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(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 25th June 1969, in R. F. A. No. 207 of 1959).

Contract Act (IX of 1872),

S. 238‑Principal and Agent Treasury Contractor employed on basis of a contract of guarantee Defalcation of amount by contractor's agent and original contract of guarantee removed from record‑Government, in suit for recovery of amount, producing letters of contractor spelling out terms and conditions of such contract‑High Court concurring in finding of trial Court that case was established under S. 238 and decreeing suit‑No scope, held, left for interference by Supreme Court.

Maqbul Ahmad Sheikh, Advocate Supreme Court instructed by Abdul Karim Sheikh, Attorney for Petitioner.

Nemo for Respondents.

Dates of hearing : 2nd and 3rd March 1970.

MUHAMMAD YAQUB ALI, J.‑---

This petition for special leave to appeal is concluded by concurrent findings of fact. Ijaz Ahmad an employee of the petitioner, defalcated Rs. 2,43,000 from the Kohat Treasury. Out of the sum Rs. 1,70,290 were recovered and for the balance amount the Government filed a suit on the basis of the contract of guarantee entered into by the petitioner at the time of his appointment as Treasury Contractor. The petitioner denied having entered into any such contract and pleaded inter alia that his liability, if any, was limited to Rs. 30,000. It was further claimed that since the Treasury Officer had failed to perform the duties imposed on him by the Rules intended to ensure against defalcation, the petitioner was not liable to reimburse the Government. Lastly, it was contended that defalcation, if any, did not take place in the course of the business assigned to Ijaz Ahmad, as employee of the petitioner, to attract the vicarious liability prescribed for by section 238 of the Contract Act.

In the absence of the original contract of guarantee which appeared to have been removed from the record, the trial Judge allowed the Government to lead secondary evidence of its terms and conditions. Letters addressed by the petitioner to the authorities concerned before his appointment as Treasury Con tractor and during the operation of the contract also spelt out the terms and conditions of the contract of guarantee. Evidence was also led which proved beyond any doubt that the sum of Rs. 2,43,000 was defalcated from the Kohat Treasury between 14‑5‑1948 and 17‑1‑1949, and the subsequent recovery of Rs. 1,70,290. The liability of the petitioner as Treasury Contractor was thus established under section 238 of the Contract Act and the suit was decreed. On appeal the High Court for good and sufficient reasons concurred in the findings recorded by the trial Court and upheld the decree passed against the petitioner with the variation that interest was disallowed as the Government had not claimed any in the plaint.

The petitioner now seeks leave to appeal on grounds which as said in the beginning of the order are concluded by findings of facts. As to the legal issue the learned counsel was, in spite of our giving him an opportunity to study the scope of section 238 of the Contract Act and precedent cases on the point, unable to show that the negligence or connivance of the Treasury Con tractor facilitating defalcation diminished his liability under the contract of guarantee to indemnify the Government.

No proper ground is thus made out to call for interference by this Court in the exercise of its special jurisdiction with the decree passed against the petitioner. The petition is, accordingly, dismissed.

Leave refused.

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