1999 PLP 1434 (MLD)

Dear Sirs, Bunga Kesumba Voy.668 at Karachi 7th June, 1996 B/L No.KL/PGA 1-6. Alleged shortage of 71.202 m/t RBD Palm Oil. In consideration of your consenting to' refraining from taking action resulting in the arrest of the Bunga Kesumba or any other ship or property in the same or associated ownership, management, possession or control, we hereby guarantee payment to you, within 14 days of your demand, or such sums as the owners of the Bunga Kesumba may be found legally liable to pay you by the Islamic Republic of Pakistan Court or as may be agreed to be recoverable from the owners of the Bunga Kesumba in respect of your claim for alleged shortage of 71.202 m/t of RBD Palm Oil discharged at Karachi on 7th June, 1996 provided that our liability under this guarantee shall not exceed US $90,000 (United State Dollars Ninety Thousand) inclusive of interest and costs. This guarantee shall be governed by and construed in accordance with Pakistani Law. Yours faithfully ?Director ?For Thomas Miller P & I Ltf. as agents for Thos R Miller & Sons (Bermuda) Managers for and on behalf of The United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Ltd."

3. I have heard Mr. Naeem Ahmed, Advocate for plaintiff and Mr. Shaiq Usmani for defendants. It is argued by Mr. Naeem Ahmed that in case the bunkers of the vessel M.T. "Bunga Sepang" are not attached before the judgment, the same will sail out of the jurisdiction of this Court and, therefore, the plaintiff shall have no assets available, in case any judgment or decree is passed in favour of plaintiff. He has further argued that at least up to the extent of US $90,000 the claim has been admitted by the defendants and that it would be just and proper if a relief as prayed is granted. Reliance was placed on the case M/s. Sports World and others v. Lateef Fabrics and others (1995 MLD 1707) and Kuwait Flour Mills Co., SAK v. m.v. Kashmir and another (1989 CLC 1459). In the first case, a learned Single Judge of Lahore High Court dismissed the Civil Revision filed against the order of Civil Judge through which respondent's application under Order XXXVIII, Rule 5, C.P.C. was granted. The order of learned Civil Judge was upheld by the Lahore High Court mainly on the ground that the affidavit filed in support of application under Order XXVIII, Rule 5, C.P.C. remained uncontroverted and that in absence of any counter-affidavit, contents of the supporting affidavit were to be treated as correct. Reliance was placed on the case of Jamal Shah v. Azad Government of State of Jammu and Kashmir and 7 others (1991 MLD 1243). Therefore, this authority is of no help to Mr. Naeem Ahmed. The second case pertains to Admiralty Jurisdiction where a ship was arrested in furtherance of the provisions of admiralty jurisdiction of High Court Ordinance, 1980 and, therefore, again the rule laid down by a learned Single Judge of this Court in the case of Kuwait Flour Mills is of no assistance to Mr. Naeem Ahmed. ?

4. Mr. Shaiq Usmani, Advocate for defendants contended that for the purpose of obtaining an order of attachment before judgment, a plaintiff is required to satisfy the Court by affidavit or otherwise that the defendant with intent to delay or to avoid any process of Court or to delay execution of any decree that may be passed, in attempting to abandon the jurisdiction of the Court or to dispose of or remove from the jurisdiction of the Court the property vested in the defendant or is about to leave Pakistan. It was argued that all such ingredients are absent in the plaintiff's case. He has further argued that the bunker of a ship does not fall within the scope of the word "property" as used in Order XXXVIII, Rule 5, C.P.C. He has placed reliance on the judgments reported as Messrs H. Nizam Din & Sons Ltd., Karachi v. m.v. "Oroomee" and 4 others (PLD 1977 Karachi 722), Messrs Asia Steel Industries AID Ltd. v. Messrs Iftikhat & Co. Ltd and others (1987 CLC 984), Muhammad Arif Effendi v. Egypt AIR (1983 SCMR 238), Muhammad Hanif v. Eckhard & Co. Marine Gmbh and 2 others (PLD 1983 Karachi 609) and Messrs Balagamwala Oil Mills v. Messrs Shakarchi Trading A.G. and others (1991 CLC 2071). In the last cited case, a learned Single Judge of this Court Mamoon Kazi, J. (Now Chief Justice of this Court) dismissed an application filed under Order XXXVIII, Rule 5, C.P.C. filed by the plaintiff by observing that it is no ground that the defendant No.3 is a foreign company and that it has no other assets in Pakistan. It was further observed that it was in the knowledge of plaintiff that the defendant was a foreign company and that it was dealing with such a company which had no assets in Pakistan. Reference was made to another case of this Court titled as Asia Steel Industries AID Ltd. v. Messrs Iftikhar & Co. Ltd. and others (1987 CLC 984) where in somewhat similar circumstances plaintiff's application under Order XXXVIII, Rule 5, C.P.C. was dismissed. Appeal filed against the said order was dismissed by a Division Bench of this Court and the view of the learned Single Judge was upheld. (See Messrs Balagamwala Oil Mills v. Messrs Shakarchi Trading A.G. and others PLD 1990 Karachi 1).

