1999 PLP 850 (MLD)

The appellant carried on the correspondence with the respondent and through letter dated 16-6-1994 requested the appellant for opening of the L/C in the following terms: "Before concluding, I will once again ask you to open the L/C of Two Billion Yen for the stocks lying at Karachi and Hatter lest it may result in complication because, you will agree with me, that I will not quitely suffer the loss and shall be left with no alternative but to approach the forum so as to get compensation and damages to cover the loss." In correspondence the respondent through letter dated 4-7-1994 intimated the applicant as follows: "Further, Heil did not take any steps to solve the kit parts issue when it first arose. For example, instead of responding to our suggestion to discuss a Limited Manufacturing License for the confiscated Kit parts, you merely persisted in asking for compensation for a 'loss' with which Sony had nothing to do, and then kept silent until this May letting the kit parts deteriorate. In summary, we disagree with your allegations that it was the actions of Sony rather than heil which caused these problems, and therefore, will not be opening a L/C as requested." In this background of the matter viz agreement itself and the correspondence carried on by the parties between themselves. We try to discuss the case laws referred Mr. Sarmad J. Osmani, learned Advocate as follows:- PLD 1970 SC 373 M.A. Chowdhury v. Messrs Mitsui O.S.K. Lines Ltd. and 3 others In this case their lordship of Hon'ble Supreme Court considering the provisions of section 28 of the Contract Act have held, Foreign jurisdiction clause in contract-Burden to satisfy Court as to justification for staying proceedings-Lies on party invoking such jurisdiction clause. The facts of the matter are that the appellant who was the sole proprietor of M/s M.A. Chowdhury & Co., and carried on import and export business as a general merchant, imported through his bankers, M/s. Habib Bank Ltd. 115 coils of M.S. Balck Wire from Japan. The above consignment was shipped from Osaka, Japan, per S.S. Kyushu Maru owned and controlled by the respondent, M/s. Mitsui O.S.K. Lines Ltd. under a bill of lading to Chittagong Port. The vessel berthed at Chittagong port on the 27th of March, 1965 and M/s Birds (Pakistan) Agencies Ltd. acting as agents of the owners of the vessel took necessary steps under section 64-D of the Sea Customs Act for loading her cargo. The consignment of the appellant was, however, short landed as per certificate issued by the Chittagong Port Trust on the 3rd of September, 1965. The Appellant claimed for the loss thereby suffered from the local agents of the owners of the vessel as also lodged a claim with the insurers, the respondent M/s. Eastern Insurance Co. Ltd. Ultimately, the appellant filed a suit in the Court of 3rd Subordinate Judge, Chittagong, claiming Rs.22,000 with interest thereon as damages for the loss suffered by him and for costs. In the suit the owners of the vessel, their local agents and the trustees for the port of Chittagong were made defendants. The insurance company and the clearing agents of the appellant were added as pro forma defendants. The owners of the vessel and their local agents filed an application under Order VII, rule 10 of the Code of Civil Procedure, alleging that since the bill of lading provided that "any dispute arising under this bill of lading shall be governed by Japanese law except as may be otherwise provided herein and any such dispute shall be decided by Tokyo District Courts in Japan", the Courts at Chittagong had no jurisdiction to try the suit. In this background, the matter reached upto the Hon'ble Supreme Court and their lordship allowed the appeal and remanded the case back to the trial Court to consider in accordance with law was whether the suit filed before them should or not should be stayed. On the face of it the facts of the above referred case in our opinion are different and distinguishable from the facts of the appeal in hand.

2. PLD 1976 Karachi 21 Seven Star Goods Transport Co. Karachi v. The Administrator, Karachi Municipal Corporation, Karachi In this matter it has been held that the Court while considering question of cause of action should apply its mind to facts in plaint and not to any other matter. Vagueness in pleadings-Proper course, party to be ordered to remove vagueness and not to reject plaint. With due respect to the authority, we are of the considered opinion that this authority is also not helpful to the case of the appellant. In the matter under hand learned Single Judge has not only considered the contents of the plaint but have also minutely examined the agreement which is the back bone of the matter and the subsequent correspondence carried on by the parties and in view of the above matter the plaint has been rejected by the learned Single Judge considering the entire legal position.

3. PLD 1978 Karachi 273 Messrs Mercantile Fire & General Insurance Co. of Pakistan Ltd. Karachi v. Messrs Arcepey Shipping Co. U.S.A. and another. In this matter a consignment of iron and steel scrap for remelting and re-rolling weighing 216 Metric Tons was shipped from Dubai to Karachi per m.v. "Al -Hassan" owned by Messrs Arcepey Shipping Co. S.A. Panama, defendant No. 1, under Bill of Lading No.2, dated 5-8-1975. After the discharge bf the cargo, it is claimed by the plaintiff, that a joint survey was carried out by the Surveyors appointed by the plaintiff and defendant 1, who found the consignment to be short in weight. Plaintiff filed suit for recovery of Rs.49,737.54 to the value of the consignment short landed. The plaintiff has also joined Messrs General Shipping Agencies, as a party to the suit. The defendants filed written statement and took the plea that the Court had no jurisdiction to try and entertain the suit and the same is liable to be stayed pending adjudication in terms of the jurisdiction clause contained in the Bill of Lading. Defendant also filed an application under section 151, C.P.C., praying stay of the further proceedings in the above suit and directing the plaintiff to have the claim adjudicated in terms of the jurisdiction clause. We are afraid on the face of it, the facts of this case, in any case, are not relevant for the decision of this appeal.

