2004 PLP 286 (CLD)

"ABDOUN DISCOVERY" TRANSFER THROUGH: CITIBANK N.A. P.O. BOX 749 DUBAI UNITED ARAB EMIRATES ACCT: CITIBANK N.A. NEW YORK ABDOUN OIL COMPANY LTD ALKYON AVENUE 131 GR‑166 73 VOULA/ATHENES CURRENT USD 1063920/000/333 TRANSACTION DATE 2‑10‑1995 DEBIT ADVICE TO CITIBANK N.A. USD 630.77 DUBAI‑U.A. E. IN FAVOUR OF GALAXY REFERENCE M/T ABDOUN DISCOVERY TO YOUR DEBIT USD 630,510.77 VALUE YOURS SINCERELY SINCERELY BRUXELLES LAMBERT (SUISSE) SA (ADVICE WITHOUT SIGNATURE) BADOUN OIL COMPANY LTD. ALKYON AVENUE 131 GR‑166 73 VOULA/ATHENES S12 695021948968 ZV ZV 23‑8‑95 Ref /RW:558/CO 37968.0001/58947 CO‑ 101, 257.0 DEBIT ADVICE WE HAVE DEBITED YOUR ACCOUNT AS FOLLOWS: ORDER: FAX DU 22‑8‑95 IN FAV. OF ACC. 112001394 USD AMOUNT GALAXY SHIPPING AGENCY 300,000.00 CHARGES 40.83 D 300,040.83 VAL 24‑8-95 DETAILS OF PAYMENT "ABDOUN DISCOVERY" TRANSFER THROUGH CITIBANK N.A. P.O. BOX 749 DUBAI UNITED ARAB EMIRATES ACCT: CITIBANK N.A. NEW YORK FORM WITHOUT SIGNATURE JENGA SHIPPING CO. LTD.

131. ALKYONIDON AVE & NAFSIKAS STR CURRENT ACCOUNT USD 1063920/000/333 EXECUTION OF YOUR PAYNMENT INSTRUCTION TO CITIBANK N.A. DUBAI‑U.A.E. USD 203,000.00 IN FAVOUR OF GALAXY SHIPPING AGENCY REFERENCE M/T 'ABDOUN DISCOVERY CHARGES 28.00 TO YOUR DEBIT USD 203,028.00 VALUE 2‑10‑1995 YOURS SINCERELY BANQUE BRUXELLES LAMBERT (SUISSE) SA (ADVICE WITHOUT SIGNATURE) ABDOUN OIL COMPANY SA MUSABEH AHMAD DARWISH BLED B.5 OFFICE No. 103 AL KARAMA AREA P.O.BOX No.25603. DUBAI U.A.E. CURRENT ACCOUNT USD 1063637/000/333 TRANSACTION DATED 7‑3‑1996 EXECUTION OF YOUR PAYMENT INSTRUCTION USD 351,814 REFERENCES M/T ABDOUN DISCOVERY CHARGES 28 TO YOUR DEBIT USD 351,842 VALUE 8‑8‑1996 YOURS SINCERELY BANQUE BRUXELLES JENGA SHIPPING CO. LTD.

131. ALKYONIDON AVE & NAFSIKAS STR, GR‑166 73 VOULA/ATHENES CURRENT ACCOUNT USD 1063920/000333 ADVICE. No.74 EXECUTION OF YOUR PAYMENT INSTRUCTION TO CITIBANK N.A. USD 351,814 UNITED ARAB EMIRATES IN FAVOUR OF GALAXY SHIPPING AGENCY REFERENCES M/T ABDOUN DISCOVERY' & LPG/C CHARGES 28 TO YOUR DEBIT USD 351,842 VALUE 8-8-1996 LAMBERT SUISSE) SA (ADVICE WITHOUT SIGNATURE) YOURS SINCERELY BANQUE BRUXELLES LAMBERT (SUISSE) SA (ADVICE WITHOUT SIGNATURE) ABDOUN OIL COMPANY SA MUSABEH AHMAD DARWISH BLED B.5 OFFICE No. 103 AL KARAMA AREA P.O.BOX No.25603 DUBAI U.A.E. CURRENT ACCOUNT USD 1063637/000/333 TRANSACTION DATED 3‑7‑1996 EXECUTION OF YOUR PAYMENT INSTRUCTION USD 125,000 REFERENCES M/T ABDOUN DISCOVERY CHARGES 28 TO YOUR DEBIT USD 125,028 VALUE 5‑7‑1996 YOURS SINCERELY BANQUE BRUXELLES LAMBERT (SUISSE) SA (ADVICE WITHOUT SIGNATURE) JENGA SHIPPING CO. LTD.

