S. M. ABDULLAH & SONS Versus BUREWALA TEXTILE MILLS Ltd.

1. This is a suit for the recovery of Rs.1,42,433.56 as damages.

2. 2.The case of the plaintiff in brief is that on 21‑9‑1970 they entered into a contract at Karachi with Defendant No.1 through their Commission Agent M/s. General Agencies of Multan, whereby defendant No.1 agreed to sc11 and the plaintiff agreed to purchase 2,000 bales of full pressed raw cotton A.C. 134 SG at the rate of Rs.112/‑ net F.O.R. Multan. The delivery was to be effected in November, 1970. By telegrams dated 21‑9‑1970 and 22‑9‑1970 M/s. General Agencies of Multan confirmed the contract, rate and delivery period. The transaction was also confirmed in the letter of M/s. General Agencies of Multan addressed to Defendant No.1 dated 30‑9‑1970. In November, 1970, however, the defendant No.1 and their said Commission Agent asked the plaintiff to see their Managing Director Mr. Suleman Dawood at Karachi. Mr.Fazalur Rehman, a partner of the Plaintiffs firm alongwith Mr. Mohammad Hussain of M/s. General Agencies met Mr.Suleman Dawood on 4‑11‑1970 and he was asked to take delivery of 1,000 bales of cotton each in the account of defendant No.1 from the factory of M/s. Muhammad Amin Muhammad Bashir Ltd., Khanewal and Zafar Cotton Ginners, Multan. However, only M/s. Zafar Cotton Ginners supplied 400 bales of cotton to the Plaintiffs against payment at the rate of Rs.113.50 per maund. The defendant No.1 failed/refused to supply the remaining 1,600 bales of cotton by the end of November, 1970. Tnerefore, in plaintiffs filed this suit for the recovery of the amount being the difference of the contract price and the price of the cotton on 30th November, 1970 as damages for breach of the said contract. He also claims interest at the rate of 9% from the date of the suit and cost of the suit.

3. Defendant No.2 has been joined as a party because of the plea of defendant No.1 that the plaintiffs should take delivery of 1,600 bales of cotton from Defendant No.2, but no relief is claimed against the defendant No.2.

4. The case of defendant No.1 is total denial of the claim and averments of the plaintiffs. )t is denied that any contract was entered into between the plaintiffs and the defendant No.1, or that any breach of contract was committed by the defendant No.1. The Defendant No.1 also raised the legal objections that this Court has no jurisdiction, as neither the defendant No.1's Registered Office was located, nor the contract was entered into, nor the delivery was taken within the territorial jurisdiction of this Court and that the suit was bad for non‑joinder of necessary party viz. M/s. General Agencies of Multan. No written statement was filed by the Defendant No.2.

5. On the pleadings of the parties the Court settled the following issues:‑

(1) Whether this Hon'ble Court has jurisdiction to entertain the suit?

(2) Whether the suit is bad for non‑joinder of M/s. General Agencies of Multan?

(3) Whether on 21‑9‑1970 the plaintiffs entered into contract with defendant No.1 through their Commission Agents M/s. General ,Agencies of Multan for the purchase of 2,000 bales of cotton of quality A C 134 S.G. at Rs.112.60 per maund?

(4) Whether the defendant No.1 agreed that the contracted cotton was to be supplied from the factory of Thai Cotton Industries, Multan?

(5) Whether telegrams dated 21‑9‑197() and 22‑9‑1970, and letter dated 30‑9‑1970, by M/s. General Agencies of Multan were written in the capacity of a Commission Agent of Defendant No.1?

(6) Whether Defendant No.1 through their Managing Director agreed to deliver the contracted cotton through M/s. Mohammad Amin Mohammad Bashir Ltd. and Zaffar Cotton Ginners, Multan and undertook to reimburse or pay the difference in prices overpaid by the plaintiffs to the said parties at the final settlement of their contract with the Plaintiffs?

(7) Whether M/s. General Agencies wrote the letter dated 6‑11‑1970 and endorsed a copy thereof to the plaintiffs. If so, what is the effect of the letter?

(8) Whether defendant No.1 refused to deliver 600 bales of cotton and on the directions of M/s. General Agencies, Multan. If so, what is the effect?

