1987 PLP 2085 (MLD)

Ibrahim Pishori for Defendants Nos.l and

2. S. Hamid Hussain for Defendant No.3. Imam Ali Kazi,Dy. A.-G. for Defendant No.4. Date of hearing: 21st May, 1987. The learned Deputy Attorney-General has placed before the Court a memorandum of the Collector of Custom in which it has been stated that the matter was thoroughly investigated and after due consideration and hearing under the Customs Act summary adjudication was made at the request of the plaintiff and the case was disposed of by an order Whereby the goods were allowed to be released against warning by the adjudicating authority. In these circumstances Mr.Imam Kazi the learned Deputy Attorney-General states that he has no objection for the delivery of the goods to the plaintiff, as the Customs Authorities have already allowed to do so. Mr.Pishori the learned counsel states that the defendants No.1 are prepared to give the delivery order in terms of the undertaking given by the plaintiff in paragraph No.6 of the affidavit filed in support of application under Order XXXIX, Rules 1 and 2, paragraph No.6 is reproduced as follows: - "That the plaintiff is prepared to furnish security to indemnify the defendant No.1 against penalty, if, any, imposed on them for giving delivery order to me on the basis of the said Singapore/ Karachi Bills of Lading, if at any stage it be found that I was in any way involved in the shipments of goods from Calcutta." Mr. Imtiaz Lari the learned counsel states that the plaintiff is agreeable to give this undertaking for the purposes of taking the delivery order from the defendant No.1. He further states that in the suit the plaintiff has reserved his right to sue for damages suffered due to payment of charges for the containers and demurrage charges and the plaintiff will file suit for recovery of these amounts. In these circumstances I do not find any objection if the delivery order is issued by the defendant No.1 to the plaintiff in respect of cargo in the suit. The issuance of the delivery order, in fact, amounts to final disposal of the suit. The main prayer in the plaint is that the plaintiff is entitled to delivery order of the goods and a mandatory injunction be issued directing the defendant No.1 to deliver the delivery order. The alternative prayer, is for damages for recovery of Rs.25,00,000 and costs of the suit. In the circumstances as the goods have been allowed by Custom Authorities to be released to the importer i.e. plaintiff, the defendant No.1 is prepared to give delivery order subject to the undertaking of the plaintiff stated above and plaintiff surrendering the original bills of lading, with the consent of the parties the suit is decreed to the effect that the defendant No.1 shall deliver the delivery order to the plaintiff in terms of undertaking given by the plaintiff stated above and surrendering the original bill of lading. The suit is disposed of in these terms The application is also disposed of. Parties to bear their own costs. M.Y.H./A-36/K Suit decreed.