ISLAMIC REPUBLIC OF PAKISTAN Versus LAHORE STEEL ROLLING MILLS LTD.
FALAK SHER, J.‑‑ This Regular First Appeal, impugning judgment and decree passed by learned Civil Judge 1st Class, Lahore on 20‑12‑1981, decreeing suit of the respondent for a sum of Rs.2,45,777.50 with costs and interest upto its realization, has emerged out of the following facts:‑
The respondent imported 998.500 metric tons of iron and steel scrap for the purpose of re‑rolling, from M/s. Echhardt & Co. Hamburg, West Germany, as per import invoice, dated 21‑9‑1976 (EXh.P.W.3/1) under Import Licence No. 504444 and letter of Credit No. 12/75, dated 8‑9‑1976, opened through National Bank of Pakistan, Lahore City Branch. The cargo was shipped to Pakistan through 'M.S. Saudi Fortune', against Bill of Lading No. 001, dated 21‑9‑1976 (Exh.P.W.2/1). The respondent vide letter, dated 11‑11‑1976 (Exh.P.W.2/2) requested the appellants' Chief Traffic Manager (Dry Port), Lahore for clearance of the goods at Dry Port Lahore. This letter was responded on 12‑11‑1976 (Exh.P.W.2/3) refusing to accept loose consignments for 'clearance and delivery', since it was neither packed in bundles nor was in a count o pieces and only gross weight had been shown; save under special arrangements subject to the conditions reproduced herein below:‑
"(i) That you will arrange permission from the Shipping Company for direct delivery of the consignment from the ship. In that case the wagons loaded with the cargo will be weighed on the Railway's weighbridge a in port area, and the Railway will be responsible or the weight so recorded, irrespective o the differenc e that may arise in the total weight so recorded and the weight given in the Bill o Lading.
(ii) In case direct delivery is not arranged and the cargo is landed on the ground, the Railway will not be responsible for Port Storage Charges incurred on the cargo for any reason whatsoever. However, efforts will be made to remove the cargo as early as is practicable. In this case delivery of the cargo may have to be taken after physical weightment by motor trucks at KPT Weighbridge. The wagons loaded with the cargo will be weighed on the Railway's Weighbridge as usual and the Railway will be responsible or the weight so recorded at latter point irrespective o the weight given in the shipping documents, or on the road weighbridge . You may depute a representative to ensure that all the cargo weighed at KPT Weighbridge is correctly loaded into wagons. Charges for extra handling will be borne by the Importer.
(iii) If direct delivery has been arranged, efforts will be made to supply empty stock, but if the cargo or a part of it is landed on the ground for any reason, all procedures and conditions mentioned in para, (ii) above will apply.
2. Subject to the abovementioned conditions, the normal Import procedure for Lahore Dry Port will apply.
3. The Importers acceptance of the above‑mentioned conditions may please be conveyed in writing so that appropriate instructions may be issued to the Assistant Traffic Manager, Lahore Dry Port and the District Controller o Stores, Dry Port, Karachi Bunder Karachi."
The respondent on the same day through Letter No.LSM/76/492, dated 12‑11‑1976 (Exh.P.W.2/4) conveyed their acceptance of the special conditions; as a consequence whereof the documents were accepted by the appellants.
3. The appellant took direct delivery of the cargo, from the ship, at the request of one Muhammad Ahmad, local representative of the respondent (because the ship had started discharging the cargo on the plinth, which could have attracted port charges, before it could be loaded in the wagons) upon signing for the full assignment as per manifest. The cargo, after weightment at the Railway Weighbridge, in Port area, was transported and delivered to the respondent at Lahore, Dry Port, weighing 900.189 metric tons, against shipped consignment of 998.500 metric tons as per shipping documents.
