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Suit No.211 of 1973, decided on 23rd January 1985.

‑‑‑Ss.2(h) & 73‑‑Carriage of Goods by Sea Act (XXVI of 1925), Arts. I V & V‑‑ Transportation of goods by sea‑‑Breach of contract by carrier Denial of contract‑‑Liability of carrier to pay compensation Document son record, held, bear out that contract had been concluded between parties for shipment of consignment‑‑Such documents further showed that on account of increase in freight rates in World Market, Carrier went back upon its commitment under contract as it wanted increase in freight rates which was not acceptable to plaintiff‑‑Case of breach of contract on the part of carrier would be established entitling plaintiff to claim of compensation in circumstances.

‑-‑Arts. IV & V‑‑Contract Act (IX of 1872), S.73‑‑Transportation of goods by sea‑‑Breach of contract by carrier‑‑Quantum of damages‑‑Mode of determination‑‑Difference between freight rates agreed upon between carrier and plaintiff on one hand, and between subsequent carrier and plaintiff, held, could be calculated as damages for breach of contract.

Syed Hassan Jafri for Plaintiff.

Date of hearing: 23rd January, 1985.

This suit has been filed for the recovery of Rs.3,07,500 with interest and costs by the plaintiff‑Corporation against the defendant Company on account of the damages for breach of contract. The case of the plaintiff is that they had invited offers on 8‑8‑1972 from Shipping Companies for a vessel on charter for the transportation of 15, 000 metric tons of rock phosphate from Jordan to Karachi on the terms and conditions mentioned in the tender (Exh. 5/1) and on 22‑8‑1972 the tenders were opened and the lowest tender, which was found to be of the defendant‑Company, was accepted. Exh. 5/2 is the offer of the defendant and it shows the total freight rate of Rs.58.75 per metric ton and out of this amount U.S. 5 per metric ton was remit table in foreign exchange. Exh. 5/3 is the acceptance letter, dated 24‑8‑1972. A letter of credit was also opened and it was later on amended (Exh. 5/4) by the plaintiff. According to the plaintiff, however, the defendant committed breach of contract and were neither able to name the vessel nor transported the consignment from Jordan to Karachi and on account of this breach on the part of the defendant the plaintiff had to invite fresh tenders and in such fresh tenders the lowest offer of Ahmed Shipping Lines Ltd. (Exh. 5/17) dated 20‑I‑1973 was accepted and the rate of Ahmed Shipping Lines Limited, which was accepted, was 89.50 per metric ton, out of which the remit table foreign exchange was U.S.

7.90 per metric ton. For damages the present suit has been filed against the defendant. A written statement was filed, in which the plea was taken that a contract had not come into existence. The claim of the plaintiff was denied. The following consent issues suggested by the learned counsel were adopted by this Court by order, dated 21‑2‑1974:‑

(1) Whether in response to the plaintiff's tender, the defendant made an offer to the plaintiff on 22‑8‑1972 to charter a vessel for them at a freight rate of U.S = 5.00 (F.E.) per metric ton for the transport of 15,000 tons of rock phosphate from Aqba (Jordan) to Pakistan, which was accepted by the plaintiff on 24‑8‑1972

(2) Whether by their letter, dated 22‑8‑1972 the defendant undertook to disclose some particulars of the vessel, etc. later on but they did not for over three months

(3) Whether the aforesaid offer and' acceptance between the parties tantamount to a completed contract

(4) Whether the defendant failed to charter the vessel for the plaintiff' upto 31‑12‑1972 and thereafter within the extended period upto January, 1973 and sought increase in freight rate in contravention of the stipulated rates

(5) Whether on the failure of the defendant to arrange the vessel within the stipulated period, the plaintiff had to flat another tender on 9‑1‑1973 but before opening the new tender again called upon the defendant to perform the contract but he did not and continued to press for increase in freight rates

(6) Whether on the failure of the defendant to perform the contract, the plaintiff had to open the new tender on 20‑1‑1973 and arrange the vessel through Messrs Ahmed Shipping Lines on an enhanced freight rate of 7.90 per metric ton and thereby incurring an additional expenditure of Rs.3,07,500

(7) Whether the plaintiff are entitled to the said difference of Rs.3,07,500 with interest at % per annum

(8) Whether the defendants have committed breach of completed contract

(9) To what relief is the plaintiff entitled to

2. Today the case was fixed for evidence. No one had appeared on behalf of the defendants. Evidence of P.W.1 Abid Hussain Usmani (Exli. 5) was recorded, after which the plaintiff had closed the side. As observed earlier, no one was present on behalf of the defendants. The side of the defendant was also closed. I have heard Mr. S. Hassan Jafri, learned counsel for the plaintiff.

