1990 PLP 609 (CLC)

This order will dispose of C.M.A. No.4017/85 in Suit No.800/85 (M/s. Molasses Export Co. Ltd v. Consolidated Sugar Mills Limited) and C.MA. No.4019/85 in Suit No.801 /85 (Molasses Export Co. Ltd. v. Hyesons Sugar ‑Mills Limited). Both these applications have been filed on facts and circumstances which are almost identical involving same points for determination and theretore on them same arguments were advanced by both the learned counsel for the parties. Brief facts of both the cases, relevant for purposes of disposal of these applications are as follows: 1t is admitted by the parties that each defendant by its own separate agreement made on 17th August, 1985 with the plaintiff agreed to sell their entire production of molasses for the 1985‑86, 1986‑87 and 1987‑88 seasons to the plaintiff. The terms and conditions of these contracts which were reduced into writing are reproduced bclow:‑ Contract in Suit No.800 of 1985. (MOLASSES EXPORT CO. LTD.) versus CONSOLIDATED SUGAR MILLS LIMITED ??????????? .....?????? WHEREAS the "SELLER' has sold their entire production of molasses estimated at 15,000 metric tons for the season 1985‑86, and 10,000 metric tons for the seasons 1986‑87 and 1987‑88 respectively to the PURCHASER and the Purchaser has agreed to purchase. 1t is agreed as under:‑‑ THAT the Ex‑mill price of molasses to be produced during the season 1985‑86 shall be Rs.350 (Rupees three hundred fifty only) per metric ton ex‑mill Ranipur and for the molasses to be produced during the seasons 1986‑87 and 1987‑88 price shall be Rs.250 (Rupees two hundred fifty only) per metric ton ex?mill Ranipur. The entire contracted quantity of each season molasses will be lifted by the PURCHASER on or before 31st August, each year.

2. That the purchaser has paid a sum of Rs.25,00,00tl (Rupees Twenty‑rive lacs only) vide Cheque No CEL 450538 dated 24‑7‑1958 drawn on Habib Bank Limited, receipt whereof has separately been executed and acknowledged, against lifting of molasses to be produced during the crushing seasons 1985‑86, 1986‑87 and 1987‑

88. In addition to the above‑said advance purchaser will submit a Bank Guarantee in favour of National Development Leasing Corporation Limited Karachi for Rs.43,25,526 (Rupees Forty‑three lacs twenty‑five thousand five hundred twenty‑six only) valid for 36 months. The PURCHASER shall also make payment of 36 monthly instalments each of Rs. 1,20,140 (Rupees One lac twenty thousand one hundred forty‑six only) against the above Guarantee direct to the National Development Leasing Corporation Limited, Karachi on account of Consolidated Sugar Mills Limited which will be adjusted against the purchase price and the lifting of molasses of the seasons 1985‑86, 1986‑87 and 1987‑88.

3. That the PURCHASER will arrange for the placement of adequate molasses tankers at the mills filling point and that the local charges and taxes, if any, will be done by the PURCHASER.

4. That the weight recorded by the Mills shall be considered final and the responsibility of the Mills shall cease as soon as the goods arc loaded in the molasses tankers and the Weighment Note (Daily Despatch Report) giving therein the particulars of the date of loading, the quantity of molasses loaded in such carrier, is issued by the Mills. The PURCHASER may however, keep his representative at Mills on his own expenses for supervision etc. 5, That if the present export duty of 25% leviable is increased or decreased by the Government then the ex‑mill price shall be adjusted accordingly on the unlifted quantity of molasses lying at the Mill." Contract in Suit No.801 /1985 (MOLASSES EXPORT CO. Ltd. versus HYESONS SUGAR MILL LTD.) ??????????? "?????????????????????? WHEREAS the "SELLER' has sold their entire production of molasses estimated at 20,000 metric tons for the season 1985‑86 and 10,000 metric tons for the seasons 1986‑87 and 1987‑88 respectively to the 'PURCHASER' and the PURCHASER has agreed to purchase, it is agreed as under: That the ex‑mill price of molasses to be produced during the season 1985‑86 shall be Rs.310 (Rupees three hundred and ten only) per metric ton ex?mill JETHA BHUTTA and for the molasses to be produced during the seasons 1980‑87 and 1987‑88, price shall be Rs.210 (Rupees two hundred and ten only) per metric ton ex‑mill Jetha Bhutta. The entire contracted quantity of each season molasses will be lifted by the PURCHASER on or before 31st August, each year. That the PURCHASER has paid a sum of Rs.15,00,000 (Rupees fifteen lacs only), in cash receipt whereof has separately been executed and acknowledged, against lifting of molasses to be produced during the crushing seasons 1985‑86, 1986‑87 and 1987‑

