SUITE FOR RECOVERY & DAMAGES.
IN THE COURT OF SENIOR
CIVIL JUDGE SOUTH AT KARACHI.
Civil Suit
No. /2015
Zeenex International,
Through its Proprietor Kamran Yousuf,
having Office at, Suite No: 1/1,
Bagh-e-Rizwan, Block-16, Gulshan Iqbal,
Karachi. ……
PLAINTIFF
VERSUS
1. Wateen WiMAX (Pvt). Ltd.
having offices at:
a) Karachi Office – Wateen WiMAX
Parsa Tower, 6th Floor, Plot # 31-1-A,
Block-6, P.E.C.H.S, Main Shahra-e-Faysal,
Karachi.
b) Head Office - Watten House,
Main Walton Road, Opposite Baab-e-Pakistan,
Walton Cantt, Lahore.
2. Augere Pakistan (Pvt) Ltd
Having Network under brand “QUBEE”
Pakistan, office at 10th Floor, WTC,
Khayaban-e-Roomi, Clifton, Block-5,
Karachi. ………… …….. DEFENDANT
SUITE FOR RECOVERY &
DAMAGES.
That the plaintiff respectfully submits as under:
1. That the plaintiff above named is a Telecom Contractor and a
Network Engineering Company. It uses, to provide services for telecom network
constructions and network up-gradations in telecom industries. Copy of NTN is
attached herewith as Annexure “P”.
2. That the defendant No:1 & 2 are companies, which provide converged communication services that include a Internet
Broadband, Multimedia, Telephony and Enterprise Solutions, in Pakistan. Few
years back “WiMAX” as a new 4G technology was introduced in Pakistan, thereon
to have business exposure and in the year 2014, the defendant No. 01 & 02
had announced merger for their consolidated WiMAX operations. (WiMAX is a
technology which does not require telephone lines or cables to get connected to the Internet World)
3. That for up-gradation the said project of consolidated WiMAX
operations, the defendant No. 01 had called quotations publically thereon the
plaintiff had submitted a quotation for Total CHARGES per ONE UNIT & ONE
SITE which is attached herewith as Annexure “P1”.
4. That thereafter as an acceptance and as a manifestation of mutual
assent, the defendant No. 01 had issued two work orders (1) No: 80020 dated:
25-September-2014 & (2) No: 80022 dated: 26-September-2014. The copies of
same are attached herewith as Annexure “P2” & “P3”. It is pertinent to
mention here that the first work order was for up-gradation of 109 sites and
second work order was issued for up-gradation of 15 sites. Further the given
Jobs to plaintiff were up-gradation like site survey, transportation, RRU &
Antenna Installation Activity. The detail of Sites, where plaintiff completed
jobs, under obligations of said worked orders, are as under:
S
|
Site ID
|
BS Name
|
City
|
Address
|
01
|
AKMB004
|
Power
House, F. B Area
|
Karachi
|
Akhter
Husain Compound, Plot No.L16, Block-2, FB Area, Karachi.
|
02
|
AKMB114
|
Bahadur
Shah
|
Karachi
|
Bahadar
Shah Centre, temple Market, Gilani Lane No.1, Urdu Bazaar, Karachi.
|
03
|
AKMB030
|
Malir-2
|
Karachi
|
House
NO.B-544, Area B, Malir Township, Karachi.
|
04
|
AKMB040
|
Sea
World Residency
|
Karachi
|
Sea
World Residency, Plot No. CA-1, Block No.6, KDA Scheme No.5, Clifton,
Karachi.
|
05
|
AKMB041
|
BBQ
Tonight
|
Karachi
|
Bar
B Q Tonight, Plot No; GPC-5, Improvement Scheme No.5, Clifton, Karachi.
|
06
|
AKMB055
|
Rabia
Ispahani
|
Karachi
|
Abul
Hasan Isphani Road, Near Sohrab Goath, Karachi.
|
07
|
AKMB056
|
Chappel
Bright
|
Karachi
|
Chappal
Bright, Plot No. 9/2, Hasrat Mohani road, Near 3 Talwar. Karachi.
|
08
|
AKMB057
|
Karachi
Arts Council
|
Karachi
|
Karachi
Arts Council
|
09
|
AKMB063
|
Ept.