(9) Whether Mls. Mohammad Amin Mohammad Bashir Ltd. refused to deliver cotton on the instructions of defendant No.1?

(10) Whether defendant No.2 had to give delivery to the Plaintiffs on behalf of M/s.General Agencies as alleged in para.10 of the written statement?

(11) Whether the defendant No.2 offered to the plaintiff delivery of 1,600 bales of cotton?

(12) Whether Defendant No.2 refused the delivery of the said bales in collusion with the plaintiffs?

(13) Whether plaintiffs committed any breach of contract?

(14) What damages, if any, the plaintiffs have suffered?

(15) Reliefs?

6. My findings for the reasons recorded are as under:‑

3. ISSUES NOS.3 to 8 .

4. These issues are interring connected, therefore, I will deal with them together. The main question that requires decision by the Court is whether there was any contract between the plaintiffs and defendant No.1, as alleged in the plaint. It may be pointed, that admittedly this contract was not reduced m writing. There is only oral evidence of Mr.Faialur Rehman, who is partner of the plaintiffs firm. fie states that in September, 1970 at Karachi he entered into a contract with the Defendant No.1 for the purchase of 2,000 bales of cotton AC 134 at the rate of Rs.112/‑ per maund F.O.R. Multan .for delivery in November, 1970 through their Commission Agents namely Mr. Mohammad Hussain of M/s. General Agencies of Multan. He further states, that as a confirmation of the. said contract Mohammad Hussain addressed two telegrams, which are produced as C‑11 and C‑12 to the plaint and bear Exs.No.10/1 and 10/2. He also stated that Mohammad Hussain wrote letter Fx.10/3 addressed to the defendant No.1 confirming the said transaction and according to this letter the source of bales to be supplied was M/s. Thai Cotton Industries Multan. He further states, that on failure to get the delivery, he visited hlr.Sulcman Dawood in Dawood Centre on 4‑11‑1970 and told him that M /s. Thal Cotton industries had refused to suppi4 the cotton under the agreement and N1r.Suicman Dawood told him to get the cotton under the agreement from alternate sources i.e. 1,000 bales from M/s.Mohammad Amin Muhammad Bashir of Khanuwal and supply 400 bales from M/s.Zafar Cotton Ginners, Multan. He further states that Mohammad Hussain was present in the meeting. He states to have contacted h1/s.Mohammad Amin Mohammad Bashir, who told him that they have not received such instructions from Defendant No.1 and therefore, refused to supply the cotton bales. However, M/s.Zafar Cotton Ginners confirmed the receipt of instructions to supply 400 bales of cotton and then informed him that they have received instructions not to supply the balance quantity. He states, that lie again approached Suleman Dawood in Karachi, who told him that the balance quantity would be supplied by the defendant No.2, but when he contacted defendant No.2, they refused to deliver the goods on the ground that they had no contract with defendant No.1. He further states that he again contacted Mr.Suleman Dawood, who told him that he will make alternate arrangements, but ultimately the remaining cotton bales were not supplied.

7. Mr. Mohammad Hussain Proprietor General Agencies through out this transaction took place, has been examined on commission. He states that generally acts as Commission Agent for defendant No.1 and that Seth suleman was Director of the Defendant No.1 and resides at Karachi. He further states that he also used to purchase cotton for the plaintiffs. He admits that he entered into an oral agreement with plaintiff for the sale of cotton in the cotton season l970-71. He further states, that Seth Suleman of defendant No.1 had refused to sell cotton to the plaintiffs. He admits to hive sent telegrams C‑11 and C‑12 to the plaintiffs and also to have issued letters Exs.C‑13, C‑10 and C‑14. He admits that the price of cotton was fixed at Rs.112 per maund and that 400 bales of cotton were supplied to the plaintiffs. However, in cross‑examination he has stated, that he had entered into a contract with the plaintiffs and that he had purchased 400 bales of cotton from Defendant No.1 in his own account and then sold them to the plaintiffs.

