NAWAB BROTHERS LIMITED Versus HAND TOOLS LIMITED

1. The plaintiff had entered into a contract with the defendant for carrying out construction work on Plot No.l, Sector No.17, Korangi Industrial Area, Karachi. It is the case of the plaintiff that he completed the construction work strictly in accordance with the specifications, drawings, terms of contract and on the directions of the defendant's consultant M/s. Akbar and Aleem. The work was done to the entire satisfaction of the defendants as well as their consultant. The final bill was submitted on 16‑5‑1974, and the same was duly verified by the defendant's consultant. Thereafter, the defendant requested the plaintiff to carry out some additional work. The plaintiff was reluctant to do so, but on the insistence of the consultant and common friend Mr. Ameer Ali Fancy, the plaintiff undertook the additional work and completed the same in accordance with the specifications. But the defendant did not pay the bill submitted by the plaintiff. Consequently the present suit was filed for the recovery of amount of Rs.60,865 only together with 10% per annum interest thereon from the date of filing of the suit. '

2. Defendant filed written statement whereby the main contention had been that the plaintiff had not carried out the work in accordance with the terms of the contract and to the satisfaction of the defendant. Finally the defendant submitted that they were not liable to pay the amount in dispute to the plaintiff.

3. On the pleadings of the parties following consent issues were framed:‑‑

(1) Whether the plaintiffs had satisfactorily completed construction of the main factory building of the defendants and hended it over, to the defendants in April 1973?

(2) Whether the plaintiffs were given by the defendants additional work for construction of meter room etc. on agreed terms and conditions claimed by the plaintiffs?

(3) Whether the Consulting Architect's report, dated 7th May, 1976 is void and not binding on the defendants?

(4) Whether the plaintiffs are entitled to receive from the defendants the sum of Rs.60,866.08 against their fourth and final bill duly certified by the Consulting Architects?

(5) What should the decree be in this suit?

(6) Whether the suit is misconceived and not maintainable in law?

(7) Whether the plaintiffs have constructed the factory building according to specifications, drawings and other terms and conditions of the contract?

4. The case was fixed for evidence on 9‑9‑1992, on that date plaintiff and his counsel were present but no one was present from the defendants side. Accordingly Court motion notices were sent to the defendant and his counsel and .the matter was adjourned to 28‑9‑1992, the plaintiff and his Advocate were present but the defendants and their Advocate remained absent. Hence the learned Judge ordered that the suit may proceed ex parte as against the defendants. The plaintiff was also directed to file additional affidavit in evidence to specifically meet the pleas taken up by the, defendants in the written statement.

5. I have heard learned counsel for the plaintiff and has also perused the affidavit in evidence together with the additional affidavit‑in‑evidence filed by the plaintiff. The plaintiff has filed documentary evidence Annexures A, A/1, B, B/1, C, C/1 & F in order to support his claim against the defendants. Obviously the facts are admitted by the parties. The only dispute between the parties is that according to the defendants plaintiff had not carried out the work in accordance with the specifications and to the satisfaction of the defendants. But it is on record that even the Consulting Architects of the defendant firm had verified the claim of the plaintiff to be correct. Evidence on record indicates that the defendants had unnecessarily avoided to pay the final bill submitted by the plaintiff. The conduct of the defendants in not contesting the present suit carries adverse presumption against him. There is no rebuttal, as such I am satisfied about the genuineness of the plainitff's claim on the basis of the documentary evidence filed alongwith the affidavit‑in‑evidence. The result is that the plaintiff's suit is hereby decreed against the defendants who are directed to pay a sum of Rs.60,865 only to the. plaintiff together with 10% per annum interest thereon from the date of filing of this suit till final payment is made to the plaintiff. The cost of the suit is to be borne out by the defendants.

6. These are the reasons of the short order dated 11‑2‑1993.

7. H.B.T./N‑509/K Suit decreed.