System F B Area
|
Karachi
|
W.S.A-2,
Block-12, KDA Scheme, F.B.Area, Karachi.
|
10
|
AKMB066
|
Afzal
Apartment
|
Karachi
|
Afzal
Apartments, Time Medicos, Stadium Road, Karachi.
|
11
|
AKMB069
|
Behbood
e Abadi Karachi
|
Karachi
|
Plot
No.179-b, Sindhi Muslim Cooperative, Near Nursery Signal, Karachi.
|
12
|
AKMB070
|
Jamia
Tajdar Madina, Gulistan Joher
|
Karachi
|
Plot
No. ST-11-A, Block-14, Scheme 32, Gulistan Joher, Karachi.
|
13
|
AKMB071
|
Taj
Baba Market
|
Karachi
|
Taj
Bibi Market, Paposh Nagar, Paposh Chorangi, Karachi.
|
14
|
AKMB072
|
Al
Mujtab Pride, Opposite Noble Heights
|
Karachi
|
Al
Mujtaba Pride, CA-7, Chandni Chowk, Main University Road, Opposite Noble
Heights, Karachi.
|
15
|
AKMB074
|
Sana
Apartments
|
Karachi
|
Plot
No. 395/4, Garden East, Karachi.
|
16
|
AKMB075
|
Hameem
Apartments.
|
Karachi
|
Hameem
Apartments, 13-D2, Gulshan Iqbal.
|
5. That after release of work order by defendant No.01, the plaintiff
lead the start of process up-gradation of Sites / telecom installations within
the specifications, guidelines & technical requirements given by technical
team of defendant No. 01, which was consisting of one Initiator, two Network
performance engineers & one General Manager. Thereafter upon completion of
60% Job out of total, the technical team of defendant No. 01 had issued the
work completion certificate to plaintiff and upon further completion of
Jobs up to 90%, the technical team of defendant No. 01 had further issued
Provisional acceptance Certificates. Finally upon 100% work done by the
plaintiff, the technical team of defendant No. 01 had issued final acceptance
certificates. The Copies of All certificates issued by defendant No: 01 “P4”
are attached as Annexure “P4” “P5” “P6” “P7” “P8” “P9” “P10” “P11” “P12” “P13”
“P14” “P15” “P16” “P17” “P18” “P19” “P20” “P21” “P22” “P23” “P24” “P25” &
“P26”.
6. That during work / Job and as per agreed condition between the
defendant No.01 & plaintiff, the plaintiff had issued bill for first
installment up to 60% amounts, thereafter for second installment of 30% of
remaining amounts and also for 10% which was to be third last & final
installment, against both / subject work orders. According to office requirements of
defendant No. 01, the plaintiff was supposed to submit all originals / work
completion certificates, provisional acceptance and final acceptance certificates
along with Copies of Bills / Invoices for payments against subject work orders.
Thereon the plaintiff did this and issued bills / invoices of total due
payments / charges of amounts Rs: 4707285/= [2421045+ 1193940 + 1092300 = Rs: 4707285/= Total forty Seven Lac
Seven thousand & two hundred eighty five]. Copies of Bill duly received by
office staff of defendant No. 01 are attached herewith as Annexure“P27” “P28”
“P29” “P30” “P31” “P32” “P33” “P34” “P35” “P36”.
7. That as per agreed terms the defendant No:1 was bound to pay first installment within 15 days, second
installment within 30 days & third installment within 25 days of demand by issuance of bills. But for fraudulent gains the
defendant No. 01, willfully and deliberately, delayed in releasing the due
amounts / charges of plaintiff and kept the plaintiff to continue the job of
subject work orders until it is finished.
8. That the defendant No.01 & defendant No. 02, both had merger
therefore all paper work was being done by defendant No. 01 and sites, where
the plaintiff performed job, were in ownership of defendant No. 02. Both
defendants had settled what? Internally, is best known to them. The first and
last payment, up till now, against subject work orders, is released after deduction
of tax by defendant No. 02 to plaintiff through cheque No: SA0066105618,
dated 08-January-2015, is Rs: 0726314/= [Seven Lac twenty six thousand three
hundred and fourteen rupees]. Copy of Cheque & tax deduction certificate
are attached herewith as Annexure “P37” & “P38”.