8. It may be pointed that this witness has business dealings with both the parties and therefore, appears to be cautious not to lose any one of his customers. Apparently the defendant No.1 is a bigger customer and more precious to this witness. His evidence, therefore, cannot be taken on its face value, but would have to be judged in the light of admitted facts and other evidence on record. From his evidence at least it is clear that he entered into an agreement of supply of 2,000 bales of cotton to the plaintiffs, though he does not specifically admit that he entered into this contract on behalf of defendant No.1. From his evidence it is also clear, that out of this contracted quantity, only 400 bales were supplied to the plaintiff and that the agreed rate of cotton bale was Rs.112 per maund. He admits certain documents, which have been produced by him. He admits to have produced two telegrams C‑11 and C‑12 before the Commissioner which have been exhibited as Exs.10/1 and 10/2. These documents are addressed to SMASONS Karachi and are sent by SWERA. Admittedly SMASONS, Karachi is the telegraphic address of the plaintiffs, whereas the SWERA is the telegraphic address of M/s. General Agencies of Multan. Ex.10/1 reads, "purchased 2,000 bales AC SGD Thai Cotton Account Dawood Sellers confirmation posting shortly". Ex.10/2 reads "Continuation yesterday's telegram. November delivery purchased at 112". In confirmation of these two telegrams this witness states to have sent a letter of confirmation which is produced as C‑13 which is Ex.10/3. This letter dated 30‑9‑1970 is addressed to Seth Sulcman Dawood Sahib'. The relevant part is reproduced as under:‑

5. "As per your kind instructions on telephone, I confirm having sold 2,000 bales AC SGD purchased in your A/C from 1VI/s. Thal Cotton Industries, Multan at Rs.108 per md have been resold to M/s. S. M. Abdullah and Sons, Karachi at Rs.112/‑ per md. including transportation fee."

6. This letter has been sent by Mohammad Hussain on the letter head of "General Agencies". Another letter C‑10 dated 6‑11‑1970 is addressed by this Mohammad Hussain to M/s. Zafar Cotton Ginners, Multan, a copy of which has been addressed to Seth Suleman Dawood as well as a copy to the plaintiffs. The relevant part of this letter is also reproduced as under:‑

7. "Reference your cotton bales sale to M/s. Burewala Textile Mills Burewala, please deliver 1,000 bales out of the total purchases to M/s. S.M. Abdullah and Sons, Karachi at the contracted rate against 100% payment."

8. The other documcrit produced by the witness is C‑14 which appears to be confirmation of telegram sent by M/s. General Agencies to YARNSUP KARACHI. The copy of this telegram was sent for confirmation to M/s.Dawood Corporation Ltd. Karachi and also to the plaintiffs.

9. The first four documents referred to above leave no doubt that this witness had entered into contract with the plaintiff on behalf of defendant No.1.

10. Seth Suleman Dawood appears to be the main figure in this contract.

9. This Seth Suleman Dawood also appears to be a member of famous Dawood Family and defendant No.1 also appears to be a Company either owned by them or contracted by them. The plaintiff has sired that this Seth Suleman Dawood was the Managing Director of Defendant No.1 and this averment of his is not challenged in the cross‑examination.

11. Muhammad Hussain has stated that Seth Suleman Dawood is Director of Defendant No.1 and he purchases and sells Cotton on behalf of Defendant No.1. Again this statement of the witness is not challenged in the cross -examination.

10. The defendants have examined Abdul Aziz, as employee of Defendant No.1. He states that during 1970 Cotton Season Seth Sulcman Dawood of their Company had rung him from Karachi and told him to ask Defendant No.2 to deliver 2;000 bales of cotton to the Plaintiffs firm. In the cross‑examination he states that Seth Seuleman Dawood is not even Director, but has again clarified that he is only aware of the Resident Director of their Company at Dawoodabad, who is also son of Seth Suleman Dawood. The Defendant No.1 have not produced any documentary evidence, as to who their Directors arc and whether Mr.Suleman Dawood is not Director of Defendant No.1.

11. In view of all this evidence, there appears to be no doubt that Seth Suleman Dawood was acting on behalf of Defendant No.1 in this transaction. The fact that Abdul Aziz got instructions from Seth Suleman Dawood to direct Defendant No.2 to deliver 2,000 cotton bales to the plaintiffs also supports the claim of the plaintiffs with regard to the contract.

12. There is another piece of evidence which also requires consideration. Admittedly 400 bales of cotton out of the contract quantity of bales were supplied to the defendant by M/s. Zaffar Cotton Ginners.