3‑A. It is pertinent to mention that Traffic Manager, Karachi Port Trust, vide out turn report, dated 6‑3‑1977 (Exh.P.I), informed the shipping agents, short landing of 15.500 tons of cargo; whereupon the respondent took up this matter with the appellant through letter, dated 23‑6‑1977, which was explained vide letter, dated 7‑9‑1977 (Exh.P.W.2/7) that there is no shortage because the original bill of lading was for 998.500 metric tons, while K . P. T . authorities erroneously took it as 'long tons' while preparing out turn report, which is equivalent to 983 tons. It may be mentioned that upon respondent's solicitation, the Assistant Traffic Manager, Karachi Port Trust vide letter, dated 31‑12‑1977, (Exh.P.2) informed 15.500 tons short landing of cargo.
4. The respondent called upon the appellants' Chief Traffic Manager, Lahore Dry Port, claiming compensation for short delivery to the tune of 82.81 metric tons of cargo and also asked to issue short lading certificate for the remaining 15.500 metric tons; upon failure, legal notice was served on 27‑10‑1977 (Exh.P.W.2/9) which was replied on 21‑11‑1977 vide Exh.P.W.2/10; and consequently, on 23‑1‑1978 the suit was filed, which was vehemently contested and out of the pleading of the parties two preliminary issues were framed:‑
(i) Whether the suit is bad for non‑joinder of necessary parties.
(ii) Whether this Court had no territorial jurisdiction to try this suit.
Both the issues were decided against the appellant, thereafter, following issues were framed:
(1) Whether the plaintiff is entitled to recover a sum of Rs.2,45,777.50 on account of short delivery and negligence from defendant?
(2) Whether the suit is not maintainabe in its present form?
(3) Whether the suit is barred by the principal of estoppel?
(4) Whether the plaintiff is estopped from challenging the matter as contained in the preliminary objection No.4?
(5) Whether the suit is hit by the principle of waiver acquiescence?
(6) Whether the suit is liable to be dismissed in view of preliminary objection No. 7?
(7) Whether the plaintiff has not come to the Court with clean hands? If so, with what effect?
(8) Whether the plaintiff has no cause of action?
(9) Whether the suit has been filed against a wrong party? If so, with what effect?
(10) Whether the suit is vexatious, frivolous and baseless? If so, with what effect?
(11) Relief.
5. The appellant's evidence comprised of Mohammad Tahir, Traffic Inspector P.W.1, proving delivery by the District Controller of Stores, Lahore Dry Port and stated that 519 tons of cargo was loaded directly in the wagons, while 464 tons was lifted from the plinth, he also produced EXh.P.l, the final out turn report and certificate Exh.P.2 issued by K.P.T. as to short weightment of 15.500 metrict tons. P.W.2 Shafi‑ul‑Hassan, Head Clerk, C.T.M. Dry Port Headquarters, Lahore, who inter alia, produced Exh.P.W.2/1, letter, dated 11‑11‑1976, Exh.P.W.2/2 letter, dated 12‑11‑1976 from C.T.M. and Exh.P.W.2/3 letter from respondent.
Whereas respondent's evidence comprised of Abdullah, Assistant Traffic Manager, K.P.T. D.W.1, who confirmed part of direct delivery in wagons and part from the plinth and testified that the cargo was not weighed at K.P.T. weighbridge, but was delivered as 'said to weigh' it was not actually weighed, and that the appellant took delivery on that basis. D.W.2 was Mohammad Kadeer, Traffic Inspector K.P.T. who deposed that delivery was given without weighment. D.W. 3 M.A. Habib, retired District Controller of Stores, Karachi, deposed that delivery was accepted on 'said to weigh' basis as the K.P.T. weighbridge is capable of weighing trucks only. He further stated that Mohammad Ahmad, was local representative of respondent who remained present throughout the whole transaction. D.W.4 and D.W.5, Abrar Hussain and Sakhawat Hussain respectively were formal witnesses. Muhammad Ismail D.W.
