1995 PLP 707 (CLC)

15. That it will be in fact the defendant No. 1 which shall be seriously prejudiced and shall suffer irreparable loss if the application of the plaintiff is granted and the defendant No. 1 is restrained from carrying on the production of sugar, molasses, and alcohol, at the TSM or from selling or otherwise disposing of the stocks of the same. It is submitted that the stocks lying at the TSM are perishable goods and if the defendant No. 1 is restrained from selling or disposing of the same, they are likely to be wasted resulting in considerable loss to the Government and the national exchequer. It is submitted that restraining the defendant No. 1 from operating the TSM and carrying on production at the same would result in even greater loss to the Government and national exchequer in terms of loss of revenue in addition to causing great hardship to the workers/labouers at the TSM and the growers of sugarcane in the neighbouring area whose livelihood depends upon the operation of the TSM. In pursuance of the decisions taken in the Meeting dated 8‑8‑1994, the defendant No. 1 had to pay out three gross salaries of the employees/workers of the TSM from the working capital granted to it by the Government after the possession and management of the TSM was restored. The defendant No. 1 has so far been able to pay only two gross salaries to the workers/employees of TSM and the third salary still remains to be paid. It is submitted that if the defendant No. 1 is now restrained from disposing of or selling the stocks lying at the TSM, it would be unable to make up the deficiency in its working capital and would therefore be unable to operate the same to the detriment of all concerned. Such restraint would also result in the defendant No. 1 defaulting in the payment of salaries to the workers/labourers at the TSM which may lead to further serious problems. The defendant No. 1 is also facing considerable pressure from the workers/employees in this regard as is evident from the telex dated 26‑9‑1994. The balance of convenience thus lies in the dismissal of the application cannot be granted any injunctive relief as prayed as it for damages/compensation in the plaint. It is according to the own admission of the plaintiff, compensation/damages in money would be an adequate relief, it cannot be granted any relief by way of an injunction. Even otherwise, the injunction prayed for cannot be granted in view of the provisions of section 56 of the Specific Relief Act, 1877."

5. Their contentions are (i) that Thatta Sugar Mill was never sold to the plaintiff. The plaintiff was merely given management of the TSM pursuant to the Memorandum of Understanding dated 11‑11‑1992 and that the parties railed to reach an agreement and thus there was not even a valid, concluded, or binding contract between the. parties for the sale of TSM; (ii) that the ownership of and property in the TSM still vests in defendant No. 1 which therefore has full authority to operate it; (iii) that defendant No. 1 is the lawful owner of TSM and the stocks of sugar, mollasses and alcohol, and is fully entitled to sell or dispose of the same; (iv) that the stocks lying at the TSM are perishable goods and if the defendant No. 1 is restrained from selling, disposing of the same, which are likely to be wasted resulting in considerable loss to the Government and the national exchequer; (v) that restraining the defendant No. 1 from operating the TSM and carrying on production at the same would result in even greater loss to the Government and national exchequer in terms of loss _of revenue in addition to‑causing great hardship to the workers/labourers at the TSM and the growers of sugarcane in the neighbouring area whose livelihood depends upon the operation of the TSM; (vi) that the plaintiff cannot be granted any injunctive relief as it itself has prayed for damages, compensation in the plaint; (vii) that according to the plaintiff's own admission the compensation/damages in money would be an adequate relief, which cannot be granted by way of any injunction; (viii) that even otherwise injunction as prayed for in view of sections 56 of the Specific Relief Act; is barred; (ix) that tender of the plaintiff was accepted and was subject to further negotiations; (x) that there is no any documents to show that the property was transferred to the plaintiff; (xi) and that if the agreement is not concluded the relief i.e. the interlocutory application cannot be granted.

6. Here in this case also the plaintiff has claimed damages in the main suit sub‑clauses (i), (ii) and (iii) of clause (f) are reproduced as under:‑‑ "(i) payments made to the defendant as per paragraph No. 35 of the plaint: Rs. 58,353,067 (ii) Various expenses incurred by the plaintiff in pursuance of the contract as stated above in paragraph 36 of the plaint Rs.58,159,864

Total Rs.116,512,931

(iii) Loss of Profit Rs.20 million caused by taking over of TSM.

7. They further contended that as the plaintiff has claimed damages in his suit as mentioned above. it would show that loss, if any sustained by him could be ascertained in terms of money, thus he is not entitled to grant of injunction.

8. In support of their contentions they have cited following authorities:‑ (1) PLD 1982 Karachi 76‑‑Case of Messrs Shalsons Fisheries Ltd. Karachi v. Messrs Lohman & Co.; (2) PLD 1967 Karachi 372‑‑Case of Bachu Bai F.E. Dinshaw v. Commissioner of Income‑Tax. (3) PLD 1.972 Lahore 847‑‑Case of Ch. Muhammad Younus v. The Islamic Republic of Pakistan. (4) PLD 1993 Kar. 190‑‑Case of Pakistan International Airlines Corporation v. Mis. Hazir (Pvt.) Ltd. (5) PLD 1992 Karachi 17 relevant at page 20‑‑Case of Muhammad Raza v. Haji Abdul Ghaffar.

