P L D 1998 Karachi 1 (PLP)

WARHUDDIN AHMED, J.-- This appeal arises from an interlocutory order passed by a learned Single Judge of this Court on the original side in Suit, No. 1132 of 1996, whereby interim relief of injunction was declined to the appellant-plaintiff. Such was a suit based on application under sections 20 and 41 of the Arbitration Act, 1940. The suit pertained to a contract between the plaintiff-appellant and the defendant-respondent concluded on 11-7-1995 for the sale of 10,000 metric tons of Basmati rice. The appellant was to establish a letter of credit within 21 days of the date of agreement and the respondent-seller had to do the needful at its end in such manner that the goods, which were sold on F.O.B. basis, were put on board on or before 31-12-1995. It is nobody's case that the letter of credit was opened in time or the rest of the requirement were fulfilled within the contractual period. According to the appellant, the letter of credit was established on 16-10-1996 but respondent, Rice Export Corporation of Pakistan (RECP) says that by the time it received the intimation of that having been done, the contract had already been cancelled by it on 5-11-1996. This is controverted from the side of the appellant and it is maintained that two memorandums were issued on 24-10-1996 for 2500 metric tons and 1000 metric tons each by the RECP for supply of those quantities to the appellant. As to this, without conceding anything, Mr. Arif Hussian Khilji for respondent RECP says that such, even if the case, could merely have been an internal act of RECP. Correspondently, it has been pointed out by Mr. Yawar Farooqui for the appellant that, during the course of time, the appellant had agreed to take Irri-6 in place of Basmati rice and the contract had been kept alive all the while. In this background, according to him, the suit was filed and the interim relief was claimed. As seen the same was declined. The learned Single Judge, in disallowing relief, seems to have been impressed by several factors. He referred to non-payment of the contractual price by the appellant within time. Mention was also made of the revocation of the contract by the RECP. He cited V.K. Mumaraswami Chettiar and others v. P.A.S. V. Karuppuswani Nooppanar AIR 1953 Mad. 380; Messrs Charibwal Cement Ltd., Lahore v. Messrs Universal Traders, Gakhar Mandi PLD 1977 Lah. 481; Hafiz Misbahul Hasan v. The Director-General of Suppliers 1984 CLC 1129; Haji Abdul Sattar Chapri v. Secretary, Karachi Grains and Seeds Merchants Group and another 1991 MLD 2697 to hold that in such a contract, as was before him, interlocutory relief by way of interim injunction could not be granted. The same decisions are relied upon by Mr. Arif Hussain Khilji for the respondent. On his part Mr. Yawar Farooqui refers to Merkuria Sucden v. Rice Export Corporation of Pakistan 1993 CLC 714, where interim relief relative to a rice sale and. purchase was allowed by a learned Single Judge of this Court. There can be little cavil with the proposition that once a contract is wilfully broken, it is relegated to the status of a dead letter and no question of its performance arises. That is what the learned Single Judge seems to have said on account of the fact that the appellant never came up with the requisite consideration money, which was a precondition involved in the opening of letter of credit within 21 days of the contract. Obviously, such an observation was and remains tentative in nature, not intended to affect the ultimate decision of the case, which would be decided on its own facts. Another aspect of the matter is that a contract for sale of goods, speaking generally, is not routinely a contract, which is capable of being specifically performed. In relation to such a contract, not usually capable of specifically performed, a permanent injunction under section 56(f) of the Specific Relief Act cannot issue. Where a permanent injunction cannot issue, an interim injunction also does not arise to be administered. Correspondingly, in relation to contracts of sale of goods, unless otherwise shown and established, compensation in terms of money would be adequate consideration, and therefore, no element of irreparable loss would subsist, again coming in the way of grant of interim injunction relative to such contracts. These, however, are general principles of law and have to be applied in the specific circumstances of a given case, which in itself may pose an exception. As said before, none of its is calculated to affect the disposal of the main dispute between the parties. As to the order of a learned Single Judge of this Court in the case of Merkuria Sucden (supra) all that needs to be said is that where the goods which are the subject-matter of the contract, are specific or ascertained goods and it is shown that the property therein already stood passed even interim relief can be addressed, as was the position in the cited case. Several factors in the precedent case, including issuance of some documents of possession and creation of third party interests, may have accomplished just that. In that case yet another aspect may have been that, at the time, the RECP alone was dealing in the export of rice and the goods were claimed to be unavailable elsewhere. That aspect also could have weighed with the learned Single Judge. Relevant to the provisions of law pertaining to the passing of the property or the title in the goods, the rule as enshrined in section 19 of the Sale of Goods Act is that the property in the goods inter alia passes at the time when the parties intend the same to pass. Intention of the parties, subject to contract, may be ascertained from the rules set out in sections 20 to 24 of the same Act. In the instant case, Mr. Arif Hussain Khilji, for the respondent, maintains that because the contract was on F.O.B. basis, the property would have passed only as from the time the goods were actually put on board because prior to that the same shall have remained at the risk of the RECP,, the seller. The provisions of sections 20 to 24 of the Sale of Goods Act, as can be seen immediately, are explanatory of the various circumstances in which the intention of the parties may be gaudged. All such questions would come up for consideration as and when the matter is decided in the ultimate analysis. Reference may here be made to section 58 of the Sale of Goods Act. Such section runs thus:- "

58. Specific performance.--Subject to the provisions of Chapter II of the Specific Relief Act, 1877, in any suit for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, on the application of the plaintiff, by its decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The decree may be unconditional, or upon such terms and conditions as to damages, payment of the price or otherwise, as the Court may deem just, and the application of the plaintiff may be made at any time before the decree." The reproduced section would show that, in the cases covered by it, specific performance can be ordered even in relation to sale of goods. But that, as hinted above, is to be relative to specific or ascertained goods. As regards such goods, section 56 of the Specific Relief Act would not become a bar for grant of permanent injunction, nor an interlocutory injunction may be refused on that score in such behalf. Even then it would always be a question of fact as to whether the goods involved qualify as specific or ascertained goods. A variety of articles may fall under the category of "specific goods", which is defined by section 2(14) of the Sale of Goods Act to involve and mean "goods identified and agreed upon at the time a contract of sale is made". An example, which instantly occurs to mind, play be that of a painting or other piece of art or a thing having a special meaning to the buyer. Such goods arguably tray be covered by the description. However, with reference to the subject-matter of the suit and the present appeal, it can hardly be said that the goods were specific goods, because Basmati Rice, except in rare cases and unlike old (specific or ascertained) wine, from year to year, may remain similar, if not the same. As it is, according to the appellant-buyer's own case even Basmati Rice came to be substituted by Irri-6. On the other hand, the concept of ascertained goods, in the view we taken, should be still different. The expression is not defined. That, inter alia, may connote earmarked or appropriated goods in terms contracted to be sold and purchased; in other words goods identified, as agreed upon after the contract of sale is made. At any event, each individual case of the nature in such context shall have to be determined on its own facts. Nothing more on the subject need be said here. Seeing no cause for interference, while we dispose of the appeal and also the applications filed with it, subject to the foregoing, the appellant, would be force to reagitate all such questions, as be relevant to its case, just as the respondent may do likewise. Nothing said here or in the order of the learned Single Judge, except the bare propositions would affect the rights of the parties, when the case proceeds either to trial or in arbitration, as the case may be. A.A./P-40/K Order accordingly.