13. Muhammad Rafiq, Manager, of M/s. Zaffar Cotton Ginners has been examined. He states that m the cotton season of 1970‑71 they had entered into a contract/agreement with Burewala Textile Mills Ltd. and in execution of this contract, they supplied 400 cotton bales to the Plaintiffs. He has produced the letter Ex.C‑9 addressed to Defendant No.1 by M/s.Zaffar Cotton Ginners and according to him it is signed by their partner Mr.S.M.Younus. This letter is addressed to the Defendant No.1 and his address is shown as D:iwoodabad, Karachi. It is regarding delivery of 1,000 bales to M/s.Abdullah and Sons" N Karachi, from their purchases. The relevant part of this letter is also reproduced as under:‑

14. "We hereby acknowledge your telephonic instructions to our Mian Muhammad Younis for the delivery of 1,000 B/S out of your contract at the compensated rate of Rs.113/‑ p. md. Now today we have received a message from Mr.Muhammad Hussain of General Agencies, Multam to stop the delivery of M/s. S. M. Abdullah & Sons out of your contract. So our Mian Muhammad Younas discussed with Seth Suleman Sahib in regards and followed the instructions, also stopped the delivery, but upto your first instructions we have already delivered 400 B/S to M/s. S.M.Abdullah and Sons out of 1,000 B/S. Please note. According to your instructions we have intimated our office to depute the representative for the delivery of the balance of contract."

15. In his cross‑examination he states that Mr. Suleman Dawood, Managing Director of Defendant No.1 had given instructions on telephone from Karachi to deliver 1,000 bales of cotton to the plaintiffs. It is not suggested to him in cross examination that they did not send the letter Ex.C‑9 or that it was not received by the defendant No.1.

16. In this context it would be relevant to refer to the evidence of P.W. Muhammad Rafique of M/s.Zaffar Cotton Ginncrs. He states that he had received telephonic message from Seth Suleman Dawood, Managing Director of Defendant No.1 to deliver 1,000 bales of cotton to the plaintiff. No doubt Younis, who had actually received this telephonic message has not been examined but this fact is mentioned in the letter C‑9 which is exhibited a, Ex.10/4. which is addressed to Defendant No.1. There is no evidence to show that this letter was not received by Defendant No.1 or that this letter was replied refuting tile allegations therein. The name of dcl'enciant No.1 is also specifically mentioned in letter C‑10.

17. There are certain telegrams and letters on the record exchanged between SMASONS Karachi and YARNSUP Karachi. Admittedly SNIASONS is tile telegraphic address of the plaintiff. P.W. Mullanimad Hussain hit titled that ARNSUP is the telegraphic address of M/s. Dawood Corporation. The letter Ex.10/6 which is produced by the defendant in the cross‑examination of P.W. Fazalur Rehman is on the letter head of Burewala Text Mill Ltd. vv. Defendant No. 1. This is in confirmation of the telegram which has been produced as Ex.8 through P.W. Muhammad Moosa of Telegraphic Office. This telegram is sent by YARNSUP and is in reply to the telegram sent by the plaintiff s copy of which has been produced as Ex.10/5. This telegram is from the plaintiffs to YARNSUP. This document clearly indicates that either YARNSUP is the telegraphic address of Defendant No.1 or communications sent on this address are received by the Defer lant No.1. D.W Abdul Aziz has not specifically denied that YARNSUP is not the it telegraphic address, but he has given evasive reply that he does not know of which company is this telegraphic name. Be that as it may Ex.10/6 and Ex.8 read as under:‑

18. Ex.10/6 and Ex.8.

"SMASONS KARACHI

19. We deny the allegations of your telegram dated twentieth November and reiterate the contents of our telegram-dated twenty‑sixth November. YARNSUP."

20. Telegram dated 28th November referred to in this letter has also been produced as Ex.9 which reads as under:‑

21. "SMASONS KARACHI.

22. Refer your telegram twenty‑fourth. All allegations arc denied. Please take delivery of remaining one thousand six hundred bales cotton from Kausar Oil and General Mills Multan as already agreed and confirmed by you vide your letter No.SAS/CS/PT‑P‑1/98 dated twentieth November, YARNSUP."

