some authorised officer? OPD
(5) Whether there is no relation between the plaintiff and defendant as purchaser and seller? OPD
(6) Whether the plaintiff is estopped by his own word and conduct to file the present suit? OPD
(7) Whether this Court lacks jurisdiction to hear the present suit? OPD
(8) Whether the plaintiff has not come to the Court with clean hands? OPD
(9) Whether the suit is defective in its present form, if so. Its effect? OPD
(10) Whether the suit has not been filed through authorised person of the plaintiff? OPD
(11) Whether the plaintiff had no entitlement to the tinplate's, till he had paid the full consideration thereof, and the defendant was not under any obligation to keep the tin-plates for the plaintiff?
OPD
(12) Whether the suit is time-barred? OPD
(13) Whether the plaint is liable to be rejected under Order 7, rule 11, Civil Procedure Code? OPD
(14) Whether the defendant is entitled to special costs under section 35-A, if so, to what extent?
OPD
(15) Relief.
' Vide judgment and decree dated 13-10-1994 all the said issues were found in favour of the respondent and, suit was decreed.
3. Mian Tariq Sultan, learned counsel for the appellant argues that this was case of sale of goods governed by the provisions of Sale of Goods Act, 1930. According to the learned counsel his client was unpaid seller within the meaning of said law and since notice had been issued to the respondent for payment of the price within reasonable time and admittedly the price had not been paid within the said time, section 54 of the said Act authorised the appellant to sell the goods and to recover the damages in case any loss was to be occasioned but conversely respondent had no right to profits if any on the re-sale. Relies on sections 20, 45 and 54 of the Sale of Goods Act, 1930.
In the same breath learned counsel argues that the property in goods had not passed to the respondent for the reasons that the goods had not been ascertained and price had not been paid.
Further contends that notwithstanding the admitted position on record that a sum of Rs,2.00,000 was paid to the respondent through cheque, as acknowledged in para.8 of the plaint, the said amount has been included in the decretal amount. Presses C.M. 2/95 for permission to lead additional evidence while contending that a sum of Rs,90,000 and another sum of Rs,6,21,000 were paid to the respondent and had to be adjusted. Also contends that the plaint had not been presented by duly authorised person inasmuch as whereas the plaint narrates that the respondent-company has authorised Mr. Anwar Chaudhry, General Manager Finance to file the suit, the plaint has been signed and verified by the Chairman of the Company. Also refers to resolution Exh.P.1 in this behalf.
4. Mr. Zahid Hamid, learned counsel for the respondent on the other hand argues that it is neither case of the appellant nor of the respondent that the relationship between the parties is that of seller and purchaser. According to the learned counsel it is a case where goods were imported by the appellant for the respondent on its behalf subject to conditions settled. Contends that the appellant acted as an agent for respondent and was liable as such to compensate the latter for disposing of goods to its detrimental. Learned counsel relies upon the cases of Purushotham Haridas and others v. M/s. Amruth Ghee Co. Ltd. And others (AIR 1961 Andhra Pradesh 143), Gopaldas v. Thakurdas (AIR 1957 Madhya Bharat 20), Mul ChandShib Dhan v. Sheo Mal. Sheo Parshad (AIR 1929 Lahore 666), Smt. Pani Bat and others v. Smt.Sire Kanwar and others (AIR 1981 Rajasthan 184) and N. Purkayastha and another v. Union of India (AIR 1955 Assam 33). Learned counsel concedes that the said amount as mentioned by the learned counsel for the appellant had been paid to the respondent and expresses no objection to the adjustment of the same and modification of decretal amount accordingly. Replying the last contention of the learned counsel for the appellant presses C.M. 1/C/97 for permission to lead additional evidence to produce a resolution authorizing the Chairman to file suit and to sign the plaint. In the alternative prays that Anwar A. Chaudhry, who had signed the replication and verified the same and also appeared as D.W.1 be allowed to sign and verify the plaint.
5. Impressed by the concession made by the learned counsel for the respondent in the matter of application for additional evidence filed by the appellant, rather admission of the claim itself, learned counsel for the appellant withdraws the said objection in the matter of signing and verification of the plaint as objected by him. The said Anwar A. Chaudhry shall now sign and verify the plaint.
