AZIZULLAH SHEIKH and another vs STANDARD CHARTERED BANK LTD.

' MIAN HAMID FAROOQ, J.--- Petitioners seek leave to appeal against judgment dated 22-3-2007, whereby the learned Division Bench of the High Court of Sindh at Karachi dismissed their appeal (Special High Court Appeal No,92 of 2006).

2. Facts of the case, the brief, are that the petitioners/plaintiffs filed suit (Suit No,B-55 of 2002) for recovery of damages of Rs,100 millions with interest and costs under section 9(1). Of Financial Institutions ,(Recovery of Finances) Ordinance, 2001, before the High Court of Sindh at Karachi, against the respondent, inter alia, pleading that they opened US $ account with American Express Bank; they obtained American Express Credit Card; the business of American Express Credit Card was transferred to the respondent-Bank; fresh American Express Gold Cards were issued by the respondent-Bank to the petitioners, which were valid from 26-4-2002 to 26-4-2005; in the year, 2002 the petitioners intended to go abroad during summer vacations; at that time more than US $ 7000 were available in the account of the petitioners with American Express Bank; on personal visit of petitioner No,1, Raza Hussain Bandeali, Director Operation, American Express Bank, assured that the said Cards are active and valid for payment to the extent of US $ 5000; during petitioner's visit abroad the Cards were not accepted by Hotel at Sydney; American Express Bank, Sydney informed that the Cards could not be accepted; thereafter the petitioners presented the Cards on different places, but those were not accepted and thus they were insulted, disgraced and humiliated; they served legal notices to the respondent, but with no result, which necessitated filing of the suit. It was the case of the petitioners that since the respondent committed breach of contract, therefore, they are entitled for the claimed damages.

3. Application under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 seeking leave to defend filed by the respondent/defendant was allowed and it was treated as written statement in accordance with law. It was, inter alia, asserted that the petitioners only contacted American Express Bank, they never approached the respondent Customer Service and that the Card was not a "credit Card" but a "charge Card" and it was deactivated on account of non-payment of renewal fee in time. Out of the pleadings of the parties, following issues were framed:---

(i) What damages are claimed by the plaintiffs?

(ii) Whether the defendant is liable for the alleged damages?

(iii) Relief.

' In order to prove the said issues, the petitioner No,1 appeared as his own witness and also examined Raza Hussain Bandeali of American Express Bank as P.W.2. The petitioners produced certain documents, which were duly exhibited and admitted in evidence. The respondent-Bank examined three witnesses namely Rafi Muhammad Khan (D.W.1), Umer Qureshi (D.W.2) and Asif Iqbal (D.W.3). The learned single Judge after giving his findings on both the issues decreed petitioners' suit in the sum of US $ 175 or equivalent amount in Pak Rupee together with interest at 10% from June, 2002, vide judgment and decree dated 10-3-2006. Petitioners' appeal was dismissed by the learned Division Bench of the High Court of Sindh at Karachi, vide judgment and decree dated 22-3-2007, hence the present petition.

4. Learned counsel for the petitioners has contended that the learned High Court (single Bench and Division Bench) completely ignored the evidence on record and did not appreciate it in its true perspective; the petitioners proved the breach of contract and thus they were entitled to the damages claimed in the suit. He has added that even if the petitioners were not able to establish the quantum of damages, the Courts should have satisfactorily compensated the petitioners by awarding damages. He has relied upon an unreported judgment dated 3-7-2008 of this Court passed in "Gohar Ali v. Sher Zaman Khattak Civil Appeals Nos.2763 and 2764 of 2001".

