c.s. no 01-1992 .pdf

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

CIVIL SUIT NO. 01 OF 1992

M/S HASHWANI HOTELS LTD

VS

PTCL & ANOTHER.

DATE OF HEARING: 09.05.2011

PLAINTIFF BY: Mr. Tariq Aziz, Advocate

DEFENDANTS BY: Ch. Abdur Rehman Nasir, Advocate.

JUDGMENT

MUHAMMAD ANWAR KHAN KASI, J.

On 29-11-1992 M/s Hashwani Hotels, a Private Limited

Company/Owners & Operators of Marriott Inn-Old Holiday Inn Hotel

(hereinafter will be referred as Plaintiff) instituted this suit against Pakistan

Telecommunication Corporation (hereinafter will be written as

Defendants) seeking decree for recovery of Rs. Ten Millions with

costs of the suit. The claim of the plaintiff contained in suit is as

under:-

2- In 1986, plaintiff entered into an agreement with Telephones

& Telegraph Department/Defendants for installation of new

electronic digital exchange known as EMS 601 EPABX-52 + 496 in the

hotel and paid a sum of Rs. 39, 50,446/- through cheque dated

13.12.1988 for supply of electric exchange. On receipt of sale price,

the defendant got installed the exchange through M/s Siemens

Pakistan Limited in the end of year 1986, but it was fully

commissioned in April 1987. After the commission of exchange, it

CIVIL SUIT NO. 01 OF 1992,


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transpired that the same was only a standard version and was not in

accord with the required standard of plaintiff who then immediately

picked up this issue with the defendant but the latter refused to

acknowledge his liability as per contract by stating that standard

model does not contain the required features and the plaintiff will

have to procure additional accessories at extra costs. After some

discussions, the plaintiff opted not to enter into any controversy with

the defendant and paid full price of the additional accessories

including airlifting charges amounting to Rs. 24,25,300/- vide cheque

dated 04.4.1988. It was agreed between the parties that additional

accessories were to be installed within six months, but the defendant

again defaulted and failed to perform his part of contract despite

repeated demands, therefore, the plaintiff left with no option but to

cancel the purchase order dated 28.5.1990. The plaintiff asked the

defendants to rerun the sum of Rs. 24, 25,300/- together with

interest/markup and further sum of Rs. 23, 23,400/- as bank charges

alongwith markup, but he refused, which necessitated this suit.

3. The defendants contested the suit by filing written statement

on legal as well as factual grounds. It is averred that plaintiff has got

no cause of action, suit is time barred, the same has not been

properly stamped, plaintiff is estopped to file the suit, suit is bad for

mis-joinder and non-joinder of necessary parties, is not maintainable

in its present form, plaintiff has not come with clean hands, suit is

false, frivolous, based on malafide and defendant is also entitled to

special costs u/s 35-A CPC.



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PTCL & ANOTHER.

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4. On facts, it was averred that agreement was signed between

the parties for installation of EPABX 52 + 496 at Hotel Holiday Inn

(Marriot), Islamabad and accordingly, the said equipment was supplied

and installed but subsequently the plaintiff requested for installation

of certain additional facilities, which were agreed to between the

parties. The amount was received for onward payment to M/s

Siemens Limited, who were to arrange equipments from abroad but in

the meantime, the plaintiff arranged alternate facilities and backed

out from the deal with ulterior motive. It was further stated that

the plaintiff cancelled the order with malafide intention and refused

to get the installation of extra facility through the defendant and

the equipment is still lying with the defendant. In the last, he prayed

for the dismissal of the suit with costs.

5. The divergent pleadings of the parties were condensed to the

following issues on 06.12.1993:-

(i) Whether the plaintiff has got no cause of action

and the plaint merits rejection under Order VII

Rule 11 CPC? OPD

(ii) Whether the suit is time barred? OPD

(iii) Whether the suit has not been duly stamped for

the purposes of court fee and jurisdiction? If so,

its effect? OPD

(iv) Whether the plaintiff is estopped by his words

and conduct to file this suit? OPD

(v) Whether the suit is bad for mis joinder and non

joinder of parties? OPD

(vi) Whether the suit is not maintainable in its present

form? OPD

(vii) Whether the parties entered into an agreement in

the year 1986, regarding installation of a new

electronic digital exchange known as “EMS-601”,

as alleged in the plaint? If so, what were its terms

and conditions? OPP



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(viii) If issue No.1 is proved? Whether the plaintiff

performed its part of the contract and the

defendant committed breach that of? OPP

(ix) If issue No .8 is proved whether the plaintiff is

entitled to the refund of Rs. 24,24,300/- with

interest and other charges at the bank rate? OPP

(x) Whether the plaintiff is entitled to receive

damages arising out of alleged breach of

contract? If so, in what amount? OPP

(xi) Whether the defendants are entitled to special

costs? If so, in what amount? OPD

(xii) Relief.