6. We have gone through the records of the learned trial Court. We find that so far as the particulars regarding the nature and quantity of goods, price, terms of payment and import of goods are concerned, there is no dispute. The goods were imported and arrived in Pakistan, remained in possession of the appellant till such time that these were passed on to the units owned and controlled by it on no profit no loss basis. Controversy to be resolved in this is as to relationship between the parties in the matter of import of the said goods and further at a point of time the goods arrived in Pakistan and when they were disposed of by the appellant.
7. Now the said contentions of the learned counsel for the appellant, to our mind, are self- destructive. Before proceeding further we may state here that Mr. Zahid Hamid, Advocate, has very correctly stated that it was not case of any of the parties that there is relationship of seller and purchaser in the matter of said goods. We have already referred to the respective pleadings of the parties above. There is no allegation in the plaint that goods were to be sold by the appellant to the respondent or purchased by the respondent from the appellant. Similarly it has been specifically stated rather impressed in the written statement in form of preliminary objections that there is no relationship of seller and purchaser between the parties. Reverting back to the contentions of the learned counsel for the appellant. On the one hand he says that the property in the goods had not passed to the respondent and on the other he presses the rights of appellant as unpaid seller. The only reason stated for latter plea is that the price had not been paid. Needless to state that price had been settled and promised to be paid. Now section 11 of the Sale of Goods Act, 1930 lays down in absolutely unambiguous terms that the stipulation as to time of payment or not deemed to essence of contract of sale unless of course different intention appears from the terms of the contract. No gainsaying the fact that there was neither a contract of sale nor is there any contrary stipulation therein. Section 54 of the Sale of Goods Act, 1930, being relied upon by the learned counsel, proceeds on the premises stipulated in the said section 11 of the Sale of Goods Act, 1930.
On its plain reading said section 54 would be attracted in case where the property in the goods has passed to the buyer. This would be evident from the reading of subsection (2) of the said section 54. Under the said provision where the unpaid seller, to whom the buyer has not paid or tendered the price within a reasonable time, despite service of notice by him to the buyer to re-sell, he may re-sell goods and recover from the borrower damages for any loss occasioned on account of breach of contract. However, buyer shall not be entitled to any profit which may occur on the re- sell. Subsection (2) of the said section 54 then further provides that if such a notice is not given the unpaid seller shall not be entitled to recover such damages and buyer shall be entitled to the profit, if any, on the re-sale. It will thus be seen that the said section 54 caters for a situation where property in the goods has already passed and in case of absence of notice the buyer is not liable to pay any damages and is also entitled to the profit, if any, on the re-sale. The said contention of the learned counsel for the appellant is, therefore, neither here nor there and nothing turns on the same.
8. To our mind, a reading of the evidence on record would show that there had never been any cavil regarding the fact that property in the said goods always vested in the respondent. The manner and the intention with which the import was made stands admitted in the very pleading of the parties. Apart from this Exh. P.2 and the terms stated in the annexure thereto are revealing in this behalf. Exh.P.2 is a letter addressed by the appellant to the respondent informing that the next tender for import of Electrolytic Tinplate as specified in the said letter is due for import. The respondent was requested to intimate its requirement specifying size, quality and shipment in which it would like the same to be imported (there were two shipments). Letter then proceeds to state that respondent's question together with advance payment at the rate of Rs,650 per ton on "its share" be sent. The terms which are nomenclatured as "procedure for joint import of Tinplate and Chemicals" provided that Import Licence was to be arranged by the respondent and was to be transferred to the nominated bank of the appellant for establishing joint L.C. By GCP. The Condition No,3 calls upon the respondent to make advance payment equal to 8% of C & F value of "its share" and this was to include, inter alia, 3% service charges payable to the appellant. The Condition No,6 provides for clearance of the entire consignment "including share of the respondent", which was delivered at Karachi Port to its unit. Now it is the case of the appellant itself as also reflected in the several communications addressed to the appellant such as Exhs.P.19, P.22 and P.26; that the respondent was being warned time and again that the goods will be sold at its risk and cost. A reading of the pleading of the parties and said documents particularly Exh.P.2 and its annexure would clearly show that the appellant imported the goods for and