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Suit No. 247 of 1986, decided on 27th August, 1986.

---S.30--Arbitration--Award--Claim of plaintiffs about cost of sugar bags despatched to defendants who were appointed their sole selling agents--Award given by umpire against defendants was without proof and contrary to statements of witnesses recorded by him--Umpire himself observing in his award that question was not of despatch but of delivery of sugar bags to defendants--Goods stated to have been delivered through a transport company but said company intimating in a letter to plaintiffs that sugar bags were delivered to truck drivers for delivery to defendants--No record was produced in support of contents of letter--Drivers were also not produced nor their identity mentioned in said letter of transport company--Statement of witnesses before umpire not enough to prove actual delivery- Award being based on misreading of evidence, defendants, held, could not be saddled with liability--Award set aside.

A.I. Chundrigar for Plaintiffs.

Munawar Abbas for Defendant.

Date of haring: 27th August, 1986.

The plaintiffs are a Sugar 'Mill. This Sugar Mill is situated at Talhar. They appointed the defendants as their sole selling agent for Karachi vide agreement dated 25-11-1966 for the season 1966-67. It is admitted position that a large volume or business was conducted and the defendants sold huge quantity of sugar supplied to them by the plaintiffs. The dispute, however, arose in respect of 592 bags of sugar which, according to the plaintiffs, was supplied to the defendants and was never paid for. But according to the defendants it never reached their hands. This dispute was referred to arbitration. The Arbitrators could not give their award and referred the matter to a gentleman Mr. Saeed Behari, who was to act as an Umpire. Mr. Saeed Behari, after recording some evidence, came to the conclusion that the versions of the two parties being at variance, he could not make up his mind as to which of the versions was correct. As such he recommended that the matter should be referred to the court. This award was filed as Suit No. 766/1969. The Court by its order dated 17-11-1969 did not accept the recommendations of the Umpire and remanded the case to the same Umpire for rendering the decisions, on the evidence already recorded and if deemed necessary by admitting further evidence. Mr. Saeed Behari gave a second award dated 14-6-1970. It was filed in this Court as Suit No. 278/1970. This award was affirmed and made a rule of the Court by Judgment dated 11-11-1971 by this Court. The defendants filed LPA No. 7/1972 against the Judgment dated 11-11-1971. A Division Bench of this Court allowed the appeal and set aside the decree as well as the award by Judgment dated 18-11-1982. By another order dated 27-2-1983 the Division Bench referred the matter to Mr. M.M. Mahmoodi Advocate, as the previous Umpire Mr. Saeed Behari had expired in the meantime. Mr. M.M. Mahmoodi, after recording fresh evidence of the parties has given his award dated 28-1-1985 which he has filed as Suit No. 47/1985 now challenged by both the parties under this award the learned Umpire has awarded to the plaintiffs the price of 390 bags which, according to the learned Umpire, were delivered to the defendants. He has however, dismissed the claim for the remaining number of bags namely 202 bags.

Mr. Munawar Abbas learned counsel for the defendants has filed objection under section 30. His main argument is that this award is without any proof and indeed contrary to the statements of the witnesses recorded by the learned Umpire.

I have perused the award as well as the statements and I must say that the contention has force. The learned Umpire himself has observed in his award that the question is not of the despatch but is of the delivery of sugar bags to the defendants. To be satisfied about the delivery the learned Umpire has relied on Ex. P/1 dated 29-5-1957 which is a letter of the Transport Company namely, 'Wahdat Goods Transport Company in reply to plaintiff's letter dated 24-5-1967. In this letter, as the query of the plaintiffs, this Goods Transport Company has replied back to say that these goods were delivered to the truck drivers, who in turn had delivered it to the Defendants. This letter was produced by PW Abdul Saeed. This witness in his cross-examination has stated that he had no record with him to support the statement made by him in the letter dated 29-5-1967 Ex. P/1. Moreover he has made a categorical statement which totally demolishes the effect created by Ex. P/1. It would be profitable to quote this portion of the statement of this witness which is as follows:-

"Driver never used to give us any receipt showing that the consignments have been delivered to the consignees. I have no proof to show that any particular consignment has been delivered to particular consignee."

The witness further stated that:

"The delivery dates mentioned in Ex. P/1 were on the basis of information received on telephone from consignees and some time from plaintiff. The information about delivering of consignment used to be received immediately after the delivery of tax was made. I never noted such information anywhere. When I wrote Ex. P/1. I had no record about deliveries. I cannot say who were the Drivers of the Truck mentioned in Ex. P/1."

The drivers have not been produced nor their identity has been mentioned in this statement. Whatever little effect Ex. P/1 created has completely been washed of by the fact that this was prepared without any record.

The real dispute as rightly highlighted by the Umpire is not whether the plaintiff Sugar Mill despatched the goods, but whether they were delivered to and reached the hands of the defendants. In C support of this there is not an iota of evidence and the Defendants cannot be suddled with the liability which has been denied from the very beginning which is evident from their letters particularly fro lm their letter dated 24-5-1967.

Mr. I. Chundrigar learned counsel for the plaintiffs found it difficult to support the award. His main contention was that Ex. P/1 should be relied upon. But Ex. P/1 cannot be considered in isolation. The statement of P.W. Abdul Saeed before the Umpire that he could not prove the actual delivery to the defendants is enough and fatal, to the claim of the plaintiffs.

This award is, therefore, based on misreading of the evidence and it is set aside with no order as to costs.

M. Y. H./B-47/K Award set aside.

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