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Petitioner: Syed IMTIAZ H. RIZVI VS Respondent: ABDUL WAHAB
Court Name: Sindh High Court Judge(s): Khalid Ali Z. Qazi Title: Syed IMTIAZ H. RIZVI vs ABDUL WAHAB Case No.: Suit No,41 of 2004 Date of Judgment:2008-12-05 Reported As: 2009 YLR 1199 Result: Suit dismissed
JUDGMENT
JUDGMENT 'KHALID ALI Z. QAZI, J.---This is a suit filed by the plaintiff against the defendant seeking recovery of Rs,50,00,000 with costs and interest with the following reliefs:- "(a). Defendant be directed to pay a sum of Rs,50,00,000 to the plaintiff, forthwith. (b) Defendant be directed to pay interest from 1-2-2001 on the principal amount of Rs,50,00,000 at 18% per annum and the amount to date is Rs,27,00,000. (c) Cost of the suit be borne by the defendant. (d) Any other relief that the Honourable Court may deem fit and proper in the circumstances of the case." 2. Brief facts of the case as disclosed in the memo. Of plaint are that the plaintiff is a consultant and established a firm in the name of "American Consultants Inc" and in this capacity he has been associated with a number of projects in U.S.A. The plaintiff came into contact with the defendant through one Waseem Jaffery who was working with the defendant in a responsible capacity of plaintiff's twenty years technical experience. Waseem Jaffery talked to the defendant, who desired to acquire plaintiff's service for obtaining lease rights on a very lucrative and important project of Defence Housing Authority in respect of D.H.A. Cricket and Stadium located at Khayabane-e-Rahat, Phase IV D.H.A., Karachi, comprising 46,976,66 sq yards of land. Before acquiring the services of plaintiff, the defendant has rented the stadium from D.H.A. On monthly rental basis, and was not allowed to make any alternation, addition or repair in the existing stadium. The plaintiff took pain and agony to prepare an International Level Scheme for the Re-development of the Stadium and presented it to D.H.A. Officials including the Administrator, and convinced him to allow a presentation of the scheme to the Board of Directors of the D.H.A. The defendant has registered a
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General Power of Attorney in favour of the plaintiff on 6-1-2000 to handle the entire affairs on his own legally had assured him that once the D.H.A. Shall be fully compensated for his services, and shall be given due share in the project. Finally the plaintiff's proposal was accepted by D.H.A., and they agreed to grant lease of the Stadium for 30 years with renewal of two further terms of 30 years each. The entire scheme of the project was formulated and reduced in writing, one being sub- lease deed dated 2nd day of January 2000, between Pakistan Defence Officers Housing Authority on the one part and defendant on the other part and second being a "financial agreements Modification Agreement" between Pakistan Defence Housing Authority and present plaintiff as attorney of present defendant and such agreements, which contained terms and conditions and financial implications, which were extremely beneficial to the defendant on account of plaintiff's skillful consultancy. 3. It is averred in the plaint that the first of the two agreements created great financial gain to the defendant and the second agreement, took away entire burden from the defendant and created constant gain to the Pakistan Defence Housing Authority on perpetual basis. However, second agreement could not be materialized and consequently no any liability or gain ensured therefrom in favour of Pakistan Defence Housing Authority, Defendant or the plaintiff. It has no existence in the eyes of law, having become infructuous. However, making unreasonable comments, the Defendant cancelled the plaintiff's General Power of Attorney and thrown him out of the project affairs, without any explanation. Moreover, a cheque of Rs,50,000,000 bearing No, 043878 dated 1-2-2001 drawn on Citi Bank, Karachi issued by the Defendant in favour of the plaintiff against the part payment of his consultancy fees was not cashed, and returned by the Bank with remarks "Return to Drawer". The plaintiff contacted the defendant personally for the payment of said amount, the defendant asked for time as he was unable to make payment due to some financial difficulty and asked the plaintiff to wait for some time. However, neither the payment of said amount is made so far nor the said cheque is enchased. The defendant corresponded with the plaintiff and made contradictory statements, on the one hand the defendant appreciated the moves made by the plaintiff and on the other hand asked for return of the cheque while acknowledged on that the plaintiff was assigned to "perform certain functions and work on project." Such functions were not specified by the defendant yet it is established without any doubt that the plaintiff's function was of consultancy and materialization of contract between defendant and Pakistan Defence Housing Authority was the result of such consultancy and consequently plaintiff settled fee for such consultancy was to be paid for which cheque was issued by the defendant as part payment. The defendant has wilfully and deliberately avoided payment of the amount of cheque for Rs,5,000,000 and in addition to payment of the said amount to the plaintiff, the defendant is also criminally liable for, the breach of trust for which the plaintiff prays to this Honourable Court to start criminal proceedings against the defendant if the amount of cheque is not paid by the defendant forthwith. 