on behalf of the respondents on the terms settled against the import permit of the respondent. The goods were throughout treated as the property of the respondent by using expression "its share of the imported goods or consignment". We may also refer here to Exh.P.28 which is letter dated 3-6-1987 addressed by the appellant to the respondent when latter requested vide Exh.P.27 to let the respondent lift 164.104 metric ton on cash payment and to purchase from the respondent 721.967 metric ton on the market value to settle accounts. In the said letter Exh.P.28 it was stated that the appellant imported tin-plates against its own tender and included the quantity required by the respondent on its request. Thereafter there is reference to the goodwill gesture shown by the appellant in the matter of allowing extensions of time in the matter of lifting tin-plate "imported for it". It was then complained that only consideration paid by the respondent to the appellant is 8% of the total value of the consignment which included only 5% as advance payment (we have already stated above that 3% was the service charges of the appellant). It was then stated that the total costs of the consignments "imported for respondent" was paid by the appellant on the day of the negotiation of documents. We deem it proper to reproduce para.2 of the said letter Exh.P28 hereunder:-- "2. In view of your failure to lift the subject consignments, despite extensions in time, further extension, as already intimated, cannot be allowed GCP also cannot agree to buy the tin-plate in subject consignments at the market rate from you because it is under no obligation to do so and because the entire delay in lifting of the consignments between the time of their arrival and now, has been due to your failure to lift these consignments and not due to any action or inaction on the part of the GCP. In view of this position, it is regretted that the GCP cannot accede to your request."
' A bare reading of the above contents of the communication of the appellant to the respondent would show that parties were always ad-idem that the goods are property of the respondent. The refusal to purchase the said goods was not based upon the absence of title but for reasons as stated above.
9. In the above almost admitted state of affairs on the record the contention of the learned counsel for the respondent stands borne out i,e, the appellant acted as an agent in the matter of said import of goods by the respondent and the transaction is subject to the incidence of agency governed by the relevant provision of law of agency as contained in the Contract Act, 1872. There is no cavil that the appellant having paid import price and incurred other expenses in the matter had lien on the said property of the respondent and having thus financed the deal 'could have acquired the said goods but this was subject to consent of the respondent as held in the case of Purushotham Haridas and others v. M/s. Amruth Ghee Co. Ltd. And others (AIR 1961 Andhra Pradesh 143). It is matter of record that the respondent never consented to acquisition of title by the appellant in the said goods.
10. Coming to the question of compensation. It has throughout been the stated case and plea of the appellant that in case of non-payment of the value of the consignments, same shall be sold at the risk and cost of the respondent. Now the plain and simple meaning of the said concept is that the goods were to be sold in the market and the matter' of risk and cost was to be determined accordingly in terms of sections 73 and 74 of D the Contract Act, 1872. The appellant instead of resorting to the said provisions proceeded to treat goods as belonging to it and to pass them on to the units owned by it on no profit no loss basis. In this view of the matter respondent who was the lawful owner of the goods becomes entitled to compensation which is the difference between sale price and market price on the date goods were passed on by the appellant to the said units which is without any authority and clearly in breach of the contract/ arrangement between the parties in the matter of import of the said goods. Anwar Ahmad Chaudhry, P.W.2 has stated that at the time the appellant passed on the goods in the manner stated above C & F price of the same was U.S $ 670 per metric ton and exchange rate was Rs,17.62 per U.S $. Abid Tariq D.W.-1 was unable to state as to what was the market value of tin-plate in the year 1987. However, Khurshid Ahmad D.W.-2 when confronted in the cross-examination stated that C & F price at the relevant time was about U.S. $ 650 per metric ton. The witness did not remember that the price was U.S.$ 670 per ton. In this state of evidence it stands established that the C & F value at the relevant time was U.S. $ 670 per ton. It is on this basis that the total claim has been worked out at Rs,47,24,496.71. The objection to the calculation made in the statement accompanying Exh. P.38 have already noted above and stands conceded by the learned counsel for the respondent. The overall effect is that a sum of Rs,9,11,000 shall have to be adjusted to the credit of the appellant.
11. For all that has been discussed above, this RFA is partly allowed inasmuch as the suit filed by the respondent/plaintiff shall stand decreed in favour of the plaintiff and against the appellant/defendant in the sum of Rs,38,13,496.71. No order as to costs.