23. This Ex.9 clearly supports the evidence of P.W. Fazalur Rehman that they received only 400 bales of cotton out of contracted quality of 2000 bales of Cotton and that Seth Suleman Dawood told him that tire balance quantity would supplied by M/s. Kausar Oil and General Mills Multan.

24. It is suggested in the cross‑examination of Fazalur Rehman that M/s. General Agencies of Multan were not brokers, but were cotton merchants themselves, and that they do not let as agent of tire Defendant No.1 which suggestion is of course denied by the plaintiffs witness. However, D.W. Abdul Aziz has himself admitted in the cross‑examination that there were dealings between their Company and Muhammad Hussain of M/s. General Agencies from about 1960 to about 1971 or 1972 and that M/s. General Agencies have acted as Commission Agents in certain dealings with their Company.

25. It may be pointed that the contract in tltics1ion pertains to the period of 1971). It will be seen that Seth Sideman Dawood is it main figure iii this case. As already pointed some witnesses have described him its Managing Director of Defendant No I. Even D.W. Abdul Aziz has described seth suleman Dawood to be of their Company, though subsequently he has stated that Seth Stilcman Dawood was neither Chairman, nor Managing Director nor Director of Defendant No.1. But he has further stated that he did not know who were Directors of the Company. As already pointed most of the correspondence is addressed to Seth Suleman Dawood. Seth Suleman dawood undoubtedly appears to be a person of authority, who conducts business for defendant No.1 He has chosen not to examine himself to rebut the evidence of the Plaintiffs' witnesses as described above and its presumption would not have to be drawn that had Seth Suleman Dawood bee examined, he would not have supported the case of Defendant No.1.

26. Keeping all the oral as well as documentary evidence discussed above, there appears to be not even an iota of doubt that the contract as alleged by the plaintiff was entered into between the plaintiff and the Defendant No.1 through Muhamad Hussain of M /s General Agencies. The mere fact that this contract was not reduced in writing in the regular form . Would not detract from tire legality of the contract There is enough documentary evidence to show the existence of such a contract.

27. My finding is, therefore in affirmative on issue No.3.

28. The evidence of Fazalur Rehman that it has agreed that the contracted quantity would be supplied by That Cotton industries Multan has gone unrebutted and unchallenged. The telegram Ex.10/1 which has already been referred to above. Sent by the General Agencies, in the plaintiff confirming the contract mentions "That Cotton Account Dawood Sellers"

29. My finding, therefore, in view of my finding on Issue No.3, is in affirmative on Issue No.4 also.

30. I have already held that hl/s.GLneral Agencies acted as Commission Agents of Defendant No.1 and admittedly telegrams Exs.l0/1 and 10/2 and letter Ex.10/3 were sent by them.

31. My finding is, therefore, in affirmative on Issue No.5.

32. The evidence of plaintiff's witnesses its already discussed above, Show that the said Seth Suleman Dawood Managing Director of Defendant No.--- agreed to deliver the contracted cotton through M/s. Muhammad Amin and Muhammad Bashir Ltd. and M/s. Zaffar Cotton Ginners. The evidence of Muhammad Rafiq of M/s. Zaffar Cotton Ginners supports the evidence of the Plaintiffs. Suleman Dawood has not examined himself in rebuttal and, therefore, my finding is in affirmative on this issue No.6 also.

33. For reasons recorded, while discussing Issue No.3. My finding is in affirmative on Issues Nos.7 and 8 also. The effect would be that the Defendant No.1 was liable to supply the contracted quantity of bales of cotton to the plaintiffs.

34. ISSUE N0.9 :

35. The plaintiff s witness has stated that M/s. Muhammad Amin and Muhammad Bashir Ltd. refused to deliver the cotton on the instructions from Defendant No.1. There is no evidence in rebuttal, nor is there any averment that the cotton was supplied by M/s. Muhammad Amin and Muhammad Bashir Ltd. therefore, my finding is in affirmative on this issue also.