88. In addition to the abovesaid advance PURCHASER will submit a Bank Guarantee in favour of National Development Leasing Corporation Limited, Karachi for Rs.36,53,100 (Rupees thirty‑six lacs fifty‑three thousand and one hundred only), valid for 36 months. The PURCHASER shall also make payment of 36 monthly instalments each of Rs.1,01,475 against the above Guarantee direct to the National Development Leasing Corporation Limited, Karachi on account of Hyesons Sugar Mills Limited which will be adjusted against the purchase price and the lifting of molasses of the seasons 1985‑86, 1986‑87 and 1987‑

88. That the PURCHASER will arrange for the placement of adequate molasses tankers at the mills filling point and that the local charges and taxes, if any, will be borne by the PURCHASER. That the weight recorded by the Mills will be considered final and the responsibility of the mills shall cease as soon as the goods are loaded in the molasses tankers and the Weighment Note (Daily Despatch Report) giving therein the particulars of the date of loading, the quantity of molasses loaded in such carrier, is issued by the Mills. The PURCHASER may however, keep his representative at mills on his own expenses for supervision, etc. That if the present Export Duty of 25% leviable is increased or decreased by the Government, then the ex‑mill price shall be adjusted accordingly on the unlifted quantity of molasses lying at the mill." 2.???????? In the two suits the plaintiff claimed the following reliefs:‑‑ "(a)?????? For specific performance of the contract. (b)??????? Further, or in the alternative, for recovery of moneys paid and damages ??????????? in the sum of Rs.3 crores. Note: In Suit No.801/85 amount claimed is Rs. Four crores. (c)??????? For an order directing the defendant to deliver the molasses to the ??????????? plaintiff. (d)??????? For such other relief as may be deemed appropriate by t hr; I lonourablc ??????????? Court. (c)??????? For costs."

3. Alongwith the suits, the above‑referred two applications under Order XXXIX rules 1 and 2 C.P.C. read with Section 151, C.P.C. have been filed praying therein that the defendants in both the suits be r‑c`lr:rint d from disposing of/delivering the molasses produced by them to any third party and direct that they should not prevent lifting of molasses by the plaintiff for the seasons mentioned in the contract. Ad interim injunction was granted by orders passed on 18‑11‑1985 restraining the defendants from removing any molasses from their factory. On receipt of notices the defendants who appeared through Mr. Rashid Akhund, Advocate, filed their counter‑affidavits on 23‑11‑1985 to which rejoinders have also been filed by the plaintiff. Attempts made to reach interim arrangements having failed, during the hearing of the applications, on an application (C.M.A. No.4470 of 198.5) by consent some of the molasses produced at the Ranipur Mills by the defendant in Suit No.800/1985 were by consent allowed to be brought and stored at Karachi in the tanks of third parties, the plaintiff agreeing to pay the storage charges for the interim period. 4.???????? In support of the applications Mr. Khalid Anwar, learned Ackocate for the plaintiff in the two suits contended that in favour of the plaintiff there are valid existing contracts, that irreparable loss and injury would be caused in case injunction is not granted and that balance of convenience is also in favour of the plaintiff. He accordingly submitted that temporary injunction as prayed may be granted in the applications. , The prayers made in the two applications for grant of interlocutory orders were opposed by Mr. Rashid Akhund, the counsel for the defendants in the two suits on a number of grounds. The points raised by the two advocates in favour of their respective contentions are discussed below. Mr. Khalid Anwar, Advocate submitted that valid agreements with all the legal formalities were made on 17th August, 1985 which are the subject?matters of the two suits, Suit No.800/85 and Suit No.801/85. The terms and conditions of these two agreements which have been executed by the purchaser/plaintiff as well as the defendants drawn on stamped papers have already been noticed above. In Suit No.800/85 the plaintiff (purchaser) paid a sum of Rs.25 lacs in cash to the Sellers/Consolidated Sugar Mills Ltd., and also furnished bank guarantee in favour of N.D.L.C., Karachi for Rs.43,25,526 valid for 36 months, against which, it is not denied, machinery have been obtained by the seller/defendant from the said Corporation (N.D.L.C.). Similarly in Suit No.801 /85 from the plaintiffs the defendant received payment of Rs.15 lacs in cash and also benefit of bank guarantee furnished in favour of the N,D.L.C. Karachi for Rs.36,53,100 against which the said Sellers have been supplied machinery by the said Corporation. The obligation under both the bank guarantees, continues to be that of the plaintiff/purchaser. Thus the consolidated Sugar Mills Ltd., the defendant in Suit No.800/85 has received financial benefit of a total sum of Rs.68,25,526 while M/s. Hyesons Sugar Mills Limited, the defendant in Suit No.801 /85, received financial benefit amounting to Rs.51,53,