4. In response to the summons the defendant has filed his written statement denying the allegations levelled in the plaint and raised certain preliminary objections about the maintainability of suit viz. The plaint does not disclose the cause of action; suit is barred under the provisions of Order XXIX & XXX Rules 1 and 10, C.P.C. r/w section 69 of the Partnership Act, 1932; and, suit is barred by misjoinder/non-joinder of D.H.A. As necessary and, mandatory party. Besides the above legal objections raised by the defendant in his written statement, it is submitted that the plaintiff is partner of the firm under name and style of American Consultants, Inc. It is submitted that the D.H.A. Cricket Stadium situated as Khayaban-e-Rahat Phase V D.H.A , Karachi admeasuring 46976.99 Square yards was rented out to the defendant vide agreement dated 3-7- 1991 with existing construction and structures of the stadium. The subsequent sub-lease on revocation of the rent agreement was executed and registered on 2-2-2000 between the D.H.A. And the defendant under the terms and conditions enumerated in the memorandum of sublease
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for entitled period of 30 years (renewable) along with the schedules of payments without any assistance, support, consultancy and without any technical scheme feasibility report prepared by the plaintiff for the purpose. The sub-lease dated 2-7-1991 for initial period of Ten years and the defendant independently discussed, negotiated, finalized and executed the terms of sub-lease with the D.H.A. It is asserted that during the period 1998 and 1999 when the plaintiff met the defendant and he put himself the expert in dealing with such projects and is very influential and effective person to deal with the D.H.A. And he is able to lease out the said property for 99 years on lucrative terms, as such he was authorized vide authority letters dated 10-4-1998 and 23-4-1999 respectively to attend meeting with D.H.A. But soon he proved ineffective in his claim and delayed the issue, therefore the defendant personally negotiated, settled and executed the sub-lease dated 2-2-2000 for 30 years period extendable by two more terms. It is stated that D.H.A. Also refused to correspond with the plaintiff vide its letter dated 31-7-1998. However, the plaintiff was duly paid for his acquired services and no amount is due' against the defendant. 5. It is admitted that the plaintiff was constituted attorney of the defendant vide Registered- General Power of Attorney executed on 6-1-2000 independent to the sub-lease deed executed dated 2-2-2000 to performs specific functions under the terms of the GPA. The specific functions were assigned to the plaintiff to negotiate lease terms and conditions to submit approval of the conceptions drawings. To approve and to present for approval to .All the relevant authorities, the plans of the proposed construction, modifications, alternations and complete there to and secure approval and sanction of the relevant authorities for the same. On completion of prescribed functions the defendant undertook to pay Rs,50,00,000 to the services charges and expenditures cost incurred in respect of constructions plans including additions, alternatives or revise plans from relevant authorities. Therefore, a post-dated cheque was delivered to the plaintiff at the time of execution of GPA therefore the cheque encashment date was set after completion of all functions on 1-2-2001. As to the Financial Arrangement Modification Agreement is concerned it was executed by the plaintiff with the D.H.A. Karachi without authorization of the defendant. The plaintiff neither mentioned the date of execution nor exhibited copy of the agreement, which shows the plaintiff, has concerned the material facts and has not come to this Court with clean hands. It is surprising that the sub-lease was executed on 2-2-2000 and prior to that the plaintiff signed financial arrangement modification agreement on 27-1-2000, which modify the sub-lease. On coming to the knowledge of existence of above Financial Arrangement Modification Agreement, the defendant had written numerous letters to the plaintiff to supply authenticated copy of the said agreement along with all correspondence/ documents made as attorney with D.H.A. Or other authorities, but he intentionally avoided to deliver the required documents. 