131. ALKYONIDON AVE & NAFSIKAS STR. GR‑166 73 VOULA/ATHENES CURRENT ACCOUNT USD 1063920/000/333 ADVICE No.61 EXECUTION OF YOUR PAYMENT INSTRUCTION TO CITIBANK N.A. USD 125,000 DUBAI‑U.A.E. IN FAVOUR OF GALAXY SHIPPING AGENCY REFERENCES M/T'ABDOUN DISCOVERY' MANAGEMENT CHARGES 28 TO YOUR DEBIT USD 125,028 VALUE 5‑7‑1996 YOURS SINCERELY BANQUE BRUXELLES LAMBERT (SUISSE) SA (ADVICE WITHOUT SIGNATURE) The original advices were brought on record under Court order, there was no attempt on the part of appellants to produce the originals of the photo‑copies of the advices produced by them. The aforesaid documents coupled with the letter dated 12‑12‑2002 leads to irresistible conclusion that the appellants have not come with clean hands and attempted to obtain an order by placing the manipulated documents, the same is nugatory to the existence of prima facie case in their favour. This brings us to the plea raised by the respondents that the claim of the appellants does not fall within the ambit of admiralty jurisdiction of this Court as pleaded under section 3(2)(c) of the Ordinance. Secondly, the suit is barred by limitation as provided under section 6 of the Ordinance. The claim in suit is in respect of the amount allegedly paid by the plaintiff for purchase of vessel "Abdoun Discovery" and the respondent No.2 have created charge on the vessel as follows:‑‑ "The Second Party, unconditionally and irrevocably agrees that in the event of default in repayment of the loan amount as agreed herein, the First Party shall have their absolute and full claim against the Second Party, their movable, immovable assets the vessels owned by them and the vessel M.T. "Abdoun Discovery" being purchased and to be dry‑docked from the proceeds of this loan." Learned counsel for the appellants on the basis of above premises, has contended that the claim of the appellants fall under clause (c) of subsection (2) of section

3. His further contention was that under section 4(2) of the Ordinance, an action in rem can be instituted against the ship or the property on which Maritime Lien has been claimed by the appellants. On the other hand, Mr. Abul Inam's contention was that on the day when agreement was purportedly signed on behalf of the respondent No.2, it was not incorporated as juristic identity and to support of his contention has referred the certificate of incorporation of the respondent No.2 evidencing its incorporation on 23‑2‑1995. His further contention was that it is the case of the appellant that through bank advices, the amount of loan was paid to the respondent No.2 in instalments. First instalment was allegedly paid on 23‑8‑1995. Without admitting the contents of the advices, learned counsel for the respondents' contention was that respondent‑ship was purchased much before the first instalment as is evident through Bill of Sale dated 10‑4‑1995. Therefore the alleged claim of the appellants does not fall under clause (c). Mr. Abul Inam contended that mortgage or charge on ship can be created even after the purchase but it is the case of the appellants that the amount was paid for purchase of the respondent vessel which has been belied by their own documents. An action in rem can be instituted against the ship or the property on which Maritime Lien is claimed by the appellants. It is to be seen whether the plaintiff has Maritime Lien which is a privilege claim which a claimant exercises over the res (ship) in respect of which it arises and can be enforced by legal process. A Maritime Lien or his privileged claim, or charge upon Maritime property in respect of the services rendered to it (repairs) or purchase or damage done to the ship, it occurs the moment, cause of action arises and attaches to the property to which the cause accrued. It travels with the property secretly, and unconditionally and can be enforced by an action in rem' The Maritime property means, a ship, cargo and freight irrespective of the Nationality. The claim which are recognized as giving rise to the Maritime Lien seamen, Master's charged and disbursement, damage done by ship to the salvage and respondentia. The appellants' claim falls under respondentia, a legal term applied to Maritime contract mortgaging the ship and their cargo for money advance. It is the case of the appellants that the amount was paid in instalment for purchase of the respondent‑ship and for repayment, the respondent No.2 had created charge over the respondent No.1. From the documents produced, the respondent No. 1 was purchased much before the alleged payment. It has not been established that ship was purchased from the alleged loan, even the respondent No.2 was not in existence as legal identity, therefore, the appellants cannot claim maritime lien over the respondent vessel, nor the action in rem can be brought against the ship based on action in personam against the respondent No.2 in terms of subsection (4) of section 4 of the Ordinance for the reason that the respondent No.2 was not incorporated when the loan agreement was allegedly executed. Contention of the learned counsel for the appellants was that the appellants cannot be non‑suited unless the opportunity is provided to them to lead evidence on disputed facts and also contended that in terms of Order 6, rule 2 only material facts are to be stated in the pleadings it does not require the evidence through which such material facts is to be proved shall also be stated in the pleadings and to support his contention, the reliance in this regard has been placed on cases of (1) Amir Jan & others v. Haji Ghulam Muhammad PLD 1997 SC 883 and (2) Sar Anjam v. Abdul Raziq 1999 SCMR 2167. In the later case, the apex Court approved the view taken by Calcutta High Court in Moti Lal Poddar v. Judhistir Das Tear AIR 1916 Calcutta 658, that:‑‑ "it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they will have to meet when the case comes on for trial. This much the plaintiff is bound to do, though he need set out the evidence whereby he proposes to prove the facts which given him the title." It was further observed that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim of defence as the case may be but not the evidence by which they are to be proved. There is no cavil to the proposition enunciated in above cases on the interpretation of Order