6. Both the suits adduced evidence in support of their respective

contentions.

7. The plaintiff in oral evidence, got examined Mr. Suleman

Credit Manager as PW-1. In documentary evidence, the plaintiff

produced copy of resolution as Exh. P-1, copy of notice Exh. P-2,

copies of letters Exh. P-3 & P-4, copy of cheque Exh.P-5, photocopy

of telegram Exh.P-6, photocopy of bill Exh.P-7, copy of letter Exh.P-

8, telegram Exh.P-9, copies of letters Exh.P-10 to Exh.P-12,

provisional bill Exh.P-13, photocopy of payment voucher Exh.P-14,

copies of letters Exh.P-15 to Exh.P-17, copies of telegrams Exh.P-18

to Exh.P-19, copy of letter Exh.P-20, copy of telegrams Exh.P-21 to

Exh.P-23, copies of letters Exh.P-24 and Exh.P-25, final bill Exh.P-26,

copies of telegram Exh.P-27 to Exh.P-28, copies of letters Exh.P-29

to Exh.P-37, telegrams Exh.P-38 and copy of letter Exh.P-39.

8. Against it, the defendant produced Ejaz Sarwar, Engineering

Supervisor as DW-1 and also tendered authority letter as Exh.D-1,

copy of letter Exh.D-2, copies of telegrams Exh.D-3 to Exh.D-14 in

documentary evidence.



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9. After hearing both the sides, the then learned Civil Judge Ist

Class, Islamabad (Mr. Muhammad Mumtaz Hussain), vide Judgment &

Decree dated 25-9-2001, dismissed the suit.

10. The plaintiff then preferred an appeal (RFA No. 87/2001)

before Rawalpindi Bench of the Hon’ble Lahore High Court, which was

accepted vide Judgment dated 30-9-2010 by a Learned Division

Bench and the case was remanded to the learned Trial Court with

direction to decide the same afresh after giving its findings on each

& every issue separately.

11. In consequence of above decision, the case file against went

back to the Civil Court Islamabad where it remained pending and then

stood transferred to this Court after its establishment due to having

pecuniary jurisdiction.

12. I have given audience to both the sides’ at-length.

13. Learned counsel for the plaintiff in support of his contentions

relied upon case laws reported as PLD 1965 (W.P) Lahore 513 and AIR

1959 Madhya Pradesh 30 (V 46 C 14) Indore Bench.

14. Against it, defendants’ counsel relied upon case law reported

as AIR 1958 Punjab 289 (V 45 C 77).

15. My issue-wise findings are as under:-

ISSUE NO. 01

16. Preliminary, it was objected by the defendants that the

plaintiff had got no cause of action, therefore, plaint in suit is liable

to be rejected under Order VII, Rule 11 CPC.



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17. Needless to mention that for ascertaining as to whether the

plaint in suit is liable to be rejected or not, only plaint and the

material annexed therewith could be taken into consideration but now

as the suit is being decided after framing of issues and recording of

evidence, therefore, there is no need to dilate upon this issue as the

same has now become redundant.

ISSUE NO. 02

18. It was the stance of the defendants that the suit is time

barred. For deciding this issue, I take guidance from the Judgment in

Appeal dated 30-9-2010 wherein regarding this issue, following

observations were made:-

“The findings on issue No. 2 are also not sustainable

as the reading of Para 13 of the plaint reveals that

the cause of action arose on 13-2-1991 when on

account of breach of the terms of the contract, the

plaintiff was constrained to cancel the agreement

and he after sending notice, cancelled the contract

and called upon the defendants to refund the

payment made in advance and lastly in the year

1991 when the meeting took place between the

parties. The cause of action although having started

on 28-5-1990, accrued continually. Thus in our

view, the suit instituted by the appellant on 29-11-

1992 is within time from 21-3-1993 when the last

meeting took place between the parties, as is

provided under Chapter VI of the I Schedule of the

Limitation Act, 1908.”