36. ISSUE NO.10 :

37. While discussing the evidence on Issue No.3. I have already referred to the evidence, that the Defendant No.1 had agreed to give delivery of 1,000 bales of cotton through Defendant No.2 and this fact is also mentioned in telegram Ex.9. The explanation of the defendant as stated in para 10 of written statement at to why they asked defendant No.2 to supply the bales of cotton to the plaintiff has not been proved, by any evidence. Their witness P.W. Abdul Aziz only states that he received instructions from Seth Suleman Dawood to ask M/s.Kausar Oil and General Mills Multan to deliver 2,000 bales of cotton to the plaintiff, but he states it is not known to him why he was given these instructions by Seth Suleman Dawood. Therefore, my finding on Issue No.10 is in negative.

38. ISSUE N0.11 :

39. There is no evidence that Defendant No.2 offered to the plaintiff the delivery of 1,600 bales of cotton. As such my finding is in negative on this issue.

40. ISSUE N0.12 :

41. There is evidence of plaintiffs witness that Defendant No.2 did not deliver the bales of cotton to him. The defendant's witness has stated that the plaintiff did not take delivery from M/s.Kausar Oil and General Mills Multan, but no witness has been examined from the Company of Defendant No.2 to support this contention. However, there is no direct evidence that refusal to deliver the bales by Defendant No.2 was in collusion with the plaintiff. But presumption can be drawn that may be the reason as to why the Defendant No.2, in spite of instructions from the Defendant No.1 did not give delivery to the plaintiffs.

42. My finding on the issue are accordingly.

43. ISSUE N0.13 :

44. No evidence has been led by the defendant to show that any breach oft contract had been committed by the plaintiff but rather the existence of the contract is denied by the defendant. P.W. Muhammad Hussain, however, stated that the plaintiff did not abide by the agreement with him which was to the effect that the plaintiff would purchase cotton only through M/s. General Agencies of Multan. However, the contract which is subject matter of this suit, is not the contract between Muhammad Hussain and the plaintiff, but the contract between the Defendant No.1 and the plaintiff for which there is no evidence of breach contract on the part of the plaintiff.

45. My finding is in negative on this issue.

46. ISSUE NO.1

47. The plaintiffs witness Fazalur Rehman has stated that the contract was entered into by the plaintiff with the defendant No.1 through Muhammad Hussain at Karachi. The suggestion in the cross‑examination that the contract by Muhammad Hussain was entered into at Multan on telephone is denied by the plaintiffs witness. Muhammad Hussain is silent about the fact as to where the contract was entered into. The defendant's witness does not state as to where the contract was entered into. Thus the only evidence on record is that of plaintiffs witness. This evidence could have been rebutted by putting specific questions in cross‑examination of Muhammad Hussain regarding the place where the transaction took place. Though, as already pointed, this witness has tried to favour Defendant No.1, but still no such question was put to him From his evidence it appears that Seth Suleman Dawood, who purchases and sells cotton for the defendant, resides in Karachi. Under the circumstances, I am inclined to believe the plaintiffs evidence that the contract was entered into at Karachi. Ex.10/6 which is on the letter head of Defendant No.1 shows their address as `Dawood Centre' Karachi‑4. It is admitted by defendant's witness Abdul Aziz that their company has an export office at Karachi. Explanation (2) to section 20,1 C.P.C. provides that a Corporation shall be deemed to carry on the business at the sole or principal office or in respect of any cause of action at any place where it has also subordinate office at such place. The words "shall be deemed" were considered by their Lordships of Supreme Court in the case of M/s. Ranmania Trading Co. v. M/s. Eagle Star Insurance Co. Ltd. (P L D 1960 S C 202) and i! was held by their Lordships as under:‑

48. "Art explanation is enacted by the legislature to explain what otherwise would be doubtful or ambiguous. To the extent that it explains a stipulated situation its function is definitive inasmuch as it certifies or defines the legal position in a supposed state of acts. Therefore, despite the words `shall be deemed' Explanation (2) in terms defence the words `carries on business' used in clauses (a) and (b) of the section, and mean that where the defendant is a corporation, it is, deemed to be carrying on business at its sole or principle office irrespective of whether the cause of action hits arisen there, as well as of at the place where to it has its subordinate office provided the cause of ac, ion arises there. This appears to us to be its plain meaning."

49. I have already held that the contract was entered into at Karachi. The evidence on record, as pointed above, shows that at least some subordinate office of the Defendant No.1 is at Karachi. As such this Court has Jurisdiction to entertain the suit and my finding is in affirmative on issue No.1.

