' MIAN HAMID FAROOQ, J.-Islamic Republic of Pakistan etc., appellants/defendants, through the filing of the present appeal have called in question judgment and decree dated 21-2-1995, whereby the learned trial Court passed a decree for the recovery of Rs.8,69,000 favouring the respondent.
2. Facts leading to the filing of the present appeal are that the respondent/plaintiff filed a suit for the recovery of Rs.8,69,000 against the appellants, alleging therein that appellant No,1, through appellants Nos.2 and 3, invited tenders for the supply of 9780 blue `Danis' his tender was accepted and a contract was executed between the parties, which was completed and the respondent supplied the requisite quantity of goods at the rate of 35.50 each. On 31-8-1986, the respondent firm received another message from the appellants to further supply 39,500 'Danis' and the respondent was asked to give his willingness regarding the said supply. In response thereto, the respondent showed his inability to reduce the price, offered to supply the `Darris' on the previous rate i,e, 35.50 each uptil 31-3-1987 and further required the appellants .To convey their willingness, vide message dated 1-9-1986, but the said letter was never replied and instead thereof the appellants sent two copies of the draft contracts for the signatures of the respondent for finalization of the contract, but the respondent returned the said contracts without signing the A same. Appellant No,3 again sent these contracts to the respondent, but the same were again sent back, unsigned by the respondent on 20-5-1987, with the assertion that the matter had already stood closed. In this manner although no written agreement was entered into between the parties, yet appellant No,3, through letter dated 10-6-1987, intimated the respondent that as he has failed to fulfil his contractual obligations, therefore, the contract for the supply of 39,500 'Danis' has been cancelled and the amount thus, incurred by the Government, in re-purchasing the stores, shall be borne by the respondent. Later on, the appellants recovered the amount of Rs".8,69,000 from the other bills of the respondent. According to the stance of the respondent, the action of the appellants was illegal, they were not entitled to recover the suit amount and with the aforenoted assertions the respondent filed the suit for the recovery of Rs.8,69,00n. The appellants resisted the suit by way of filing the written statement thereby taking certain legal objections, however, on merits, it was pleaded that the respondent was offered to supply 39,500 'Darns' on the same terms and conditions, which offer was accepted by the respondent and thereafter draft contracts were sent to the respondent, but the same were not signed. The case of the appellants is that after the receipt of the letter dated 1-9-1986 by them, although the respondent did not sign the written agreements, yet it amounts to entering into an oral agreement. It was further submitted in the written statement that A when the respondent failed to perform his part of the contract, therefore, the contract was cancelled at the risk and costs of the respondent and he was asked to deposit a sum of Rs.8,69,000. It is the stance of the appellants that as the respondent violated in fulfilling his contractual obligations, therefore, the suit amount was rightly deducted and the suit merits dismissal.
3. Out of the divergent pleadings of the parties the learned Civil Judge framed the following issues:--
(1) Whether the plaintiff was not liable to the defendants for the payment of Rs.8,69,000 and there was no contract between the parties and there was no default for the fulfilment of the contract between the parties? OPP
(2) Whether the defendants illegally recovered the amount of Rs.8,69,000 from the other bills of the plaintiff, if so to what effect? OPP
(3) Whether the action of the defendants in terms of Letter No,71631/P-17, dated 10-6-1987 is illegal and void because there was no contract between the parties for the supply of Durris Blue and no question of its cancellation, at plaintiff's risk is illegal? OPP
(4) Whether the plaintiff is entitled to recover back from the defendants amount of Rs.8,69,000 illegally deducted from the bills of the plaintiff? OPP
(5) Whether the plaint does not disclose any cause of action so the same is rejected under Order 7, rule 11, C.P.C.? OPD
(6) Whether the suit is not maintainable in its present form? OPD
(7) Whether the plaintiff has not come to the Court with clean hands? OPD
(8) Whether the plaintiff himself has violated his obligations, the terms and conditions of the.
Contract and the plaintiff was bound to supply the contracted material and the cancellation of the contract by the defendants is just and legal? OPD
(9) Whether the defendants have legally deducted the amount of 12s.8,69,000 from the plaintiff?
OPD (10)Relief.