5. We have heard the learned Advocate-on-Record for a considerable length and perused the available record. The learned single Judge, while deciding issue No,2, has held, in para.19 of the judgment, that "as the breach of contract is established, plaintiffs are entitled to recovery of amount paid by them to the defendant for availing the facility. The issues are answered accordingly", which findings were not challenged by the respondent through appeal. Therefore, the findings qua breach of contract have attained finality. In view whereof, the learned counsel for the petitioners is right in submitting that the petitioners have been able to prove breach of contract but that is not enough to award claimed damages to the petitioners. Undoubtedly, the petitioners filed the suit claiming damages while relying on the provisions of section 73 of the Contract Act. Under section 73 of the Contract Act, the party claiming damages has to firstly plead and then prove by sufficient, trustworthy, independent and cogent evidence that the concluded agreement existed between the parties, the other party committed breach of contract, such breach entitles the first party to damages and the foremost factor is quantum of damages. This Court in the case reported as Ahmed Saeed Kirmani v. Muslim Commercial Bank Ltd. 1993 SCM R 441, has inter alia held "that a party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of damages. The onus is on the plaintiff and without discharging it B he cannot succeed. Section 73 of the Contract Act prescribes the rule for assessing the damages suffered due to breach of contract." In this context, the case reported as Islamic Republic of Pakistan v. Sh. Nawab Din PLJ 2002 Lah. 1998 can also be referred to. The learned single Judge in paras.13 and 15 of the judgment had discussed the principles for ascertaining the quantum of general and special damages. It appears appropriate to reproduce paragraphs 13 and 15 of the said judgment of learned single Judge, which has really clinched the matter:--- ' "Principle for ascertaining the quantum of general and special damages is laid down in the leading case of Hadly v. Baxendale (1854) 9 Exch. 341 which clearly provides the distinction between the two. The provisions of section 73 of the Contract Act, 1872 are not much different for purpose of practical application. Claim for damages was rejected as being too remote in the case of Banco de Portugal v. Water low and Sons Ltd. (1932) A.C. 452 and again in the case of Commell Lairds and Co. v. Managanese Bronze and Blass Co. (1.993)2 KB 141. General damages naturally arising according to the usual course C of things from the breach of contract are recoverable in the ordinary circumstances. Special damages are awarded in cases, as may reasonably, be supposed to have been in contemplation of both parties at the time of contract. The law does not record consequential damages arising of delay in respect of money as one in the case of Graham v.

Campbell. (1877) 7 Ch. D. 494 and Urquhart Lindsay and Co. v. Eastern Bank Ltd. (1992) 1 K.B.

318. Same view has been taken by Honourable Supreme Court of Pakistan in the case of Syed Ahmad Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd. 1993 SCM R 441.

(15) As regards the humiliation and mental agony suffered due to refusal of payment on said cards, the plaintiff No, in his evidence has stated that they used the said cards first at Bangkok Airport where it was said that the facility on the said cards was not available. After the card was not in operation, the plaintiffs themselves presented the card at different knowing fully well that it is not activated and the refusal was likely, therefore, humiliation, as claimed of his reputation was only, a consequence of the deliberate act of the plaintiffs. Had the plaintiffs been more cautious, they may not have used the said cards after refusal once or the second time but it appears that they continued to present the same wherever they visited despite the fact that they paid through alternate means and completed their trip as planned but with financial constraints."

6. While keeping the above principles in view, now we come to the present case. The petitioners did not produce any evidence to show that in fact they suffered any loss due to breach of contract.

Solitary statement of petitioner No,1 is not sufficient to decree the colossal suit amount, as P.W.2 did not state anything about the damages. Besides the reasons advanced by the learned High Court (single Bench and Division Bench) for declining the total claim of the petitioners, we may add here that the petitioners through production of evidence comprehensively failed to prove that due to breach of contract they are in fact entitled to damages and to what extent, which are sine qua non for the grant of damages under section 73 of the Contract Act. Thus we are clear in our mind that the petitioners could not prove that they suffered any loss. They also failed to prove, through production of evidence on record, that they were entitled for decree of the total amount claimed in the suit.

7. As regards the unreported judgment relied upon by learned counsel, wherein it has inter alia been held by this Court that "it is discretion of the Judge who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage". Suffice it to say that in this case, the learned single Judge in exercise of his discretion awarded damages of US $ 175 to the petitioners and thus it appears that the conscience of both the Courts was satisfied that the awarded damages would compensate the aggrieved party. We are not persuaded to interfere in the exercise of discretion by the two Courts.

7-A. Fit the above perspective; we have examined the impugned judgment and find that it does not suffer from any illegality. Both the Courts concurrently held that the petitioners are entitled for damages only to US $ 175. Learned counsel for the petitioners has not been able to point out any misreading or non-reading of any piece of evidence on record. The impugned judgment does not require any interference by this Court. No case for leave to appeal is made out.

8. For the foregoing reasons, the present petition, being devoid of merits, stands dismissed and leave to appeal is refused.