'It is submitted that the plaintiff has failed to perform functions assigned to him in GPA dated 6-1- 2000, therefore, the defendant revoked the GPA vide Revocation Deed dated 26-8-2000 and intimated to all concerned including the plaintiff and also . Stopped payment of post dated cheque dated 1-2-2001. The defendant also served notice to the D.H.A. Through his counsel dated 13-10- 2000 in regard to unauthorized and unlawful Financial Arrangement Modification Agreement dated 27-1-2000 and revocation of Power of Attorney dated 13-8-2000 in favour of plaintiff. It was further assured to D .H . A . That the defendant is bound to abide the terms of sub-lease as well as the undertaking signed by him. The defendant was also constrained to give undertaking/Confirmation dated 9--2-2001 to save the said property vide sub-lease dated 2-2-2000 by payment of additional amount of Rs,14,700,000 in seven instalments beyond the terms of above sub-lease. 6. It is further submitted that the defendant has not issued post-dated cheque dated 1-2-2001 to plaintiff against any part payment of his consultancy fee and same was not encashed. It is submitted that the time of execution of GPA dated 6-1-2000 in favour of the plaintiff and assigned specific functions for approval, modification, sanctions of the plans of the said property from the
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concerned departments/authorities within period of one year as such post dated cheque Rs, 5 Million was delivered to him in consideration of completion of his job on 1-2-2001, but plaintiff miserably failed to perform his assigned work, contrary to that he misused his authority acted against the interest of the defendant. It is further submitted the plaintiff miserably failed to produce iota of material in support of his claim of consultancy in execution of sublease dated 2-2-2000 and the post dated cheque dated 1-2-2001 was balance fee of consultation. It is submitted that no cause of action accrued against the defendant as such the plaintiff is not entitled any amount as claimed with interest thereon. It is also submitted that since the execution of FAMA and non- performance of functions assigned to the plaintiff, the defendant is suffering from mental shock, mentalstress, ulcer and physical disorders apart from financial losses incurred in form of extra payment of D.H.A. Delayed approval and construction of the plans of the project and payment of Bank markups. The total losses accumulated to the amount of Rs,300 Million. The defendant reserve its right to institute a separate suit for compensation and damages of Rs,300 million as well as Criminal proceedings against the plaintiff. It is submitted that the defendant issued legal notice to the plaintiff dated 10-11-2002 for payment of compensation/ damages, but no response from the side of the plaintiff till today and the above suit is the counter-blast of the notice of the defendant. 7. Out of the pleadings of the parties following issues were framed on 18-5-2005:-- "(1) Whether the plaintiff has exceeded the powers given to him under the power of attorney dated 6-1-2000? (2) Whether the post dated cheque bearing dated 1-2-2001 was not liable to be encashed? (3) What, should the decree be?" 8. After framing of Issues, Commissioner was appointed for recording of evidence. Plaintiff has examined himself as Exh.-P and produced documents as Exh.P.W.1/1 to Exh.P.W.1/11. He was also cross-examined by Mr. Shoukat Hayat, Advocate for defendant. Thereafter defendant Abdul Wahab has filed his affidavit-in-evidence and produced documents as Exh.DW-1 to Exh.DW-22/1. He was cross-examined by learned counsel for the plaintiff Mr.S. Zaki Muhammad. Defendant in support of his claim also examined one witness namely Col. (R) Sulaiman Ahmed Abid. He was also cross-examined by the learned counsel for the plaintiff. 9. I have heard Mr. S. Zaki Muhammad, learned counsel for plaintiff and Mr. Shoukat Hayat, learned counsel for defendant and perused the material available on record as well as the case law cited at the bar. Since both the issues are interconnected, therefore, I will deal together. My findings and reasons are as under. 10. The plaintiff himself appeared in witness-box to prove his case. He produced his affidavit-in- evidence and produced documents as exhibits P. W. 1/1 to P.W.1/11. He reiterated and repeated the facts as mentioned in early part of judgment. In this evidence, the plaintiff admitted that he executed on 27-1-2000 an agreement as attorney or defendant with the D.H.A. Title as "Financial Arrangement Modification Agreement" hereinafter referred as FAMA (Exh. P. W.1/01) which contained terms and conditions and financial implications, which were extremely beneficial to the defendant on account of plaintiff's skilful consultancy for both the agreements. 11. The defendant also appeared as witness and produced his affidavit-in-evidence as DW-1 and documents as exhibits D/1 to D/22. He reiterated and repeated the facts, as per written statement as mentioned in earlier part of judgment. He stated in evidence that he has executed General Power of Attorney on 6-1-2000 (Exh.P.W.1/6) in favour of the plaintiff mentioning the functions at paras. 1 to 3 of General Power of Attorney for his performance. He further deposed that he had also delivered a post dated cheque of Rs,5,000,000 (Rupees Five Million Only) of Citi Bank, Karachi (Exh.P.W.1/1) at the time of execution of General Power of Attorney dated 6-1-2000 encashed on 1-2- 2001 after completion of work assigned to the plaintiff. The defendant further stated in his evidence that the plaintiff by misusing the authority conferred under General Power of Attorney dated 6-1-