100. These financial commitments by the plaintiff, far exceed the value of molasses to be supplied for the year 1985‑86, which fact I have mentioned to lay emphasis on the factor that on the one hand the defendants took the plea that the agreements are void and yet continue to hold on benefits between themselves of the total value of Rs.1,19,78,

626. The existence and legality of these two contracts were disputed by defendants not only in the counter‑affidavits filed by the defendants but also in the letters dated 18th November, 1985 sent by them through their counsel. Both the defendants took pleas to the effect that though the agreements were made on 17th August, 1985, but‑the same are void inasmuch as at the time of execution of the agreements the goods agreed to be sold were not in existence. It was also stated in the said letters that verbally it was agreed that the prices mentioned in the two agreements were fixed only for 50% of the respective quantities for each year. In the notices also pleas were taken that it is general practice followed in the trade both by the sellers and purchasers of molasses in Pakistan that at the time of purchase of molasses 50% of molasses is purchased at the fitcd price and the price of the balance 50% is fixed according to the escalation in price in the International market although ostensibly this fact is not mentioned in the agreements. In their letters of 18th November, 1985 sent throueh their counsel, while denying that entire quantities of molasses for three years were sold to the plaintiffs at the fixed price as mentioned in the agreements it was stated that no one sells huge quantities of two years in advance at a low fixed price when every one knows that enormous rise in prices is alwavs likely in the future. Pleas were also taken by the defendants in their letters rcferred above that it was verbally agreed that the prices n,entinncd in the auccmcnts were fixed only for 50% of the respective quantities for each year and price for the balance quantities in accordance with the general practice in the trade was to be fixed according to the escalation in the international market. It wsis also stated that the plaintiffs Mr. Vyani informed representative of the defendants that he was voluntarily prepared to ra;se the prices for 50% quantity by additional R,.ot? per metric ton basing his offer on the international price which otherwise the defendants were bound to sell to plaintiff at the agreed price of Rs.350 per M.T. and that the balance quantity the defendants were free to sell to any buyer as it was entirely dependent on the escalation clause. 5. 1 have summarized in brief the pleas taken by the parties about the existence of the contracts. I am however of the opinion that in view of Articles 102 and 103 of the Oanun‑e‑Shahadat Order, 1984 no oral evidence at this stage can be allowed to be admitted between the parties to the contracts for the purposes of contradicting, varying, adding to, or substracting from their terms. Mention here may be made that no evidence worth the name was brought on record to show even prima facie that there is any practice in the trade by which even the price fixed by written contracts would be subject to escalation in accordance with rise in price of molasses in international market.

6. At the time of the arguments, the learned counsel for the defendants however gave up the plea that the contracts in the two suits are void. He also did not press the plea that the contracts were obtained by the plaintiffs by misrepresentation or that the contracts are voidable. It was neither pointed out nor even contended that the contracts which the defendants had described as voidable, were at any time avoided. Mr. Rashid Akhund, learned Advocate for the defendants however submitted that there was variation in the prices, different from those which were fixed in the contracts and that even otherwise 50% of the balance quantities to be supplied under the two contracts were to be governed in accordance with? alatton in the international market of the prices of molasses and that no one ,uld agree to sell such huge quantities for such a long period of three years at prices. It may also be mentioned here that the defendants themselves have produced contract/tender of Fauji Sugar Mills as well as the contract allgedly made by them with M/s. Pakistan Molasses Company. In these contracts made in writing clauses have been expressly incorporated providing for escalation in the prices of molasses as quoted in the international market, for 50% quantities offered/agreed to be sold. The deliberate omission on the part of the defendants to incorporate any such escalation clause in the contracts with the plaintiffs, is significant and negatives their pleas taken in defence that the plaintiffs are also required to pay price for molasses in accordance with increase in prices in international market.

7. The defendants have not alleged any breach of the contracts on the part of the plaintiff, allegation of charge /variation in price on the basis of alleged trade practice having been found to be inadmissible and otherwise not established, for purposes of disposal of these applications it can be inferred that the plaintiff has established a strong prima facie case in its favour.

