1994 PLP 2164 (CLC)

The plaintiff has also filed another application i.e. CMA 3937/93 under section 151, C.P.C. for payment of customs duty/charges for 240 bags to the Nazir of the High Court and to collect, the said goods from warehouse of defendant No.2. . Notices of these applications were issued to the defendants. Mr. Suleman Kassam, Advocate for defendant No.l has filed counter‑affidavits but the defendants Nos.2 and 3 have not filed any counter‑affidavit. Mr. Suleman Kassam, Advocate for the defendant No.l has alleged that the plaintiff as part payment towards his alleged liability, had sold the goods in question to Mr. Ishaq son of Haji Oasim, a client of defendant No.l and had given to the said defendant No.l three undated delivery orders one for 280 bags and 2 of 500 bags each and the said Mr. Ishaq has further sold these goods to Mr. Ahmad Abdul Karim. According to him, Mr. Ahmad Abdul Karim have paid duty on 1040 bags and lifted 950 bags out of the said 1280 bags. It has been further alleged that as the plaintiff tried to create some hindrance as a result of which 330 bags could not be lifted. According to him duty for 90 bags has been paid by the said Mr. Ishaq and duty for 240 bags remains to. be paid. He has also produced the photostat copies of abovesaid three alleged delivery orders one for 280 bags and two for 500 bags each, which read as under: "The Manager, VIP Bonded Warehouse, 7/77/BB SITE, KARACHI Sir, Please delivery of P.M.C.‑‑‑‑‑bags to Messer DAWOOD SONS to our behalf." These delivery orders are undated and in these it has not been stated that the goods in question have been sold by the plaintiff to the defendant No.l or to Mr. Ishaq, Mr. Farrukh Zia Shaikh, Advocate for the plaintiff has however denied even these delivery orders and has submitted that the defendant No.l gas committed fraud and the said delivery orders are forged. He has also denied that the goods in question were at any time sold by the plaintiff to Mr. Ishaque. Mr: Suleman Kassam, Advocate for the defendant No.l has submitted that the sale of goods in question is valid and legal and in accordance with the practice prevalent in the market: According to him the property in the said goods has already passed from the plaintiff. In this connection learned counsel for the defendant No.l has relied upon section 27 of the Sale of Goods Act, which read as under:‑‑ "

27. Sale by person not the owner.‑‑‑Subject to the provisions of this Act and of any other law for the time being in force, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owners, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell: Provided that, where a mercantile agent is, with the consent of the owner, in possession of the goods or of a document of title to the goods, any sale made by him, when acting in the ordinary course of business of a mercantile agent, shall ‑be as valid as if he were expressly. authorised by the owner of the goods to make the same; provided that the buyer acts in good faith and has not at the time of the contract of sale notice that the seller has no authority to sell." However, from the reading of the above‑noted section it is apparent that it is not applicable to the facts and circumstances of this case. Firstly the defendant No.l was. appointed by the plaintiff as "clearing agent" and not as "mercantile agent". Secondly it is not case of the defendant No.l that the goods have been sold by defendant No.l in the ordinary course of business as a mercantile agent of the plaintiff. The case put up by the defendant No.1 in the counter‑affidavit is that the plaintiffs have themselves sold these goods to Mr. Ishaque, and had issued 3 undated delivery orders authorising defendant No.l to take delivery from defendant No.2. In the circumstances section 27 of the Sale of Goods Act is not applicable to the facts of this case. Mr. Suleman Kassim, Advocate for defendant No.l in this connection has also relied upon 1993 CLC

