1997 PLP 2003 (CLC)

By the first application Civil Miscellaneous Application No.4592 of 1997, the plaintiff seeks attachment before judgment of all the movable goods and properties described in the application as follows:‑‑ "All books stock in trade furniture fittings business machines, Computers, Calculators, Typewriters, Cabinet book shelf etc. which are valued approximately Rs.4,500,000 only." A further prayer has been made, for appointment of Nazir to prepare Inventory of the goods and properties found at the defendant's registered office and for sealing the premises. On 17‑7‑1997 when the application came up before my learned brother Zafar Hadi Shah, J., order was passed for attachment of the premises where business is carried on by the defendants; and, Nazir was appointed as Commissioner to make an Inventory of the stock and other items lying in the shop with directions to seal the shop thereafter. The order was however, made conditional and was to stand withdrawn without any further orders if the defendants furnished surety to the extent of the claim amount. In pursuance of such order, the Nazir made an attempt to attach and seal the shop and for preparation of inventory, but could not succeed because of large number of books lying at the shop. A report was submitted by Nazir on 21‑7‑1997 to the effect that the order dated 17‑7‑1997 could not be implemented. On the same day i.e. 21‑7‑1997, an application under Order 38, rule 6(2), C.P.C. was filed seeking recall of order dated 17‑7‑1997 raising objection that notice of the application under Order 38, Rule 5, C.P.C. had not been ordered notwithstanding mandatory requirement of law. On 22‑7‑1997, while granting time to the parties to complete their replies, with consent of the learned counsel for defendant it was ordered that a personal bond be executed to the effect that the decree, if passed against the defendants, shall be satisfied. I am informed that the personal bond was consequently executed by Syed Arshad Raza Jafri, Managing Director of defendant in terms of the order dated 22‑7‑1997. On the very date, the learned counsel for the defendant, gave an undertaking to the effect that the defendant did not intend to dispose of the present business premises nor to close down the running business at such premises. Subject to such undertaking and the execution of the personal bond, the operation of the order dated 17‑7‑1997 was directed to remain in abeyance. , In support of the application under Order 38, Rule 5, C.P.C., Mr. Mohammad Naeim, learned counsel for the plaintiff submits that the defendant has admitted its liability to pay the amount of claim on the basis whereof application for decree under Order XII, Rule 6, C.P.C. has already been filed which is pending hearing. The learned counsel further submits that on the basis of correspondence filed alongwith the plaint, it can be held that there is strong possibility of decree being passed in the matter. Besides, it is urged that the newspaper report filed alongwith the present application shows that the defendant has offered its stock of books with discount in prices up to 70 % and that the defendant intends to close down its business; resultantly, the plaintiff shall not be able to execute the decree as may eventually be passed in the proceedings. It is further urged that the plaintiff does not have knowledge about any other properties of the defendant who has not disclosed existence of other properties, if any. Reliance is placed by the learned counsel on the case of Mohiuddin Molla v. The Province of East Pakistan and others ‑‑‑ PLD 1962 SC 119 and the judgment reported in PLD 1983 Kar. 609 ‑‑‑ Muhammad Hanif v. Eckhard & Co. Marine GmbH and others. In the first case attachment was sought during execution proceedings and it was observed that the Court has inherent power of attachment of property of a judgment‑debtor since such power is available even before passing a decree. In the second case it was found by Single Bench of this Court that although the contention that the defendant was a foreigner cannot be the sole ground for attachment, such order can be passed provided some material is placed before the Court to establish that definite efforts were being made to dispose of the only property/properties. On behalf of the defendants, it is urged that both the cases cited by the learned counsel are not applicable to the present matter. While the defendants are prepared to abide terms of the personal bond executed by its Managing Director, it is submitted that the defendant merely intends to shift its retail business from the present ground floor shop premises at Zaibunnisa Street, Saddar, Karachi, to another rented premises in Clifton, Karachi. It is further urged that the defendant carries on the wholesale business from its office at the First Floor premises, Saddar, Karachi, where large stock of books is available and the defendant, does not intend to shift its wholesale business from the present premises. Besides, it is urged that the defendant has its business in Lahore and Rawalpindi as well. The assertion that the defendant intends to close down the business muchless with intention to defeat the decree is, however, refuted and denied. The premises where retail business is being carried on by the defendants, admittedly, is rented one. As regards offer of sale of books at reduced rates, the learned counsel for the defendants submits that such sale is a routine and regular feature and has shown me, in Court, newspaper advertisements since the year 1991 to substantiate his assertion as above. Moreover, it is submitted that for sale of books, such practice is quite common in the business. I have considered the contentions of both the learned counsels and have also perused the affidavits filed by both the parties. As a general rule, while it is true that the Court has inherent power to pass an order of attachment of property, such order cannot be passed unless strong circumstances are shown to exist warranting such order. The order of attachment coupled with sealing, unlike injunction, is more akin to taking over property into custodia legis through appointment of receiver. Moreover, exercise of such power in relation to running business ought to be exercised sparingly and with circumspection. The ad interim order dated 17‑7‑1997, confirmation whereof is sought by Mr. Muhammad Naeem would result in closure of a book shop and the Court cannot remain oblivious of the loss that may be suffered by the readers community in general. The object of power conferred by Order XXXVIII, rule 5, C.P.C., is to secure' performance of decree likely to be passed and not to ' coerce' its performance before judgment. In case, the stock of books is attached as prayed, a large bulk thereof may become junk by the time it is sold, eventually. In the present case, the plaintiff does not have any material to show that the defendant is disposing of its stock‑in‑trade and the properties with a view to defeat the decree as may be passed herein. The only material relied upon by the plaintiff is the report published in daily ' Dawn' dated 16‑6‑1997. The learned counsel for the defendants submits that a notice requiring publication of contradiction was sent to the Editor daily 'Dawn' on the very day of publication and the necessary contradiction of the report has appeared in the daily ' Dawn' today. The only factual position which remains to be considered is the alleged admission of the claim in the letter filed alongwith the plaint as Annexure "B". Admittedly an application under Order 12, Rule 6, C.P.C. is pending which shall be considered on its own merit when it comes up for hearing. For the present, there is no justification for passing an order under Order 38, Rule 5, C.P.C. since the conditions required by the said provision to exist, have not apparently been satisfied. In order to secure the interest of the plaintiff, the defendant has already offered to continue the validity and effectiveness of the personal bond executed by its Managing Director. In the circumstances, it is ordered that the personal bond shall continue to be valid and effective till further orders of the Court. As regards the undertaking given on 22nd July, 1997, Mr. Kazilbash, the learned counsel for the defendants, submits that the defendants intend to shift the retail business to some place in Clifton/Defence Housing Authority, Karachi and requests for discharge of the undertaking. The learned counsel, however, is not able to give the exact address of the premises where the retail business is intended to be shifted. In the circumstances, the' undertaking given by the learned counsel on behalf of the defendant on 22‑7‑1997 shall continue to be effective until a statement in writing is filed notifying the premises where the defendants intend to set up the new retail business of sale of books. A copy of statement as and when filed, shall be supplied to the learned counsel for the plaintiff. The two applications are disposed of in the above terms. As regards the Nazir's Report, the learned counsel for the defendant has filed objections. No orders are required to be passed in relation to the report of the Nazir in view of the order passed on the two applications today. The Nazir's fee is fixed at Rs. 2,000 (Rupees Two thousand only) which shall be deposited by the plaintiff within one week from today and may be appropriated subject to administrative approval of the Hon'ble Chief Justice. A.A./E‑3/K Order accordingly.