6. District Controller of Stores of Pakistan Railway's Karachi, in his testimony, inter alia, deposed that Muhammad Ahmad was the representative of the respondent. He also stated that part of the cargo was received in wagons as direct delivery, and part from the plinth, and was weighed at Railway Weighbridge. Bashir Ahmad, C.A. Commercial Assistant Pakistan Railways, Lahore, D.W. 7, produced receipts EXhS.D.W.l to Exh.D.W.7, and lastly Managing Director of respondent, appeared as P.W.3 in rebuttal and supported the plaint.
6. The learned Civil Judge decided issue No. 1 in favour of the respondent, in the light whereof issues 2 to 10 were decided against the appellant and the suit was accordingly decreed vide judgment and decree, dated 20‑12‑1981.
7. The learned counsel for the appellant contended that 'clearance and delivery' of the consignment was accepted, subject to the conditions, specifically stipulated in letter, dated 12‑11‑1976 (Ex.P.W.2/3), which were explicitly accepted in writing, by the respondent, both in letter and spirit in its entirety, vide letter of the same date (Exh.P.W.2/4) without any reservation which reads as under:‑
"Reference your Letter No. 71‑LDP/Import/Iron & Scrap/HQ, dated 12‑11‑1976, please note that the terms and conditions laid down therein are accepted to us. Please advise the concerned authorities to accept the subject documents."
8. It was argued that the pivot of the contractual relationship, was embodied in Exh.P.W.2/3, according to which appellant's liability was exclusively restricted to the weight of the cargo; recorded at the Railway bridge in port area, irrespective of any weighment mentioned in the manifest, shipping documents or weighed elsewhere; and, admittedly, the weighment recorded at the appellant's weighbridge in port area, was correctly delivered to the respondent at Lahore Dry Port
9. It was further submitted that receipt issued to the shipping agent for full consignment as per manifest in the shipping documents and 'said to weigh', is a standard/normal clearance procedure and was subject to the overriding special covenant enshrined in Exh . P. W . 2 / 3 , with particularly clause (2) thereof.
10. With a view to reconciling Exh.P.2 and Exh.P.W.2/7, it was submitted that the consignment was never weighed at K.P.T. weighbridge, the short weight conveyed by the Karachi Port Trust authorities, as 15.500 metric tons was in fact not a shortage, the ambiguity was created on account of reference to two different measuring standards viz. metric tons and long tons, for which Exh.P.W.2/7 gave the requisite explanation; and it never meant that the appellant had actually received full consignment by weighment; and issuance thereof was necessary precondition for accepting delivery of the cargo.
11. On the other hand, the learned counsel for the respondent submitted that the appellant had dual capacity, viz. one as a clearing agent and the second as a carrier; Exh.P.W.2/3 only pertains to the later capacity, which is of no avail in the former; specially when the appellant signed for full consignment that Mohammad Ahmad was not their representative; they were not 'informed by the appellant in time as to the arrival of the ship; and lastly under section 210 of the Contract appellant is liable to compensate the respondent for their negligence.
12. We have considered the arguments advanced by the learned counsel for the parties, have also gone through the evidence, and, are of the opinion that the parties had contracted to regulate their contractual relationship both for clearance as well as delivery of the consignment within the framework of the special conditions stipulated in Exh.P.W.2/3; and pursuance to the covenants the appellant was exclusively responsible, both for the purposes of the clearance as well as delivery, for the weighment of the cargo, recorded at its weighbridge, in port area, irrespective of the load stated in the manifest or shipping documents or weighed at weighbridge of Karachi Port Trust, signing of the formal receipt for full consignment on the terms of the shipping documents (Exh.P.W.2/7), was a standard, shippers precondition for permitting direct delivery on 'said to weigh' basis and did not represent actual weighment.
Independent of the above, no negligence on the part of the appellant has been established by the respondent.
13. In view of the above findings, this appeal is accepted, the impugned judgment and decree are set aside and the respondent's suit is dismissed. However, the parties are left to bear their own costs.
M.Y.H./I‑47/L Appeal accepted.