6. We are hearing the appeals against the order passed under rule 731 of Sindh Chief Court Rules (O.S.). Such applications are to be disposed of on the basis of affidavits which have been filed with documents and the same are to be considered. It has also been contended by the appellants' counsel that the Ordinance, 1980 conferring the admiralty jurisdiction this Court is a remedial in nature, is to be construed liberally and to support his contention he referred the case of Sui Gas Transmission Co. Ltd. v. M.V. "Good Herald" and 3 others 1983 CLC

886. No doubt such provision is a remedial in nature requires liberal interpretation but simultaneously, exercise of such jurisdiction should not be so harsh as to cause injustice to the other party or violence to the Statute. Learned counsel for the appellants also made a feeble attempt to canvass that though in suit filed in rem, prime action lies against the res or the property and the Court while exercising admiralty jurisdiction can exercise the same either by proceeding in rem or by proceeding in personam Ahmed Investment Ltd. v. M.V. Sun Rise‑4 PLD 1980 Karachi 229, a decision rendered under the provisions of Admiralty Court Act, 1861. The position under the provisions of Admiralty jurisdiction of High Court Ordinance, 1980 is confined to cases convened by subsection (4) of section 4 of the Ordinance, that puts certain conditions for invoking the admiralty jurisdiction of the High Court whether the claim gives right to maritime lien on the ship or not by an action in rem against:‑‑ (a) the ship if at the time when the action is brought, it is beneficially owned as respects majority share therein by that person; or (b) any other ship which at the time when the action is brought is beneficially owned as aforesaid: Provided it is shown that the claim in the suit falls in any one of the categories of cases mentioned in clauses (e) to (h) and (j) to (q) of subsection (2) of section 3 of the Ordinance; a claim arises in respect of a ship, and on the date of accrual of the cause of action, the person who would be liable in action in personam was either owner or charterer of or in possession or in control of the ship. Last contention raised was that of limitation that the suit is barred by time, such plea is based on section 6 of the Admiralty Ordinance, 1980 which says that no action shall be brought before the High Court to enforce a maritime lien for the damage sustained in consequence of collision wheresoever occurring or any other maritime lien unless proceedings therein are commenced within two years from the date of the damage occurring or the maritime lien arising subject to the discretion of the High Court to extend this period. A bare reading of the above provision would show that an action to enforce a maritime lien is to be commenced within two years from the date of damage occurring or the maritime lien arising. In the present case, it is not a case of damage but the maritime lien based on agreement dated 12‑1‑1995 and in pursuance thereof the payment claimed to have been made through four bank debit advices dated 23‑8‑1995, 2‑10‑1995, 7‑8‑1996 and 7‑11‑1996. It is the appellants' own case that not a single penny has been paid. The loan agreement stipulates that any single event of default, in repayment of the loan amount and interest therein by the second party, shall entail any legal action by the first party against the second party, their assets, any and or all vessels owned by them, in any jurisdiction as the first party deems fit and proper, the second party unconditionally agrees to the first charge over the vessel "Abdoun Discovery" and other vessels owned by them. Para. 6 of the plaint pertains to cause of action, which has been pleaded as follows:‑‑ "despite repeated demands and requests for repayment, the respondent No.2, the owners of respondent No. 1 failed and neglected in payment of the agreed quarterly instalments and time and again extension for repayment was granted by the plaintiff. Since the President of the plaintiffs' company was also a shareholder to the extent of 33% shares in the respondent No.2, such extensions were liberally granted and last such extension expired sometime in the year 2001 when the defendant No.2 refused repayment and thereby committed first charge in favour of the plaintiff and default specifically giving rise to maritime lien on the respondent No. 1." The extension in limitation has been pleaded through extension granted by