9. That thereafter neither the defendant No. 01, nor the defendant
No. 02 paid heed to release any amount to pay off remaining charges which are
Rs: 3980971/= [Thirty nine Lac eighty thousand nine hundred and seventy one rupees
only]. Though the plaintiff had approached personally by visiting offices of
both of the defendants, several time.
10. That most common mean between the plaintiff and defendants to
correspond on any issue was use of Email. Documents, certificates, bills,
invoices, messages, were made exchanged also by scanning the originals and sent
through Email. In good faith and by making coordination with the defendants,
the plaintiff completed jobs of subject work order. But upon the matter of
fulfillment of liability of defendants for due payments, the attitude of
defendants was negative. Thereon the plaintiff sent a letter on 05-August-2015
for demand of dues Rs: 3980971/= to defendant No.01 and thereafter with no
reply from defendant side, the plaintiff re-sent the letter on 15-August-2015.
Thereafter on 19-August-2015 the plaintiff had sent again his demand through
Advocate Akhlaq Ahmed Qureshi to defendant No. 01 and after this, the defendant
No. 01 replied through letter dated 21-August-12015. The main contention of
said reply is reproduce as under:
“We would like to bring in your notice that your organization was
nominated for network up-gradation project of Augere Pakistan (Pvt) Limited
(Qubee), accordingly 1st installment of your project payment
net of applicable taxes amounting to rupees Rs: 653683/= was released by Qubee
dated January 8th 2015. We request you to take your
matter directly with Qubee for the claim of your balance payment”.
Thereafter, the plaintiff in pursuance of reply of defendant No.
01, preferred to send letter dated 26-August-2015 to defendant No.02 for his
demands and in response, the defendant No. 02 had replied through letter dated
18-September-2015, the main contention of letter is reproduced hereunder:
“Please note that initial payment of PKR Rs:653,683/= was also
made on behalf of Wateen against which the request funds were duly provided to
Augere Pakistan by Wateen”.
Thereon the plaintiff had also sent / conveyed, the response given
by the defendant No.02, to defendant No. 01 through letter dated
01-october-2015. Copies of letter are attached herewith as Annexure “P39” “P40”
“P41” “P42” “P43” “P44” & “P45”.
11. That the element of ill will, fraudulent, oppressive and malicious
conduct at the part of defendant No.01 & 02, may be considered through
element that when the subject Job / work of plaintiff was going on, the
plaintiff had demanded 1st installment, 2nd installment and also plaintiff had issued bills / invoices, but at
that time defendants had not refused to pay their liability. But when the
subject work / job became finished, they started to delay and thereafter the
defendants by excluding oneself, started to shift liability to pay upon other.
12. That plaintiff has limited sources & funds. By investing funds
/ sources in one project he earns his business and thereafter upon completion
of this project and by getting released his funds from earlier project, he use
to invest in new project. Since the defendants have not released the
plaintiff’s outstanding amounts / charges / funds, the plaintiff is facing
losses which are effecting directly over future earnings of plaintiff.
13. That in-spite of full knowledge of said losses to plaintiff, the
defendants have failed, avoided and or neglected to settle the claim of
plaintiff, who have pressed his demands for payment of claim repeatedly even by
going personally or by visiting at the office of defendants.
14. That the plaintiff holds responsible to defendant No; 01 who
executed / issued all documentations for subject work orders and also to
defendant No: 01 who is owner of work places / sites where the plaintiff, under
obligation of subject work orders” did his job. And in pursuance of facts &
circumstances, the defendants jointly or severely are liable to pay Plaintiff
RS: 03980971/= [Thirty nine Lac eighty thousand nine hundred and seventy one
rupees only].
15. That the defendants have stopped the funds of plaintiff willfully
& have got invested these funds in their business assets. They are earning
on daily basis from these funds / assets. Thereon the defendants are also
liable to pay in terms of profit accrued from the funds of plaintiff, for
Contd…………P/10
which the plaintiff has assessed and evaluated it to the tune
& at the rate i.e @ 20% per year.
