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Suit No.582 of 1984, decided on 10th March, 1987.

---S.73--Breach of contract--Suit for recovery of damages--Goods shipped by defendant supplier for plaintiff not found in conformity with invoices, weight and packing lists--Survey report confirming contention of plaintiff and his claim supported by evidence--Statement of attorney of plaintiff regarding sum paid as premium by plaintiff to defendant also going unchallenged--Suit decreed in circumstances.

Abul Imam for Petitioner.

Nemo for Defendants.

Date of hearing: 10th March, 1987.

The brief facts giving rise to this suit are that the Plaintiff carried on business under the name and style-of Messrs Radio Palace which concern deals in electronic goods and is also engaged in the business of assembling Radio Cassette Tape Recorders by importing parts thereof from abroad. The Defendant No.1 is a foreign Company of Singapore and carries on business of supply of parts of Radio Cassette Tape Recorders. The Defendant No.2 are Bankers of the Plaintiff while the Defendant No.3 is the Insurance Company with whom the suit consignment was Insured and Defendant No.4 are the Bankers of Defendant No.1 in Singapore.

2. For the purpose of assembling Radio Cassette Tape Recorders, the Plaintiff wanted to import parts thereof from abroad. The Defendant No.1 vide pro forma invoices No.786/1/RP/84 and 787/l/RP/84 both dated 21-5-1984 offered to supply different parts for assembly of Radio Cassette Tape Recorders to the Plaintiff and the Plaintiff agreed to purchase the same from Defendant No.1. Accordingly the Plaintiff obtained import Licences and established two irrevocable letters of credit, dated 3-6-1984 through Defendant No.2 for the supply of the said spare parts. The consignments of parts were got insured with Defendant No.3 against various risks under two marine cover notes. The Defendant No.1 shipped 8 wooden Cases declaring them to contain Metal Copper and alloys Moulds per suppliers' proforma Invoice No.786/1/RP/84, dated 21-5-1984 on board the vessel, "Hunza" under bill of lading No.68, dated 8-6-1984 and another Consignment of 11 wooden Cases declaring them to contain Machinery and Mill works etc. as per suppliers' Invoice No.787/l/RP/84 was shipped by Defendant No.1 on board the vessel "Hunza" under bill of lading No.67, dated 8-6-1984.

3. Thereafter the Defendant No. 1 submitted the relevant documents to Defendant No.2, through their Bankers, the Defendant No.4, and encashed the aforesaid two letters of Credit. The Defendant No.2 in turn asked the Plaintiff to retire the documents on payment of balance of L.C. amount, but before the Plaintiff could retire the documents the Plaintiff came to know that Defendant No.1 has played fraud on the Plaintiff in as much as the aforesaid two consignments shipped by Defendant No.1 consist of Junk and the goods shipped are not in conformity with the Invoices, weight and packing Lists.

4. The vessel carrying the aforesaid two consignments arrived at the port of Karachi in the last week of June, 1984 and off loaded the said two consignments. Since the goods were not in conformity with the Invoices issued by Defendant No.1, the Plaintiff filed the above suit.

5. An application under Order 18 Rule 18 read with Order 26 Rule 9 and Order 39 Rule 7 read with section 151 C.P.C. was filed on behalf of the Plaintiff and this Court vide order, dated '17-9-1984 appointed Messrs Macknon Mackenzie and Company to survey the goods under customs supervision. The survey conducted by Messrs Macknon Mackenzie and Company confirmed the doubts of the Plaintiff as is evident from their survey report.

6. The Defendants were served and Defendant No.2 filed their written statement whereas the Defendant No.3 did not file any written statement. The Defendant Nos.l and 4 were declared Exparte as none appeared on their behalf in spite of service of summons. The Plaintiff examined her attorney Jafarali son of Rajab Ali and closed its side. None of the Defendants led any evidence.

7. The Plaintiff has claimed a total sum of Rs.59,36,950 as damages suffered by the Plaintiff No.1 on account of the fraud played upon the Plaintiff by Defendant No.1 from Defendant No.1 only in the above suit and Defendant Nos.2, 3 and 4 have been joined as proforma defendants in the suit. The claim of the Plaintiff has been summarised in para 16 of the plaint. Item No. (a) of para 16 of the plaint stands proved by Ex.6/6 which is a paid challan of the fee paid by the Plaintiff for obtaining Import Licences which are Ex.6/1 and 6/2. The items mentioned in clauses (b), (c) and (e) of para 16 of the plaint stand proved by Ex.6/4 and 6/5 which are the letters of credit established by the Plaintiff in favour of Defendant No.1. Furthermore, apart from the statement on oath of the attorney of the Plaintiff which has gone un-challenged the Defendant No.2 in para 2 of the written statement have supported the version of the Plaintiff.

8. The item No. (d) of para 16 of the plaint is supported by Ex.6/9 and 6/10 which are Insurance covers issued- by Defendant No.3 which bear the endorsement "premium paid". Furthermore the statement of attorney of the Plaintiff to the effect that a sum of Rs.1,50,000 was paid by the Plaintiff to Defendant No.3 as premium has also gone un-challenged and as such this amount also stands proved.

9. All the sums mentioned above come to a total claim of Rs.47,70,000 (Rupees forty-seven lacs and seventy thousand only which is decreed.

10. The Plaintiffs have also claimed Rs.1,66,950 on the above sums decreed herein above as interest and Rs.10,00,000 (Ten Lacs only) towards loss of profit. The said amounts for damages and loss of profit as claimed have not been proved to my satisfaction as there is no evidence except the bare statement of the Plaintiff. I, however, grant the compensation at the rate of 6% on the sum of Rs.47,70,000 (Rupees forty-seven lacs and Seventy thousand only) as provided under section 61 of the Sales of Goods Act, 1932, from 16-6-1984 till realization.

11. The Plaintiff will also be entitled to costs from Defendant No. 1.

M.Y.H./Y-6/K Suit decreed.

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