8. The next question which requires consideration is whether the plaintiff would suffer any irreparable loss or injury in case the interlocutory orders as prayed for are not granted. Mr. Khalid Anwar, learned counsel for the plaintiff submitted that presently the delivery of the quantities of the contracted goods produced/to be produced by the defendants Mills for the year 1985‑86 season are involved. He submitted that the contracted goods/molasses are not available and in any case are not readily available in the market and that the plaintiff has committed sale and export of the goods which are subject‑matter of the two contracts to foreign buyers and that in case breach of contracts takes place due to non‑performance on its part the plaintiff shall lose not only the credibility with the foreign buyers but shall also lose foreign market business relating to sale of molasses which is its only business. The learned counsel further submitted that not only molasses produced by sugar mills are not available in the market but, as argued by the defendant's counsel, even Khandsari molasses produced .in the villages would not be available till end of April, 1986. Mr. Khalid Anwar, prima facie, rightly argued that Khandsari molasses would neither answer the description of the contracted goods nor the alleged availability of Khandsari molasses in April, 1986 would be a matter of consolation of the plaintiff for the reason that the delivery of the goods under the contracts for the year 1985‑86 season by export is to be completed between January, 1986 to May, 1986. According to the learned counsel if interloculory orders directing the delivery of contracted goods to the plaintiff in accordance with the contracts are not passed irreparable loss and injury would be caused to the plaintiff.

9. Mr. Rashid Akhund, learned counsel for the defendants vehemently argued that the contracts in the suits being for sale of goods their specific performance could not be argued and that the sugar mills in Pakistan produce molasses approximately 6,80,505 metric tons every year, out of which the plaintiff could make purchase in the local market and may claim damages, if any. According to the learned counsel it is not a case in which the plaintiff would suffer irreparable loss and injury. According to the learned counsel for the defendants if the plaintiff ultimately is found to have established its case it can adequately be compensated by award of damages which in fact have been claimed in the alternative in the suits. Learned counsel relied upon sections 22 and 12 of the Specific Relief Act and section 58 of the Sale of Goods Act in support of the submissions made by him. He also relied upon the Law of Contract (6th Edition by G.H. Treital) wherein at page 764 the learned author has summarised the law as follows:‑ "(1)????? Granted where damages not "adequate". The traditional view is that specific performance will not be ordered where damages are an "adequate" remedy. After illustrating this requirement, we shall see that the traditional view now requires some reformulation. (a)??????? Availability of Satisfactory Equivalent. Damages are most obviously an adequate remedy where the plaintiff can get a satisfactory equivalent of what he contracted for from some other source. For this reason specific performance is not generally ordered of contracts for the sale of commodities, or of shares, which are readily available in the market. In such cases the plaintiff can buy in the market and is adequately compensated by recovering the difference between the contract and the market price by way of damages. Indeed, he is required to make the substitute purchase in performance of the duty to mitigate his loss. If he fails to do so, he cannot recover damages for extra loss suffered because the market has risen after the date when the substitute contract should have been made. To award him specific performance in such a case would, in substance, conflict with the principles of mitigation as well as being oppressive to the defendant. Similar reasoning seems to underlie the rule that a contract to lend money cannot be specifically enforced by either party. It is assumed that damages can easily be assessed by reference to current rates of interest." Reference was also made by the learned counsel to the case of Dada Steel Mills v. Metal Exports and others (1985 C L C 1814) which was a case for specific performance of agreement to sell a vessel for the purposes of scrapping, the plaintiffs having agreed to purchase the same for fulfilling the agreement of sale they entered with a third party or for use in their rerolling mills and not for plying as a cargo or passenger vessel. In the circumstances of the case the learned Court finding that there was no evidence showing any specific or peculiar nature of vessel in question or that there was no alternative source for obtaining scrapping from local or international market for purposes for which the plaintiff required the vessel, held that the agreement was not capable of being specifically enforced and that award of damages could compensate the plaintiffs for breach of contract? by the defendants. With these observations, inter alia others, the learned Judge refused to grant decree for specific performance.