4. PLD 1993 Supreme Court 42 Messrs Eckhardt & Co, Marine GmbH v. Muhammad Hanif In this matter their lordship of Hon'ble Supreme Court after considering the provisions of Arbitration Act observed that the two Courts below have exercised jurisdiction under section 34 of the Arbitration Act against the appellant by refusing to stay the suit and the above exercise of discretion could not be said to be perverse, arbitrary or capricious and refused to interfere with the same. Herein in this matter none of the parties have requested for arbitration before the learned Single Judge. Under the circumstances, with due respect to the authority the same is not relevant. 5. 1993 SCMR 866 M/s Uzin Export & Import Enterprises for Foreign Trade v. M/s M. Iftikhar & Company Ltd. Here also in this matter there lordship of Hon'ble Supreme Court have considered the provisions of Arbitration Act and dismissed the appeal. Likewise as mentioned hereinabove in the present matter arbitration in any case is not involved.

6. PLD 1994 Lahore 525 Messrs Rupali Polyester Ltd. v. Dr Nael G. Bunni and others. In this matter learned Lahore High Court considered the provisions of Arbitration Act, Private International Law and held that Award rendered by an arbitrator is lifeless and is not capable of being executed till such time the life is infused into it by the Court by passing a decree in accordance with the same, and that the arbitration agreement between the parties does not have effect of debarring the Court of its jurisdiction. Whereas in this matter neither the matter has been referred to Arbitrators nor the parties agitated the same before the learned Single Judge. Here in this appeal also it has not been taken by this learned-counsel for the parties. Learned Single Judge has considered the contents of the plaint, written agreement and subsequent correspondence between the parties dealt with since the plaint does not disclose any cause of action so the same was rejected. We also want to discuss the case law cited by Mr. E.A. Nomani, learned counsel for the respondent as follows:- 1992 SCMR 1174 Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd. Karachi. In this case the appellant challenged the order of learned Single Judge of Lahore High Court dated 21-3-1990. The sole question for determination in the appeal was whether the controversy between the parties could only be adjudicated by the Karachi Court and the Court at Rawalpindi had no jurisdiction in the matter. After discussing the provisions of section 20, C.P.C., and the case decided by their lordship viz State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem (1987 SCMR 393) the appeal of the appellant was dismissed. In our opinion the case law cited by Mr. E.A. Nomani is helpful and relevant to the facts of the present case. We have gone through the material placed with the matter and we have also minutely gone through the authorities referred by the learned counsel for the parties and the provisions of section 28 of the Contract Act. The Manufacturing Licence Agreement has also been perused particularly Articles X (1) to 10(6) which show that the agreement actually automatically stood terminated with effect from 31-12-1992 and such intimation was given to the appellant that there will be no further renewal and such letter was communicated to the appellant by the respondent. Subsequent correspondence initiated by the appellant with the respondent and the reply to the respondent referred to earlier clearly shows the respondent had refused to extend the agreement and that the appellant was also provided an opportunity to seek extension only to the extent of using the pledged stock which arrived on 20th, 21st and 27th January, 1993 but the appellant did not avail the same with the respondent and the matter thereafter ended and there was no further re-export or re-purchase of the pledged stock by the respondent clause (1) of Article XIV provides that the agreement shall be construed and governed by the laws of Islamic Republic of Pakistan whereas the clause (2) provides that all controversies and disputes arising out of or relating to this Agreement shall be submitted to the following Court of Law. If the action is instituted by the Licensee such action shall be filed with the Tokyo District Court in Tokyo Japan as the Court of first instance and if the action is instituted by the Licensor, such action shall be filed with the Court of law in the territory with competent jurisdiction as the Court of first instance. In view of the above provisions, the agreement is to be governed by the laws of Islamic Republic of Pakistan. The respondent have not denied the jurisdiction of the Courts in this Country whereas they have rightly agitated the matter with the learned Single Judge that the plaint does not disclose any cause of action. Apart from the vagueness which itself is mentioned by the appellant in the plaint but the same was not discussed by the learned Single Judge. The same was also neither discussed in the order of the learned Single Judge nor we are going to discuss the same. The provisions of agreement and subsequent correspondence referred and discussed hereinabove clearly show that the agreement itself was not renewed at all. The case laws cited by Mr. Sarmad J. Osmani in our humble opinion are not relevant and applicable to the facts of the present case. Whereas the case law cited by Mr. E.A. Nomani is relevant and helpful for the case of the respondent in this matter. Under the circumstances, we do not find any deficiency, irregularity or illegality in the impugned order passed by the learned Single Judge and the same is quite within the four walls and within the parameter of the provisions of Order VII, rule, 11, C.P.C. based on the Manufacturing License Agreement which is basis of the suit, its subsequent correspondence and refusal of the respondent to renewing the agreement. For the foregoing facts and case laws, we are of the considered opinion that the appeal is devoid of merits and substance which must fail, the same is hereby dismissed with no order as to costs. After hearing of the learned counsel for the parties on 10-12-1997 the appeal was dismissed by short order. Above are the reasons for the same. H.B.T./H-59/K Appeal dismissed.