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19. Following the view expressed by the learned Division Bench in

Judgment in Appeal, I restrict myself to dilate further upon this

issue which is answered in negative.

ISSUE NO. 03

20. Although it was objected that the suit had not properly been

stamped yet the defendants failed to adduce any evidence in support

of this issue, therefore, the same is answered in negative.

ISSUE NO. 04

21. The defendant failed to adduce any evidence in support of this

issue. Even otherwise, It is an admitted position that the plaintiff

placed orders to the defendants for installation of telephone

exchange and additional facilities at its Hotel and inter-se

negotiations were going on when suddenly the plaintiff cancelled the

deal and refused to accept the installation of additional facilities on

the ground that the defendants failed to supply required equipments

within six months or even thereafter despite several repeated

reminders/requests by the plaintiff. So, in presence of admission by

both the sides regarding placement of orders and installation of

exchange at the first instance, it cannot be said that plaintiff is

estopped by his words & conduct to file this suit. In my view, the sole

controversy which requires determination is as to who among the

parties was at fault? The issue is answered in negative.

ISSUE NO. 05

22. No worthwhile evidence has been adduced by the defendants

in support of this issue, therefore, the same is decided against them.



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ISSUE NO. 06

23. Onus to prove this issue was placed upon the plaintiff. Much

stress was made from plaintiff’s side that it was a

contract/agreement and the defendants failed to abide by its terms

& conditions by not providing special equipments for which they had

to place another requisition and also paid extra amount for the

recovery of which they filed the instant suit. In such state of

affairs, it will be imperative to ascertain first as to whether there

was any specific contract/ agreement with specific terms &

conditions inter-se the parties or it was a broad order for provision

of telephone exchange & then extra facilities.

24. According to Clause 2(h) of Contract Act 1872, Contract is an

agreement which is enforceable by law. Every contract is an

agreement but every agreement is not a contract. Contract is a

bilateral transaction between two or more than two parties. Every

contract has to pass through several stages beginning with the stage

of negotiation during which the parties discuss and negotiate

proposals and counter proposals as also the consideration resulting

finally in the acceptance of the proposals. The proposal when

accepted gives rise to an agreement. It is at this stage that the

agreement is reduced into writing and a formal document is executed

on which parties affix their signatures or thumb impression so as to

be bound by the terms of the agreement set out in that document.

Keeping this criterion in mind, I have examined oral as well as

documentary evidence led by both the sides.



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25. The narrative starts on 13-12-1988 when Resident Manager,

Holiday Inn(Marriot) wrote a letter (Ex. P3) to Division Engineer, T&T

Department, in which it was stated that in consequence of a meeting

that took place between RM Holiday Inn & DG T&T in the first week

of March, 1986 regarding requirements of new Telephone Exchange,

installation of EMS 601 Type Exchange was proposed and through

said letter, the plaintiff in anticipation issued cheque of Rs.

39,50,446/-. It is quite clear from the contents of this document

that plaintiff wanted to get install a telephone exchange and for the

purpose he got inspected its Hotel from concerned telephone experts

of defendants, who after deliberations suggested installation of EMS

601 Type Exchange. It means that there was no specific

contract/agreement between the parties. The move initiated by the

plaintiff and the defendants-Department suggested the installation

of Exchange that had to be provided by the M/s Siemens Company.

The entire evidence including deposition of PW-1 is absolutely silent

on the point that if it was an agreement then what were its terms &

conditions. It is also an admitted position that the defendants got

installed Telephone Exchange through M/s Siemens Company. The

witness of the plaintiff also admitted this fact in his statement.

There is no document on record through which it could be ascertained

that defendants had to supply the equipments within six months. The

payment made by the plaintiff was paid to M/s Siemens, who

arranged the equipments for installation.