3. The case of the plaintiff depends upon documentary evidence which documents have been brought on record through the evidence of the plaintiff's witness. Issues Nos. l and 2 are answered in the affirmative on the basis of Exh. 5/1, which is a copy of the tender called by the plaintiff, Exh. 5/2, which is the offer, dated 22‑8‑1972 of the defendant and Exh. 5/3 which is the letter, dated 24‑8‑.1972 of the plaintiff addressed to the defendant accepting the offer of the defendant. It may be observed here that the lay days were specifically mentioned as 1st December‑31st December, 1972.

4. Issues Nos.3, 4, 5 and 8 are taken up together. Exhs. 5/1, 5/2 and 5/3 and other documents which have been brought on record through the evidence of the plaintiff's witness established the completed contract between the parties. Then reference is made to Exh.5115 which is a letter, dated 17‑1‑1973, in which the defendant has clearly stated that the rate of Rs.58.75 with remit table foreign exchange at U.S. 15 5.00 per metric ton had been accepted by the plaintiff. However, the stand of the defendant has been that in the meantime there had been an upward trend in the freight rates and as the proposal of the defendant for increase in the freight rate had not been accepted by the plaintiff the defendants were unable to carry the cargo unless the rates‑ were enhanced. From documentary evidence on record it has been proved that a contract had been concluded between the parties but on account of increase in the freight rates in the World Market, the defendant, went back upon their commitment under the contract and wanted a increase in the freight rate, which was not accepted by the plaintiff. A case of breach of contract on the part of the defendant has been established by the plaintiff through documentary evidence brought on, record. Issues Nos.3, 4, 5 and 8 are accordingly answered in the affirmative. It is held that the defendant committed breach of confect for which the plaintiffs are entitled to claim compensation.

9. As regards issue No.6, reference may be made to Exh. 5/13, which is a copy of the fresh tenders called for by the plaintiff and Exh. 5/17 which was the offer made by the Ahmed Shipping Lines Limited. The offer of Ahmed Shipping Lines Limited is, dated 20‑1‑1973 and the rate offered by this company was Rs.89.50 which included the remit table foreign exchange of U.S. f 7.90 per metric ton. According to the plaintiff's witness (Exh.5), the offer of Ahmed Shipping Lines Limited in the fresh tenders was the lowest and it was accepted. The acceptance letter, dated 22‑1‑1973 is Exh. 5/18 addressed to Ahmed Shipping Lines Limited. On the basis of this documentary evidence and the oral testimony of the plaintiff's witness issue No.6 is also decided in the affirmative.

6. Issue No.7 is about the quantum of damages to which the plaintiff are entitled. The freight rate offered by the defendant and which was]. accepted by the plaintiff is clearly mentioned in Exh.5/2 and 5/3. The freight rate offered by Ahmed Shipping Lines Limited on fresh tender being called by the plaintiff on account of breach of contract by th defendant is also available in Exhs. 5/17 and 5/18. On the basis of th difference between these two rates the amount of claim is Rs.3,07,500. The calculation is also given in para 13 of the plaint. The witness o the plaintiff has also given the basis of the damages of Rs.3,07,50 claimed by the plaintiff. On the basis of the evidence on record, the plaintiffs are entitled to Rs.3,07,500. Issue No.,7 is decided accordingly.

7. As a result, Suit No.211 of 1973 is decreed in favour of the plaintiff and as against the defendant in the sum of Rs.3,07,500 with interest at the rate of 6 per annum from the date of the filing of the suit till realisation. The plaintiffs shall also be entitled to costs I.

A . A . Suit decreed.

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