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2000 without his knowledge and permission unlawfully in connivance with Secretary D.H.A., Karachi, had executed FAMA dated 27-1-2000 (Exh.P.W.1/8) prior to execution of sub-lease deed on 2-2- 2000 (Exh.P.W.1/4) for payment of extra amount of Rs,1,47,00,000 payable in seven equal instalments of D.H.A. And in case of nonpayment, the whole sub-lease was liable to be cancelled. The, defendant further stated that on the face of FAMA dated 27-1-2000, it is a manipulated documents manufactured after signing the sub-lease deed dated 2-2-2000. He further deposed that plaintiff after realizing the foul play further manipulated record FAMA dated 4-2-2000 in league with the Secretary of D.H.A. As such committed fraud with him. He further stated on oath that the FAMA dated 27-1-2000 and dated 4-2-2000 are the unlawful and unauthorized contracts/ agreements to extort huge amount of Rs,1,47,00,000 by fraudulently under the terms of above FAMA and further payable to the plaintiff vide the schedule mentioned in para-3 of FAMA dated 27-1- 2000. The defendant further stated in evidence that as the plaintiff has not rendered required services mentioned in General Power of Attorney was revoked on 26-8-2000, the plaintiff is not entitled to claim payment of Rs,5 Million of post dated cheque encashable on 1-2-2001 in consideration of services/work of which he had never performed. He repeatedly required the plaintiff to return above cheque and also stopped payment by writing letter to the Bank on 13-3- 2001. 12. The plaintiff in cross-examination admitted that Exh.P.W.1/4 has no concern with present D.H.A. Cricket Stadium Phase-VI. He voluntarily says that he negotiated with D.H.A. On the basis of Exh. P. W.1/4 and Exh. P. W. 1/5 . He admitted signing the two FAMA dated 27-1-2000 and 4-2-2000. The plaintiff admitted that in Para-1 of FAMA dated 4-2-2000 it is mentioned that F.M. Roll No,U-269192 Block--1 dated 2-2-2000 while dated in sub-lease Exh.P.W.1/7, it is mentioned M.F. Roll No,U-269192 dated 9-2-2000. He admitted that he has not filed any conception drawing of sub-lease project with the plaint and affidavit-in-evidence. Voluntarily says that all these documents are part of sub-lease Exh.P.W.1/7. He admitted that he has not exhibited any document in support of assignment of work under clauses 2 and 3 of General Power of Attorney dated 6-1-2000. He denied that he has not brought into the knowledge or, intimated to the defendant of signing FAMAs dated 27-1-2000 and 4-2-2000. The plaintiff admitted that he has approached the DHA to reimburse Rs,1,47,00,000 in his favour without delay which has been deposited by the defendant under FAMA dated 27-1-2000 and 4-2-2000. He admitted that he has filed Suit No,127/2004 against the defendant and DHA in High Court and DHA filed written statement therein Exhs.D/22 and D/23. He admitted that he received letter dated 13-12-2000 from defendant and replied on 12-3-2001. That he had written letter dated 17-8-2002 to the defendant as Exh.D/17. Original letter was produced by defendant. The plaintiff objects the following line:-- "Sir, I admit the mistake of not informing you about this for which I regret it personally." ' The original letter Exh.D-17/1 produced by defendant and plaintiff also produced the copy of the said letter dated 17-8-2002 which is not mentioned the said line in the letter Exh.D-17/2. The plaintiff admitted that the defendant has mentioned his letter dated 17-8-2002 as Exh.D-I3 in his written statement and also in Para-6 as well. He admitted that he had not disputed the letter dated 17-8- 2002 written by him to the defendant in regard to the disputed line. He admitted that legal notice dated 11-10-2002 (Exh. D-18) is in his knowledge. 13. To resolve the controversy whether the plaintiff has exceeded the powers given to him under the Power of Attorney dated 6-1-2000, it shall be convenient to reproduced the General Power of Attorney dated 6-1-2000, FAMA dated 27-1-2000 and plaintiff's letter dated 17-8-2000:- (a) GENERAL POWER OF ATTORNEY 'KNOW ALL MEN BY THESE PRESENTS THAT I, ABDUL WAHAB S/0 ABDUL RAZZAQ, Muslim adult, holding NIC No,510-64-125568, resident of 18-C, ' Commercial Area, Lane No,3, Main Zamzama Boulevard Defence Housing Authority, Karachi, do hereby send greetings:--