' In order to prove the issues, the onus of which was laid upon the respondent/plaintiff, Sheikh Muhammad Tariq appeared as P.W.1 and produced certain documents, which were exhibited as Exh.P.1 to P.6. The appellants produced Major Shaheen Muzaffar as D.W.1, who also produced documents, which were exhibited as Exh.D.1 to D.15.
4. The learned trial Court after recording the evidence, as noted above, passed decree for the recovery of Rs.8,69,000 against the 'appellants vide judgment and decree dated 21-2-1995, which has been impugned in the present appeal.
5. The learned Deputy Attorney-General has contended that the refusal of the plaintiff to sign the contracts, sent to him vide letter dated 7-12-1986, is of no consequence, as after the receipt of letter dated 1-9-1986, oral contract came into existence; that on 10-6-1987. The contract was cancelled by the appellants and as they suffered loss to the tune of the suit amount, therefore, the deduction of the suit amount by the appellants was in accordance with law and that D.W.1 has duly proved the loss caused to the Government, as no evidence in rebuttal was produced. In this perspective the learned Law Officer has submitted that the findings rendered by the learned trial Court are the result of misreading of documentary evidence.
' Conversely, the learned counsel, representing the respondent, While supporting the impugned judgment, has contended that the offer made by the appellants vide letter dated 31-8-1986, was never accepted and, thus, no valid contract was ever entered into between the parties, therefore, the question of its cancellation, as comprehended by the appellants, did not arise under the circumstances. He has further contended that if the appellants suffered any loss that was due to their own acts and omissions, the same cannot be in any way recovered or deducted from the respondent and, thus, he is entitled for the recovery of the suit amount, which was illegally recovered from the respondent.
6. Admittedly, there is no dispute between the parties about the earlier contract, dated 3-3-1986, executed between the parties, which was completed, as the respondent supplied the required quantity of `Darris'. The only dispute between the parties is regarding the subsequent matter, whereby the respondent was asked by the appellants to supply 39,500 'Darris' vide fax message dated 31-8-1986 (Exh.D.3 = Exh.P.3). In nutshell the case of the respondent is that as letter dated 31- 8-1986, was not accepted, therefore, no concluded contract came into existence and, thus, the question of violation of the agreement, which was not at all entered into, does not arise. On the other hand, the stance of the appellants is that as the respondent showed his willingness, through telex message dated 1-9-1986 (Exh.D.4 = Exh.P.4), to supply the requisitegoods, therefore, an oral agreement was entered into, the terms of which were not complied with by the respondent and, thus, the loss caused to the appellants is recoverable from the respondent.
7. Upon the examination of the record, we find that the real dispute between the parties is as to whether telex message, dated 1-9-1986, sent by the respondent, constitutes a valid and legal acceptance and as to whether a concluded contract was entered into between the parties. The appellants, through telex .Message, dated 31-8-1986, asked the respondent to confirm his willingness to supply 39,500 'Danis' as per terms and conditions of earlier contract dated 3-3-1986, with maximum price reduction and in the minimum delivery period. The said letter was responded by the respondent, vide telex message dated 1-9-1986, whereby he showed his inability to reduce the price than the previous rate; accepted to repeat order for the said quantity at the previous rates; asked for the delivery period uptil 31-3-1987, or earlier and required appellant No,3 to convey its willingness regarding accord of contract. In our view the entire controversy hinges upon letter dated 1-9-1986, therefore, it would be appropriate to reproduce a portion of the said document, which is as under:-- ' Hence any reduction in price than previous rates is not repeated not possible. However to serve Defence Department keep our machinery manpower busy we accept repeat order for the said quantity at the previous rates that is rupees thirty five paisa fifty each. Delivery period 31st March, 1987 or earlier. Kindly convey willingness reg. Accord of contract enabling us to manage raw material. Thanks regards."