16. That to get out of worst circumstances created by the defendants,
the plaintiff has faced disappointment, mental torture, emotional distrust,
tension, risk to his investment, risk to future earnings and also he has
suffered monetary losses for which he has become under debt for ongoing
business / project in hand. The defendant No.01 & 02 are also bound to
compensate for same. For which the plaintiff has assessed and evaluated it to
the tune of Rs: 100,00,000/= [Ten Million].
17. That upon no avail to plaintiff for efforts to settle his claim
personally with defendants by visiting their offices repeatedly, the plaintiff
preferred to send legal notice for which the defendants replied as they are not
liable for payments. Due to same, the plaintiff is compelled to be indulged in
civil litigation. Thereon the plaintiff also holds responsible to defendants
for cost of bringing suit in court, for which he has assessed and evaluated it
to the tune of Rs: 02,00,000/= [Two hundred thousand only]
18. That the plaintiff is left with no other option except to get his
right secured this honorable court and in this regard and in consideration of
aforesaid facts the plaintiff is entitled for recovering of Rs: RS: 03980971/=
[Thirty nine Lac eighty thousand nine hundred and seventy one rupees only] with
interest rate i.e @ 20% per year with consequential liabilities / damages of
worth Rs: 100,00,000/= [Ten Million], and also for cost of bringing suit in
court, Rs: 02,00,000/= [Two hundred thousand only].
19. That the cause of action arose firstly on 25-September-2014 &
26-September-2014 when the defendant No.1 issued two work orders in the name of
plaintiff and thereafter on 18-November-2014, when the plaintiff issued first
bill / invoice to defendant No; 01 and thereafter on 08-January-2015, when the
defendant No: 02 released first payment in the name of plaintiff. Further on
21-August-2015 & on 18-September-2015, when the defendants by excluding
oneself, started to shift liability to pay upon other and the same is still
continued with losses naturally arose to plaintiff in usual course.
20. That the main office address of defendant No.02, from where the
defendant No: 02 carries the business, and also from where, as a
manifestation of mutual assent, the 1st payment to plaintiff against subject work orders, is released, is
within the jurisdiction
of police Station, which falls within territorial jurisdiction of
this Honorable court.
21. That for the purpose of court fee and jurisdiction, the suit is
valued of RS: 01,41,80971/= and the maximum court fee is affixed on the memo of
plaint.
PRAYER
The plaintiff therefore prays for the judgment & Decree as
under:
A. By way of money decree direct the defendants, jointly or
severally, to pay Rs: 03980971/= [Thirty nine Lac eighty thousand nine hundred
and seventy one rupees only] with interest rate i.e @ 20% per year with
consequential liabilities / damages of worth Rs: 100,00,000/= [Ten Million] and
also for cost of bringing suit in court, Rs: 02,00,000/= [Two hundred thousand only].
B. Grant permanent injunction / status quo in favor of the plaintiff thereby restraining the
defendants, their agents, subordinates, legal heirs, to not do anything to
frustrate the attainment of legal right of plaintiff or by changing the nature
of work done by the plaintiff or from creating third party interest by assigning
same nature of work to anybody else over installation of defendants where the
plaintiff was assigned.
C. Grant any other or better relief or reliefs which This Hon'ble
Court may deem fit and proper under the circumstances.
Karachi. PLAINTIFF
Dated; 22/10/2015.
ADVOCATE FOR THE PLAINTIFF
VERIFICATION
I, Kamran Yousuf S/O Sultan Aalam Khan, Muslim, Adult, having
Office at, Suite No: 1/1, Bagh-e-Rizwan, Block-16, Gulshan Iqbal, Karachi, do
hereby state on oath and Verify that whatever has been stated above in plaint
are true and correct to the best of my knowledge and belief.
Karachi. DEPONENT
Dated; 22/10/2015.
The deponent is identified by me.
ADVOCATE.
Solemnly affirmed before me at Karachi on this 22nd day of October 2015, by the deponent abovenamed who is
identified by Mr. Farhan Khaliq Anwer Advocate who is known to me
personally.
COMMISIONER FOR TAKING AFFIDAVITS.
Documents
filed. :
Annexure "P" to "P45".
Documents relied
upon : All relevant
documents.