714. But the facts of the present case are totally different as such the findings given in the case cited by the learned counsel for the defendant No.1 are not applicable to the present case. Mr. Suleman Kassam, Advocate for defendant No.l has in support of his other contentions relied upon 1991 MLD 2697, 1987 CLC 393 and 1984 CLC 440 but the said judgments are neither relevant nor applicable to the facts of the present case. The injunction prayed by the plaintiff in the case reported in 1991 MLD 2697 was for restraining the defendants from selling, disposing of or otherwise removing the goods which were lying at different godowns, while the prayer made in the injunction application filed by the plaintiff in this case is for direction to the defendant No.3 for release of the goods. Similarly the other cases i.e. 1984 CLC 440 and 1987 CLC 393 cited by Mr. Suleman Kassam, are also not applicable to the facts of the present case. Mr. Suleman Kassam, learned counsel for the defendant No.l has submitted that mandatory injunction can be issued only to restore status quo as on the date of the institution of the suit and not so as to bring about new state of things. According to him as the goods in question have been sold by the plaintiff to Mr. Ishaque therefore the direction to the customs authorities for release of the goods in question to the plaintiff cannot be issued. But the fact remains that the goods in question were imported by the plaintiff and the same were stored in the bonded warehouse by the plaintiff and the goods in question cannot be released from the bonded warehouse to anyone else, except the plaintiff after payment of custom duty and other charges and passing of Ex Bond Bill of Entry by the Customs Authorities in the name of the plaintiff and neither the defendant No.l nor the alleged purchaser can take delivery of the goods in question from the Custom Authorities in their own name. The photostat copies of documents filed by them in Court as Annexures to their counter‑affidavits are also in the name of the plaintiff. As such if the injunction prayed for 'by the plaintiff in these applications, is allowed, no new state of things will be brought about. Mr. Suleman Kassam, learned counsel for the defendant No.l has further submitted that the sale of goods in question by the plaintiff to Mr. Ishaque, is in accordance with the practice pievalent in the market. But he has failed to establish any alleged prevalent practice in the market for the sale of goods in the manner alleged by defendant No.l, because except the allegations made by defendant No.l in his counter‑affidavit, there is nothing to support such practice. Admittedly, on arrival, the goods in question were kept in the bonded warehouse of defendant No.2 and the plaintiff has not so far taken the delivery of the said goods from the bonded warehouse. Therefore, the question of passing of the property in the goods in question, from plaintiff to alleged purchaser or anyone else does not arise. The plaintiff is suffering heavy losses due to non‑delivery of the said goods as he has to pay daily charges of the bonded warehouse for storage of the goods. Mr. Iftikhar Qutub, Assistant Collector (Appraisement), Law Department, Karachi, who is present in Court in person, has stated that the customs authorities have already prepared Ex Bond Bill of Entry for 90 bags for which payment of customs duty etc. has already been made by the plaintiff and they have no objection in releasing the goods in question to the plaintiff. The defendant NO‑2, who is present in Court, has also stated that the goods stored in the bonded warehouse are in the name of the plaintiff and defendant No.2 is duty bound to release the goods in question to the plaintiff. In the circumstances, the objections raised by the defendant No.1 are not maintainable. The applications filed by the plaintiff are allowed and defendant No.3 is accordingly directed to issue the said Ex Bond Bill of Entry and other necessary documents for release of 90 bags of the goods in question to the plaintiff on receipt of challan for the payment of customs duty etc. and other necessary documents, from the plaintiff. They are further directed to issue the Ex Bond Bill of Entry and other necessary documents for release of the remaining (240 bags) also to the plaintiff as and when necessary customs duty and other charges are paid. ('MA No. 6009123. Mr. Suleman Kassam, Advocate has filed today in Court an application under Order I, rule ' 10, C.P.C. on behalf of Ishaque applicant for joinder as defendant in the suit. A copy of this application has been supplied to Mr. Furrukh Zia Shaikh, Advocate for the plaintiff. He has waived notice and requests for one week time for filing of counter‑affidavit. By consent of Mr., Suleman Kassam, Advocate one week time is allowed and the case is adjourned to a date in office for hearing of the application. Rejoinder, if any, in the meantime. AA./R‑273/K Application accepted.