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26. The factual position that emerged through perusal of

documentary evidence comprising Ex. P-2 to P-39 & Ex. D-1 to 14 is

that initially plaintiff placed an order for installation of telephone

Exchange that was proposed after due deliberations. The same was

installed and thereafter the plaintiff placed another order for

provision of standardized additional equipments to the defendants

and the payments made for that were further paid to the Company

M/s Siemens and when the equipments were made available, the

plaintiff refused to get install the same. This observation find

supports from Ex. P-24 i.e. Minutes of the Meeting Held on 10-3-1991

in Holiday Inn, the participants of which were Front Manager, Holiday

Inn, Div. Engineer & Assistant Engineer Dev-I & Executive Engineer

Siemens Limited. The proceedings of Agenda No. 2 were as under:-

“2. SUPPLY OF INSTALLATION OF ADDITIONAL

EQUIPMENT i) METER PULSE REPEATER RACK,

ii) CALL CHARGE COMPUTER

On 12-02-1991, Call Charge Computer was sent

to Holiday Inn Hotel for Installation, but it was

not allowed by the authority due to some

disputes. In the meeting, hotel management

insisted first to settle the dispute of delay

installation equipment for which payment of Rs.

24, 25,300/- , dated 4 April, 1988, was made

regarding facilitating customers in the interest

of Hotel business. They further claimed that

the Bank interest paid by Hotel authority should

bear PTC due to delay regarding installation, but

the management was unable to supply such clause

of the contact which show PTC responsibility in

case of delay etc. Any how, management was not

compromising at this stage to permit PTC &

Siemens Staff to install the equipment.”

(Underlined by me)



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27. It is manifestly clear that the equipments were sent for

installation at the Hotel on 12.2.1991, but the plaintiff refused to get

install the same. It was the stance of the plaintiff that first to

settle the dispute of delayed provision of equipments. The Hotel

Management insisted that defendants should bear Bank Interest but

there was not clause of the contract to this effect. The plaintiff’s

own version emerged through (Exh. D1) was that the delay, if any, was

not on the part of defendants rather the same was by the M/s

Siemens, who had to get the accessories from Germany. As per Ex. P-

19 the plaintiff, at its own, cancelled and recalled the order. So

responsibility of a contract if any that had been cancelled by the

plaintiff himself cannot be fixed upon the defendants. It is also

evident from the evidence on record that after canceling the order,

the plaintiff at its own purchased the required equipments from local

market at low prices.

28. Evidence further shows that the equipments so requisitioned

are still available with the defendants and they are ready to provide

the same to the plaintiff.

29. The sum & substance of above discussion is that there was no

specific contract/agreement with specific terms & conditions

including penal provisions inter-se the parties. It was an order for

provision of Exchange first and thereafter additional equipments.

The defendants got installed the Exchange and when the accessories

were shifted to the Hotel of the plaintiff, he refused to get install



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the same, as revealed through Ex. P-24. Resultantly, the issue is

answered in negative.

ISSUE NO. 08

30. Since it has been held that there was no specific contract or

agreement inter-se the parties and the same were orders, with no

stipulations having binding force, for provision of Exchange &

accessories, therefore, there arises no question of its breach by the

defendants. The issue is answered in negative.

ISSUE NO. 09

31. Since it has been held that the defendants were not at fault

and the delay in supply of accessories, if any, as per plaintiff’s own

version, was due to late provision of equipments by the M/s Siemens

who had to arrange the same from abroad, therefore, the plaintiff is

not entitled to recover the claimed amount with other charges at the

bank rate as there was no such agreement for the recovery of the

same. However, it is an admitted position that the equipments are

still lying with the defendants and the plaintiff, if so desires, may

collect the same. The issue is answered in negative.

ISSUE NO. 10

32. No specific evidence had been adduced by the plaintiff in

support of this issue. Even otherwise, since there was no specific

agreement between the parties, there arises no question of its

breach or recovery of damages in lieu thereof. The issue is answered

in negative.



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ISSUE NO. 11

33. No evidence has been advanced by the defendants in support

of this issue, therefore, the same is answered in negative.

RELIEF

34. For the foregoing findings, the suit of the plaintiff for the

recovery of Ten Million Pakistani Rupees is dismissed. However,

plaintiff is held entitled to collect the requisitioned equipments lying

with the defendants. No orders as to costs.

(MUHAMMAD ANWAR KHAN KASI)

JUDGE

ANNOUNCED IN OPEN COURT ON 13 .06.2011.

M. Suhail

JUDGE

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