Address of the
Plaintiff :
As mentioned in Title.
Address of the Plaintiff's
Counsel. :
As mentioned in Vakalatnama.
IN THE COURT OF SENIOR
CIVIL JUDGE SOUTH AT KARACHI.
Civil Suit
No. /2015
Zeenex International,
Through its Proprietor Kamran Yousuf, ……
PLAINTIFF
VERSUS
Wateen WiMAX (Pvt). Ltd & One other. ….. DEFENDANT
APPLICATION UNDER ORDER 39
RULES 1 & 2 C.P.C
R/W SECTION 151 CPC
For the facts and reasons disclosed in accompanying affidavit it
is respectfully prayed on behalf of the plaintiff that this honorable court may
be pleased to grant injunction / status quo in favor of the plaintiff thereby
restraining the defendants, their agents, subordinates, legal heirs, to not do anything to frustrate the attainment of legal right of
plaintiff or by changing the nature of work done by the plaintiff or from
creating third party interest by assigning same nature of work to anybody else
over installation of defendants where the plaintiff was assigned, in breach of contractual obligations involved in this matter.
Ad-interim order is highly solicited.
Karachi.
Dated: Advocate
for Plaintiff.
For Immediate use in
Court.
IN THE COURT OF SENIOR
CIVIL JUDGE SOUTH AT KARACHI.
Civil Suit
No. /2015
Zeenex International,
Through its Proprietor Kamran Yousuf, ……
PLAINTIFF
VERSUS
Wateen WiMAX (Pvt). Ltd & One
other. ….. DEFENDANT
AFFIDAVIT IN SUPPORT OF
APPLICATION
U/O 33 RULE 1&2
I, Kamran Yousuf S/O Sultan Aalam Khan, Muslim, Adult,
holding NIC: 42101-6546116-3, having Office at, Suite No: 1/1, Bagh-e-Rizwan,
Block-16, Gulshan Iqbal, Karachi, do hereby state on oath as under:
1. That I say that I am plaintiff in above said case as such am fully
conversant with the facts of the case.
2. That I say that the accompany application under order 39 rule 1
& 2 CPC has been moved on express instructions of the Plaintiff and the
contents of the same as well as plaint may kindly be treated as part and parcel
of this affidavit.
3. That I say that I have serious apprehension that in breach of
contractual obligations, the defendants will try to frustrate the attainment of my legal right or to negate my
claim they will try to change nature of work done by me or they will create
third party interest by assigning same nature of work to anybody else over
installation where I was assigned job.
4. That I say that I have good prima facie case and balance of
convenience lies in my favor.
5. That I say that until unless the accompanying application is
allowed I shall seriously be prejudiced.
6. That I say that whatever stated above is true and correct to the
best of my knowledge and belief.
Karachi. DEPONENT
Dated; 22/10/2015.
The deponent is identified by me.
ADVOCATE.
Solemnly affirmed before me at Karachi on this 22nd day of October 2015, by the deponent abovenamed who is
identified by Mr. Farhan Khaliq Anwer Advocate who is known to me
personally.
COMMISIONER FOR TAKING AFFIDAVITS
IN THE COURT OF SENIOR
CIVIL JUDGE SOUTH AT KARACHI.
Civil Suit
No. /2015
Zeenex International,
Through its Proprietor Kamran Yousuf, ……
PLAINTIFF
VERSUS
Wateen WiMAX (Pvt). Ltd & One
other. ….. DEFENDANT
ADDRESS OF PLAINTIFF
Zeenex International,
Through its Proprietor
Kamran Yousuf,
having Office at, Suite No:
1/1,
Bagh-e-Rizwan, Block-16,
Gulshan Iqbal,
Karachi.
ADDRESS OF ADVOCATE FOR
PLAINTIF
Mr. Farhan Khaliq Advocate.
Farhan Khaliq Anwer &
Co,
(Advocates & Legal
Consultants)
Suite No.15, Clinic Side, 6th Floor, Rimpa Plaza,
M.A.Jinnah Road, Karachi-
74400.
Cell: 03002165271
E.Mail: duaapk@hotmail.com
Karachi.
Dated: Advocate
for Plaintiff.
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