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Suit No. 299 of 1981, decided on 9th March, 1983.

‑‑ S. 9 and O. IX, r. 6‑Suit for recovery of money‑Claim of plaintiff remaining unrebutted and unchallenged‑Defendants though served not attending and case proceeded ex pane‑Material on record as per statement made on oath in plaint coupled with affidavit filed in ex parte, proof and documents of unimpeachable character establishing that defendants failing to make payment of goods supplied to them by plaintiff as per agreement and breaking solemn undertaking, agreements and promises made by them‑Suit decreed against defendants severally and jointly.

Farooq Naek for Plaintiff.

Defendants (absent).

Date of hearing : 9th March, 1983.

This is a suit for recovery of Rs. 42,57,403 with costs and interest filed by the plaintiff against the defendants Nos. 1 and 2 in the following circumstances as disclosed in the plaint verified on oath.

1. The plaintiff a registered partnership firm, entered into an agree ment with the defendants whereby the latter agreed to import fresh fruits of Pakistan to be supplied by the plaintiff on the terms and conditions mentioned in the defendants letter dated 15th July, 1980 addressed to the plaintiff. According to the agreed conditions, it was, inter alia, provided that the defendants would import fresh fruits and fish supplied through air‑shipments and payment would be made to the plaintiff or, the D/A basis, within 60 days. The facts pleaded in the plaint further show that on 15th July, 6th, ‑ 22nd August, and4th October, 1980 the defendants placed orders on the plaintiff for supply of Garma', mangoes and fish of a total value exceeding US ; 1.5 million. Copies of the orders placed by the defendants have been annexed with the plaint and are marked Annexures ID', 'E', 'F' and 'G' of which originals have also been filed in the Court alongwith the affidavit filed in ex parte proof. The plaintiff in accordance with the aforementioned agreement supplied to the defendants the following quantities of goods through air‑shipments :

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"Shipment Date Bank Reference Commodity C & E Value

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9th August, 1980 KC/BC/00160 Mangoes 6,000.00

11th August 1980 'KC/BC/00163 Mangoes 7,200.00

4th August, 1980 KC/BC/00222 Garma 360.00

9th August, 1980 KC/BC/00161 Garma 3,400.00

11th August, 1980 KC/BC/00164 Garma 6,800.00

6th September, 1980 KC/BC/00223 Garma 10,200.00

6th October, 1980 KC/BC/00314 Pomegranate 1,122.00

25th October, 1980 KC/BC/00346 Pomegranate 1,320.00

1st November, 1980 KC/BC/00347 Pomegranate 49,632.00

14th November, 1980 KC/BC/00378 Pomegranate; 50,804.60

19th September, 1980 KCJBC/00247 Fish 1,14,736.50

4th October, 1980 KC/BC/00268 Fish 99,291.70

1st November, 1980 KC/BC/00345 Fish 39,599.50

14th November, 1980 KC/BC/00379, Fish 35,274.00"

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Copies of the Air Ways Bills in respect of the above consignments have been produced as Annexures H‑1 to H‑14 with the plaint and originals thereof have also been filed alongwith the affidavit in ex pane proof. The documents produced show that the defendants did not make the payment of the outstanding except U S 51,900. Thus the defendants remained liable for payment of the balance U S 4,25,740.30 to the plaintiff.

The plaintiff has also produced letter dated 6th January, 1981 (Annexure'J' to the plaint) wherein with reference to the outstanding amount, the defendants agreed to arrange the payment of the entire out standing amount as per schedule of payments recorded in the said letter. Further, as per agreement dated 7th January, 1981 (Annexure K') the defendants agreed to make payment of the remaining among to the plaintiff in instalments in the manner stated therein.

On 8th January, 1981 the parties entered into yet another agreement at Karachi whereby the understanding reached on 7th January, 1981 was reduced into a formal agreement, a copy of which has been produced as Annexure 'L' to the plaint The defendants in spite of all the promises made as above and solemn undertakings given failed to make payment of any instalment and thus the entire balance, (US 4,25,740.30 then equivalent to Pak. Rs. 42,57,403 has remained unpaid to the plaintiff by the defendants.

By letter dated 9th March, 1981 the defendant No. 1 once again while regretting inability to make the payment as per schedule of pay ments agreed by him, offered to make the payments in accordance with the revised schedule proposed by him in the said letter. The plaintiff however did not agree to the proposal thus made unless Bank Guarantee was furnished.

2. The claim made by the plaintiff on the facts as stated above have remained unrebutted and unchallenged. The defendants though served have remained absent and the case has proceeded against them ex parte.

3. Considering the material on record as per statement made on oath in the plaint coupled with affidavit filed in ex parte proof and docu ments of unimpeachable character, I find that the defendants have not made the payment to the plaintiff for the goods supplied by them in accordance with the agreement and that the defendants in spite of all possible indulgence shown, in breach of solemn undertakings, agreements and promise made by them, have failed to pay the amount outstanding to the plaintiff which comes to US . 42,25,740.30 then equivalent to Rs. 42,57,403 as claimed in the suit.

4. Accordingly the suit is decreed against the defendants jointly and severally for Rs. 42,57,403 with interest at the rate of 157. p. a. from the date of institution of the suit till payment.

The defendants shall also pay the costs of the suit to the plaintiff.

M. Y. H. Suit decreed.

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