5. The most relevant case where somewhat similar controversy was raised is Messrs H. Nizam Din & Sons Ltd. (PLD 1977 Karachi 722) wherein a suit for recovery of money was filed under the Admiralty jurisdiction of this Court but then it was recorded by the then Hon'ble Chief Justice that since it does not fall within the purview of admiralty jurisdiction, the same may be treated as an ordinary suit on the original side of this Court. In that case, plaintiff exported goods worth of the amount as mentioned earlier and since there was a breach of terms of letter of credit and bill of lading the plaintiff filed a suit for recovery of the said amount. The question of attachment of a carrier/vessel came under consideration. It was held by a learned Single Judge of this Court Zafar Hussain Mirza, J. (as his lordship then was) as follows:-- "

12. It is axiomatic that the attachment under Order XXXVIII, rule 5, C.P.C. cannot be ordered as a matter of course only on the ground that the plaintiffs have a good case at the trial and it to be ordered in exceptional cases only when conditions prescribed by law are satisfied. The applicant must show facts indicating that the defendant is about to dispose of his property or is about to remove it from the local limits of the jurisdiction of the Court, with intent to obstruct or delay the execution of any decree that may be passed against him. It was forcefully contended that the vessel had arrived at the Port of Karachi on 4-4-1977 and is leaving after taking cargo, in normal course of business. The intention is not to take out the ship to defeat any decree that may be passed. It was also stated that the cargo on board the ship for export consists partly of perishable goods and if it is prevented from leaving it will result in collosal loss. These are weighty considerations to be taken in account for the present purposes."

6. Mr. Shafiq Usmani has also relied upon the case of Muhammad Hanif (PLD 1983 Karachi 609) where it was held by this Court that provisions of rule 5 to Order XXXVIII, C.P.C., would not attract where a defendant sells or disposes of any of its properties in its normal course of business and unless it is clearly established that the sale is with intention to delay or to defeat the decree only then the Court will make order for attachment. It was further held that where the sale is admitted without establishing that it is in the normal course of business together with the facts that the defendants have no other property, within the jurisdiction of the said Court and sufficient evidence has been brought on record that it is being sold in the normal course of business will not be sufficient to save the property from attachment. In the instant case it is not prima facie established by the plaintiff that the arrival and sailing of the vessel is not in the normal course of business but with the intention to delay or defeat the decree. In the case of Arif Effendi (1983 SCMR 238) the view of the learned Single Judge of this Court as well as that of Division Bench in refusing the grant of relief under Order XXXVIII, Rule 5, C.P.C. on the ground that remittances made by the defendant through the State Bank of Pakistan were of routine nature and not intended to defeat the eventual decree if any, were upheld by the Full Bench of the Hon'ble Supreme Court.

7. Present suit was filed on 26-5-1997 in respect to the cause of action arising out of the short delivery through M.T. "Bunga Kesumba" and admittedly the present vessel namely M. T. Bunga Sepang" was not in Pakistan. It has recently entered the territorial waters of this country as a routine business. Admittedly defendant No.1 is a foreign company with whom plaintiffs have knowingly entered into business. Nowhere it is alleged that the present vessel is leaving the jurisdiction of this Court with intent to delay or defeat the decree or that there is no possibility that some other vessel of the defendant may come. It is one of the functions of the vessel to sail from Port to Port and through such function to visit the Port of Karachi for business purpose. The plaintiff's case is silent on the point that the defendants are leaving jurisdiction of this Court or are disposing of their property with the intent to delay or defeat a decree that may be passed. Mere apprehension of the plaintiff that in case the vessel is allowed to leave territorial waters of Pakistan, the plaintiff will be left with no assets available, in my considered view will not attract the provisions of Order XXXVIII, Rule 5, C.P.C.

8. As a result of the above discussion, I am of the considered view that the instant application must fail and is accordingly dismissed. Order dated 6-10-1997 through which M.T. "Bunga Sepang" was attached stands recalled. H.B.T./I.37/K????????????????????????????????????????????????????????????????????????????????????? Application dismissed