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' Whereas a contract entered into a lease agreement in respect of an Immovable property identified as DHA Cricket Stadium, located at Khayaban-e-Rahat, Phase VI, DHA, Karachi comprising 46976.66 Square Yards of land or thereabout together with existing construction and structures thereon, hereinafter referred to as the Said Property, between Pakistan Defence Officers Housing Authority and Abdul Wahab s/o Abdul Razzak and Lease is to be executed in favour of Abdul Wahab for the use as a Cricket Stadium and multiple Sports facilities. ' And Whereas in case I am not able personally to enter with the Lease Agreement in respect of the said property with Pakistan Defence Officers Housing Authority. ' NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS THAT I, do hereby nominate, constitute, appoint and authorize to Mr. S. Imtiaz H. Rizvi son of Late Syed Naseer H.Rizvi, Muslim adult, holding NIC No,502-88-713563, resident of Suit No,302, Aamir Trade Centre, Crossing of Shahrah-e-Quadeen and Tariq Road, Karachi, on and behalf of Messer American Consultants INC, as my duly constituted and lawful attorney in my name, for me and on my behalf to look after and manage the said property more particularly to do all or any of the following acts, deeds, things and matter namely:-- (1) To present me for getting the DHA Stadium of long terms lease for the purpose he can do presentation, attending the meeting with DHA Officials, Negotiation Lease terms and Conditions submit approval of conception drawings. However he is not authorized to sign on Lease Agreement/Contract, cheques on my behalf also he not taking any loan, therefrom this Power of Attorney is only confined for DHA Cricket Stadium, Khayaban-eRahat, Phase VI, DHA Karachi. (2) Approve and to present for approval to all the relevant authorities the plans of the proposed construction, modifications, alterations and complete thereto and to secure approval and sanction of the relevant authorities for the same. (3) To serve, send, receive and accept all notices and communications from all sources in respect of the said plot of land with or without building thereof and to send or ignore to send replies to them and/ or expedient by my said Attorney. This includes the power to receive notices of completion of the proposed building on the said plot and to respond or ignore to respond to the terms thereof in sole discretion and without any reference to me. ' AND GENERALLY TO PERFORM AND EXECUTE ALL the lawful deeds, acts and things which my said attorney may do in respect of the said property in matters and things referred to above and for the purpose specified therein by virtue and on the strength of these presents. 'IN WITNESS WHEREOF I have set and subscribed it on my hand on the 6th day of Jan. 2000." "(b) FINANCIAL ARRANGEMENTS MODIFICATION AGREEMENT ' THIS AGREEMENT is made on this 27th day January 2000 at Karachi. 'BETWEEN ' THE PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY established under Article 4 of Pakistan Defence Officers Housing Authority Order, 1980, having its Office at 2/B, East Street, Phase-I, Defence Housing Authority, Karachi through its Secretary Col. (Retd.) ATHER ALI KHAN S/O MUKKARAM ALI KHAN (hereinafter called Lessee) of the First Part. AND ' MR. SYED IMTIAZ H. RIZVI S/O LATE SYED NASEER H. RIZVI holding NIC No,502-88- 713563 ATTORNEY of the sub-Lease, doing business under the name and style of American Consultants INC., at Suit # 302, Aamir Trade Centre, Crossing of Shahrah-e-Qaideen & Tariq Road, P.E.C.H.S, Karachi (hereinafter called the Attorney of the Sub- lessee) which term shall include their respective heirs, successors & assigns of the SECOND PART. (1) Whereas the Lessee has signed a Lease Agreement with the sublease of DHA Cricket .Stadium located at Khayaban-e-Rahat, Phase-VI,, DHA, Karachi comprising 46976.66 Square Yards of land
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or thereabout and registered vide registration No,291 MF Roll No,U269192, Book No, 1 dated 2-2-2000 in the office of the Sub-Registrar T-DIV (2A) Karachi; (2) AND, WHEREAS it had been agreed in an undertaking by the sub-leasee that the sub-lessee would pay additional sum of Rs,2,100,000 (Rupees Two Million One Hundred Thousand Only) to the Lessee with each lease Payment for seven consecutive arrangements thus making a total sum of Rs,14,700,000 (Rupees Fourteen Million and Seven Hundred Thousand only). And whereas this undertaking takes care of the medications made in the Lease Agreement for the convenience of making financial arrangements. (3) AND, WHEREAS the financial arrangements have been made by the sub-lessee in a way that the seven consecutive additional six monthly payments of Rs,2,100,000 each (making a total of Rs,14,700,000) would be received by the Lessee direct from the sublessee, the lessee undertakes to reimburse all such payments on encashment without any undue delay to Messrs American Consultants INC., through crossed cheques/pay order against Bank Guarantee from a scheduled Bank which will be released proportionate to the amount received from Messrs American Consultant INC. All expenses on account of…
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