the appellants in payments of instalments by putting himself in duel position creditor and debtor, on assertion that the appellants' company President is also shareholder to the extent of 33% in the respondent No.2. According to the loan agreement, the loan amount was to be released in portions to be mutually agreed upon starting from 28‑1‑1995 with repayment by quarterly instalments of US$ 2,50,000 first payable on 15‑4‑1995. According to the appellants' own documents, the first portion was released on 23‑8‑1995 and the last instalment on 7‑8‑1996, therefore, 1st quarterly instalment in repayment was due and payable after three months, on or before 7‑11‑1996 which has not been paid. Mr. Akhtar Ali Mahmud tried to plead extension on the basis of letters addressed by Galaxy Maritime Enterprises S.A. addressed to the plaintiffs' President dated 10‑7‑1997, 3‑11‑1997 and 9‑5‑1998, whereby the promise was made for repayment of outstanding amount in due course. It was contended by Mr. Akhtar A. Mahmud that Galaxy Maritime Enterprises are the Shipping Managers of the respondent No.2 which has been disputed by the respondents counsel by contending that the letters addressed by Galaxy Maritime Enterprises will not give the extension in. limitation absence of any letter of acknowledgment and promised to pay by the respondent No.2 in terms of section 19 of the Limitation Act, It was also canvassed by Mr. Akhtar A. Mahmud that in terms of agreement dated 12‑8‑1999 between Muhammad Ali Aoun, Muhammad Hassan Bahri and Mr. Costas Angelou "forensic audit" was conducted by Messrs Ernst & Young Auditors and through their audit report dated 3‑12‑1999 the outstanding amounts were shown. Though the audit report has been commented upon by us. Even if audit report dated 3‑12‑1999 is taken for extension of time then the suit should have been filed within two years on or before 3‑12‑2001, whereas the suit has been filed on 27‑11‑2001 beyond the period of two years. It has also been contended that appellants have given unilateral extension of time for repayment, a concept against the law. Subsection (2) of section 29 of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:‑‑ (a) the provision contained in section 4, sections 9 to 18 and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law; Therefore, section 19 of the Limitation Act has been made applicable which provides that where before the expiry of period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was signed. Subsection (2) further provides that where the writing containing the acknowledgement is undated oral evidence may be given of the time when it is signed. Explanation II further explains the term 'signed' means signed either personally or by an agent duly authorized in this behalf. Therefore, the extension as contended is neither provided under the law nor a. case for condonation by Court has been pleaded with reasonable/justifiable grounds. If such law is in vogue in the country of respondents domicile, then such plea being based on foreign law must have been pleaded by the appellants as ruled by the apex Court in Atlantic Steamer's Supply Company v. M.V. Titisee and others PLD 1993 SC 88, that there seems to be consensus of view that question, whether a particular foreign law is applicable in a particular foreign country, is a question of fact and it was further held that since the question, whether a particular foreign law in a particular foreign country is a question of fact; in our view, it is to be pleaded expressly as a material question of fact and as the fact constituting cause of action in terms of the provisions of the C.P.C. Mr. Akhtar A. Mahmud, also urged that the question of limitation is mixed question of law and fact and the applicant may not be non‑suited without opportunity to lead evidence. No doubt the limitation is mixed question of law and fact but in case the pleading and the documents filed lead to the conclusion that the suit is barred, the question has to be addressed in terms of section 3 of the Limitation Act even if such plea has been raised. As a result of the above discussion, no exception can be taken to the view taken by the learned Single Judge in recalling the warrant of arrest by impugned order. The appeals have no merit, liable to be dismissed, while affirming the impugned' order we dismiss the appeals in limine, however, with no order as to costs. These are the reasons of short order announced on 27‑12‑2002. M.B.A./A‑507/K Appeal dismissed.