' It flows from the above, that the offer made, by the appellants, through letter dated 31-8-1986 (Exh.D.3), was not absolutely accepted by the respondent vide letter dated 1-9-1986 (Exh.D.4), but counter-proposals were made to the appellants that he is not willing to reduce the price; would supply the requisite quantity of goods at the previous rate and the delivery period would-be up to 31-3-1987, or earlier. With all these counter-proposals the respondent required the appellants to convey their willingness. It is evident from the record that this letter was neither replied nor the appellants ever rejected or accepted the counter-proposals made by the respondent. We find from the record letter dated 7-12-1986 (Exh.D.5) addressed to the respondent from the appellants, accompanied by the draft contracts requiring him to make 27 copies of the same and sent them to the appellants by 11-12-1986. However, admittedly, those contracts were never signed by the respondent and they were sent back to the 'appellants unsigned. The perusal of Exh.D.5 amply shows that there is no reference/mention of letter dated 1-9-1986, (Exh.D.4) in letter dated 7-12- 1986 (Exh.D.5) so it cannot be said that Exh.D.5 was in response to Exh.D.4. Even if it be construed that Exh.D.5 was in token of the acceptance of Exh.D.4. Even then Exh.D.5 was written after more than 3 months. Furthermore, Exh.D.5 does not show that the counter-proposals contained in Exh.D.4, were accepted by the appellants. It is the case of both the parties that draft contracts were never signed by the respondent, thus, no written agreement was entered into between the parties. In the above perspective we are of the view that unless the terms, contained in letter dated 1-9-1986 (Exh.D.4), were unequivocally agreed to between the parties and absolutely accepted by the C appellants, no valid and legal contract, even oral, could have come into existence between the parties, as the acceptance must be absolute. According to section 7 of the Contract Act, in order to convert a proposal into a promise the acceptance may be absolute and unqualified. In this case after reading the contents of Exh.D.4, we are of the view that the said letter does not constitute an acceptance, because the same does not fulfil the requirement of section 7 of the Contract Act and the alleged. Acceptance was neither absolute nor unqualified. In order to constitute a valid contract there must be concensus-ad-idem between the parties, because if there is no unqualified acceptance of the proposal, it would be presumed that the parties are still undertaking the negotiations. In view of the above discussion, we are constrained to hold that Exh.D.4 does not constitute an absolute and unequivocal acceptance of the proposals made by the appellants vide letter Exh.D.3 and, thus, no concluded and binding contract ever came into existence between the parties. Non-signing of draft/contracts by the respondent lends support to our view that no final contract was entered into. The contention of the learned Deputy Attorney-General that an oral agreement came into existence is completely unfounded.
8. So far as the plea of the appellants, that on account of breach of contract, they suffered loss to the tune of Rs.8,69,000, thus, they were justified in deducting the said amount, has equally no force, primarily on the ground that as it has been noted above, that no valid contract was entered into between the parties, therefore, the question of breach of contract or the entitlement of damages by the appellants simply does not arise. Furthermore in case a party alleges breach of contract and wants to enforce a claim of damages/compensation, then established law is that such a party had to prove the existence of a concluded contract, breach of contract, such breach entitling the said party to damages and then the quantum of damages. Without proving all these necessary ingredients and having recourse to the Court of law, the appellants themselves deducted the suit amount thereby unilaterally calculating the amount of damages, allegedly suffered by them. It is an established principle that nobody can be judge of its own cause and the appellants, without proving the existence of a valid contract, breach of contract, the damages and then the quantum of damages, have themselves deducted the. Amount. In the present case the appellants produced only one witness (it is not discernible from the record as to whether D.W.-1 appeared as a witness or as a defendant), who simply stated that after the cancellation of the contract with the respondent, the contract was awarded to service industries, who supplied the goods at the rate of 57.50 each `Darri', thus, the appellants suffered a loss of Rs.8,69,000. We are of the view that the appellants failed to adduce any sufficient evidence to prove that actually they suffered any loss.
The appellants failed to produce any document on record to prove that actually the contract was subsequently given to the Service Industries, who supplied the requisite goods on a higher rate, mere bald assertion of sole witness in this regard would be of no avail to the appellants.
9. In the light of the arguments raised by the learned counsel for the parties, we have examined the impugned judgment with reference to the facts of the case and the law on the subject and find that the same is not open to exception. The learned Civil Judge has embarked upon every aspect of the case and passed a speaking judgment backed by reasons, thus, we are not inclined to interfere in the findings rendered by the learned trial Court, as such, findings of the learned Civil Judge on all the issues are hereby maintained.
' Upshot of the above discussion is that the present appeal is devoid of merits, thus, the same is dismissed, with no order as to costs.