10. I have carefully considered the arguments advanced by the learned counsel for the parties and find that in Suit No. 800/85 the plaintiff has already paid in cash Rs.25 lacs in addition to which it also submitted a bank guarantee in favour of N.D.L.C. Ltd. Karachi for Rs.43,25,526 valid for 36 months against which bank guarantee admittedly the defendant has obtained machinery for purposes of its mill. In the other Suit No.801/85 the defendant under the contract received Rs.15 lacs in cash besides enjoying the benefit of bank guarantee in favour of N.D.L.C. Ltd. Karachi furnished by the plaintiff in the sum of Rs. 36,53,100 valid for 36 months against which bank guarantee the defendant in this case also received delivery of machinery for its mill. Thus in the first suit total benefit which the defendant received from the plaintiff amounts to Rs.68,25,526 and in the other suit the defendant has got financial benefit amounting to Rs. 51,53,

100. Moreover, the plaintiff moved an application C.MA. No.4424/85 dated 3‑12‑1985 calling upon the defendants to produce from anyone or more sugar mills for the supply of 35,000 Metric tons molasses specifying the prices and delivery period. Learned counsel for the defendant in the two suits except making submission that time to supply particulars was too short and that in any case the burden of proof was upon the plaintiff to establish non‑availability of alternate goods in the market, was unable to point out in spite of lapse of sufficient period that contracted goods or its near substitute was available in the market. Even Khandsari molasses according to the defendant's own showing would be available only in the end of April, 1986. In these circumstances 1 am of the opinion that the principles laid down in the case of Sky Petroleum v. V.I.P. Petroleum Ltd. (1974‑1 AER page 954) would be applicable. The facts for the said case were that under a contract made in March, 1970 the plaintiff‑company agreed with the defendant that for a minimum period of 10 years it would buy all the petrol and diesel fuel that it needed for its filling stations from the defendant. In November 1973 the defendant purported to terminate the contract for an alleged breach of its terms by the plaintiff‑company. The plaintiff‑company brought an action against the defendant and sought an interlocutory injunction to restrain the defendant from witholding supplies of petrol and diesel fuel from the plaintiff‑company. There was trade evidence that in November, 1973 the petroleum market was in an unusual state and that the plaintiff‑company would have little prospect of finding an alternative source of supply. The learned Court allowed the application for injunction and in doing so while dealing with the submission made that it was a fit case for refusal of specific performance of a contract for sale of chattel alternative relief by way of damages/compensation being available, held as follows: "Now I come to the most serious hurdle in the way of the plaintiff?company which is the well‑known doctrine that the Court refuses specific performance of a contract to sell and purchase chattels not specific or ascertained. That is a well‑established and salutary rule and I am entirely unconvinced by counsel for the plaintiff‑company when he tells me that an injunction in the form sought by him would not be specific enforcement at all. The matter is one of substance and not of form and it is, in my judgment quite plain that 1 am for the time being specifically enforcing the contract if I grant an injunction. However the ratio behind the rule is, as I believe, that under the ordinary contract for the sale of non‑specific goods, damages, are a sufficient remedy. That, to my mind, is lacking in the circumstances of the present case. The evidence suggests, and indeed it is common knowledge, that the petroleum market is in an unusual state in which a would‑be buyer cannot go out into the market and contract with another seller, possibly at some sacrifice as to price. Here the defendant‑company appears for practical purposes to be the plaintiff‑company's sole means of keeping its business going, and I am prepared so far to depart from the general rule as to try to preserve the position under the contract unti

11. Relevant would also be to refer here to the case of Howard E. Perry & Co. Ltd. v. British Railway Board (1980‑2 AER 579). In this case while dealing with the contention raised that damages would be adequate remedy the learned Judge held as under:‑ "In normal times, the steel here in dispute might indeed be in this category; but these times are not normal, and at present steel is obtainable on the market only with great difficulty, if at all. If the equivalent of what is detained is unobtainable, how can it be said that damages are an adequate remedy? They plainly are not. Counsel for the plaintiff observed that at present "Steel is gold" and one can see what he meant. Yet even that may not do justice to his cause, since as far as I know gold is still available on the open market to those who pay the price. In one sense. I suppose, it can be said that as those who trade do so for profit, damages of a sufficient amount may compensate for any wrong. All that the plaintiffs are losing, said counsel for the defendants, is the sale of some steel, and damages will adequately compensate them for that. I do not think that this is by any means the whole picture. Damages would be poor consolation if the failure of supplies forces a trade to lay off staff and disappoint his customers (whose affections may be transferred to others) and ultimately forces him towards insolvency. On the facts of the present case the perils of the plaintiffs may well not be so great as that at present, but such elements cannot be ignored. In any case, I think that what matters is the adequacy of damages in place of the thing that ought to have been delivered. Under this head I think that my discretion ought to be exercised in favour of making the order that the plaintiffs seek." 1n view of above principles laid down in the two cases referred to above (Sky Petroleum v. VIP. Petroleum and Howard E. Perry & Co Ltd .v. British Railways Board) and keeping in view the material on record being satisfied that molasses of the description given in contracts are not available in the market and in any case would not be available and that even Khandsari molasses would not be available till end of April, 1986 (though the goods of this description could not be deemed to be alternate goods available in the market for purposes of contracts in the suits) and further being of the opinion that damages would be a poor consolation if the plaintiff fails to supply the contracted good$ to its purchasers abroad there being serious peril of losing market abroad for failure on the part of the plaintiff to keep its commitments with the purchasers abroad, the argument A cannot be accepted that injunction in this case may be refused merely for the reason that ultimately damages could be granted to the plaintiff. I may also refer here to the case of J. Narain v. Surajmal reported in AIR 1949 Federal Court 211, where specific performance though being discretionary remedy was granted in the case of sale shares of a company which were limited in number and were not ordinarily available in the market.