9. The cases cited by the learned counsel for the parties in this matter are the final decision of the case and involve interpretation of provisions of Contract Act, Transfer of Property Act and Specific Relief Act. I therefore advisedly refrain from discussing the authorities and recording my conclusion because evidence is still to be led and the contention and dispute have to be examined in depth. Any expression of opinion at this stage may prejudice either of the parties in having a fair trial. would therefore confine myself to the disposal of the application m hand,

10. I would to refer a case of AKMIDC UNITS, Muzaffarabad, etc. v. Moin‑ud‑Din (1987 MLD 1055). In the case learned Single Judge upon consideration of respective contentions of the parties held as under:‑ "To constitute an agreement, it is necessary that there should be an unconditional offer and it is accepted by the competent authority and after the constitution of the agreement, the right to the parties accrue. In the present case, the respondent No. 1, no doubt, made an offer to purchase the Mill, provided an area of the land measuring 371 Kanals was also given to him and the Committee, without accepting the conditions recommended the offer. This recommendation, I believe, could not have been accepted because the tender offered to purchase the Mill, provided his condition was accepted but the recommending body i.e. the Committee did not approve of the rnnr1itinn_ hence it was not possible for the Government to accept its unless the tenderer was asked to forego the condition. Be that `as it may, as it transpires from the record, the offer has not been accepted, hence the agreement has not come into being, therefore there accrues no right to the respondent No 1 on the basis of his offer:'

12. Likewise in this case no final agreement was concluded between the parties and even agreement was not reduced in writing by the parties. Mere signing of the Memorandum of Understanding cannot be held as a valid A agreement in the eyes of law.

13. As no agreement was finalized no legal or valid right to the plaintiff accrued on the basis of Memorandum of the Understanding. 14. (ii) There is also a decision of D.B. of this Court in H.CA. No. 80/92, reported in P1.D 1993 Kar. 190 (PIA v. Mis. Hazir (Pvt.) Ltd. and another):‑ In this case their Lordships have observed as under:‑ "The learned Single Judge failed to take into consideration the far -reaching financial and administrative consequences which were to ensue from his order. The natural consequences which will ensue and with little application of mind, it can be visualized by any man of ordinary prudence, are as follows:‑ (1) The eight hundred employees would be deprived of the facilities. (4) Uncertainty would prevail amongst the employees of the appellant. No one can be sure about the outcome of the litigation. (5) 'Uncertainty would prevail amongst the persons running or have experience in operating Fast Food Services. No one can be sure about the outcome of the litigation. Consequently, the persons who are running or operating Fast Food Services would be slow to come and bid at the invitation of tenders of the appellant. (6) The entire working of the appellant would be disturbed. This would result into demoralisation of the administration and also result into escalation of cost, the cost which will have to be ultimately borne by the passengers. In such cases, even temporary order can cause havoc and bring about a statement or chaotic situation." 16. (iii) I would also like to refer the case of Muhammad Ashfaque v. Govt. of the Punjab (PLD 1981 Lahore 752) relevant page

755. His Lordship has held as under:‑‑ "

7. Having given consideration to the controversy involved I am of the view that no case is made out by the petitioner for interference by this Court in the orders of the Courts below in exercise of the revisional jurisdiction. It has been very aptly pointed out by the learned counsel for the respondents that the mere presence of a prima facie case or arguability thereof will not by itself be a ground for issuing a temporary injunction. It is by now well settled that the three conditions viz. the existence of a prima facie case, the irreparability of loss, and balance of convenience must co‑exist before the temporary injunction could be allowed in a matter." 8.It may also be observed that the issue of a temporary injunction whereby the functioning of a Government Department is likely to be hampered has also to be considered very seriously before the injunction is issued. This aspect has been duly discussed in a number of authorities, some of which have been cited by the learned counsel for the respondent and 1 am m respectful agreement with the principle laid down in this respect." 17.(iv) I would also like to refer to 1985 CLC 261, Aijaz Hussain Bhatti and another v. Haji Bagh Ali and 9 others where it has been held that "plaintiffs failing to make out a prima facie case of grant of temporary injunction‑‑Delaing with questions of irreparable loss or injury and balance of convenience". 18. (v) In the case of Ch. Ali Akbar v. Province of Punjab through Collector, Faisalabad (1987 MLD 358) it has been held "plaintiff showing prima facie case but not fulfiling other, two conditions qua balance of convenience and irreparable damage not entitled to temporary injunction during pendency of suit.

19. Here in this case also not only hundreds of employees would be deprived of their livelihood but sugarcane growers of the area will also suffer an irreparable loss, with the result that this might cause havoc and bring about a statement or a chaotic situation in the area.

20. Besides the points raised in this application relate to functioning of a Government Department is involved and if the injunction is granted normal functioning of a Government Department would be largely hampered and many difficulties and complications would arise which would also result in demoralisation of the administration.

21. I have gone through the material on record and the case‑law cited by both the learned counsel for the parties and have also applied my mind and come to the conclusion that so far the grant of injunction is concerned the plaintiff has failed to prove existence of three requisite conditions. viz. prima facie case, irreparable loss and balance of convenience, if any. If any of the ingredients of out of these three conditions is missing, injunction cannot be granted. Prayer of the plaintiff that the defendant be restrained from operating TSM and/or carrying any activity in relation to production of sugar, mollasses and alcohol would not furnish any relief to they plaintiff at all and on the contrary it will be an overall loss of national exchequer in terms of loss of revenue and cause great hardship to the workers/labourers of the TSM and the growers of sugarcane in the neighbouring area whose livelihood depends upon the operation of the TSM.

22. So far the prayer for restraining the defendants from sale or otherwise disposing or removing any stock of finished or half finished of sugar, mollasses and alcohol from the premises of the mill is concerned it is pertinent to note that the stock of finished or half finished sugar, mollasses and alcohol are all perishable goods and if the defendants are restrained from selling or disposing of the same they are likely to be wasted or perished, resulting in considerable loss to the Government and the national exchequer.

23. Upshot of the above discussion is that the plaintiff has neither an arguable case nor does the balance of convenience, lie in his favour. He is not likely to suffer an irreparable loss/injury as he has claimed damages in terms of money. Keeping in view the case‑law cited above and the facts and circumstances discussed above this application, is dismissed, interim order of injunction stands recalled. A.A./M‑2041/K Application dismissed.