50. IS SUE N0.2 :

51. I have already held that M/s.General Agencies of Multan acted as agents of :3efendant No.1 while entering into contract in question with the plaintiff. Under section 230 of the Contract Act in absence of any contract to that effect, an agent cannot personally enforce the contract entered into by him on behalf of principal, nor he is personally bound by them.

52. It is not the case of the plaintiff that there was any contract with the Agent viz. M/s.General Agencies of Multan and they would be personally liable. Under the circumstances neither M/s. General Agencies of Multan was necessary party nor the suit would be bad for his non‑joinder. My finding is in negative on this issue.

53. ISSUE N0.14:

54. I have already held, that out of the contracted quantity of 2,000 bales of cotton, the defendant No.1 supplied only 400 bales of cotton to the plaintiff and committed breach of contract by its failure to supply 1,600 bales of cotton. The plaintiff as such is entitled to damages under Section 73 of the Contract Act. Illustration (a) to Section 73 would be applicable in this case which is reproduced as under:‑

55. "(a) A contract to sell and deliver 50 maunds of salt petre to B, at a certain price to be paid on delivery. A breaks his promise. B is entitled to receive from A, by way of compensation, the sum, if any by which the contract price falls short of the price for which B might have obtained 50 maunds of salt petre of like quality at the time when the salt petre ought to have been delivered."

56. I have already held that, according to the contract, the Defendant No.1 had to supply the contracted bales cotton to the plaintiffs by the end of November, 1970 at the rate of Rs.112/‑ per maund. The evidence of Muhammad Rafique shows that they supplied 400 bales of cotton to the plaintiff and the Invoice Ex.C/2 produced by him shows that the cotton was supplied by them at the rate of Rs.113.50 per maund. As such plaintiff is entitled to the difference between the two prices.

57. The plaintiffs witness P.W. Ahmed, who is Asstt. Chief Clerk of Karachi Cotton Association has produced spot local rates prevailing in Karachi on 30‑11‑1970 which was the last date on which the Defendant No.1 had to supply the goods. It shows the rate of cotton AC‑134‑SG to be Rs.133.75 per maund.

58. The defendant's witness Abdul Aziz has stated that if he remembers correctly, the rate of cotton AC‑134 was about Rs.109 or Rs.110/‑ per maund. He has produced no evidence in support of his contention and of which even he does not appear to be sure. As such the rates shown in the Daily Cotton Market Report Ex.6 issued by the Karachi Cotton Association Ltd. and produced by P.W. Ahmed will have to be accepted. These rates were prevailing at Karachi, but according to contract, the delivery was to be made at Multan. P.W. Fazalur Rehman has stated in his deposition as how they have calculated their claim for damages. The relevant portion of the statement is reproduced as under:‑

59. "On account of non‑delivery of 1,600 cotton bales by the defendants, we have filed the present suit for the recovery of Rs.1,42,433.56. This claim of damages is based on the difference of price between contracted price and the market price of the same quality of goods as prevailing on 30‑11‑1970. The market price as on 30‑11‑1970 of the contracted quality is based on the Karachi Cotton Association Bulletin. By calculating the damages we have given benefit of octroi and freight charges between Karachi and Multan as the contract was F.O.R. Multan whereas the market rate as on 30‑11‑1970 of Karachi Cotton Association was ex Karachi Godown. I may clarify that our total claim is Rs.1,42,433.56, out of which Rs.1,39,619.20 is on account of difference of contracted price and the market price as on 30‑11‑1970 and after giving adjustment on account of octroi and freight charges between Karachi and Multan as stated by me earlier, and the balance amount of Rs.2,814.36 is on account of excess payment made by us to Zafar Cotton Ginners, Multan, who has delivered us 400 bales of cotton but who had charged higher price than the price agreed in the agreement with defendant No.1."

60. In absence of any evidence to the contrary, the evidence of plaintiff's witness will have to he accepted. My finding on Issue No.14 is accordingly.

61. ISSUE N0.15 :

62. The suit of the plaintiff6 for Rs.1,42,433.56 is decreed with cost. Their claim for interest cannot be awarded before the damages are adjusted by the Court, and is, therefore, rejected.

63. The judgment was announced by a short order dated 5‑10‑1987 and these are the reasons.

64. AA./S‑176/K Suit decreed.