12. Lastly remains for consideration the question of balance of convenience which is also one of the essential ingredients relevant for decision of applications made for grant of temporary injunction. The only argument advanced by the learned counsel for the defendants in the two suits was hat molasses are produced in large quantities each month by the defendant's mills and that it was impossible for the defendants to continue to go on storing the same for indefinite period if injunction is granted restraining the defendants from disposing of and selling the same. On the other hand Mr. Khalid Anwer, learned counsel for the plaintiff submitted that the balance of convenience is in favour of the plaintiff who has to export and supply the molasses in the international market to fulfil the commitment. It was further submitted that in Suit No. 800/85 the defendant has already received financial benefit amounting to Rs. 68,25,526, and in the other Suit No. 801/85 the defendants received Rs. 15 lacs in cash and benefit of bank guarantee amounting to Rs. 36,54,100 (total Rs. 51,53,100). The submission thus made by the learned counsel for the plaintiff clearly shows that equity and balance of convenience are in favour of the plaintiff who would suffer seriously in case delivery of the goods is not made as prayed while the defendants are not to B lose anything they having entered into solemn contracts to supply the goods as contracted. Refusal of the interlocutory orders prayed for would obviously result in throwing the plaintiff out from international market in molasses and loss of valuable clients. Before concluding I may also refer to the argument advanced by the learned counsel for the defendants that as permanent injuction has not been prayed for in the suits temporary injunction could not be granted as laid down in the case of Margoob Siddiqui v. Hamid Ahmad Khan and others (1974 SCMR 519). 1 have considered this aspect of the case and find that the argument advanced is not available as in the suits the plaintiff has prayed for not only specific performance of the contracts but has also prayed for issuance of directions to the defendants to deliver molasses to the plaintiff. The plaintiff by the two applications made in the suits had not only prayed for orders restraining the defendants from delivering the goods in suits to any other person but has also prayed for grant of direction that the defendants should not prevent the lifting of the molasses by the plaintiff. The reliefs thus claimed in the applications in my opinion are fully covered by the prayers made in the suits and accordingly interlocutory relief as prayed can also be granted and the same would not be beyond the reliefs claimed in the suits. I accordingly grant the applications made by the plaintiffs to the extent that the defendant‑companies in the two suits are restrained from refusing to allow the plaintiff to lift the molasses in accordance with and in the manner provided under the written contracts dated 17th August, 1985. This direction given by me shall be valid for the period ending 31st May, 1986 whereafter it would be open to the parties to seek further orders and directions from the Court as to the delivery of further quantities or otherwise as deemed fit or found advisable. In order to safeguard the interest of the defendants in view of this plea that there was enhancement in the price of R s. 60 per metric ton for first 50% of quantities of the goods in 1985‑86 season (which allegation has been denied by the plaintiff) I direct that for the quantities of molasses lifted every week the plaintiff shall furnish security to the satisfaction of the Nazir in the sum calculated at Rs. 60 per metric ton. Security shall be furnished for first 50% quantities for 1985‑86 season. In case no such bank guarantee is furnished at any time the matter shall be put up before the Court for further orders. Finally I may clarify that the observations made above are tentative in nature for purposes of disposal of the applications and shall not prejudice any of the parties at the final trial of the suits.

13. Consequently CMAs No. 4439/85 filed by defendants, subject to above observations, stand dismissed. H.B.T./M‑992/K????????? Temporary injunction granted.