2011 CLC 714 (PLP)

AQEEL A. ABBASI, J.

Learned counsel seeks urgency on the ground that the defendant is violating the terms of agreement executed between the plaintiff and the defendant has only one Aircraft No.TC ACY, MSN 107, which is presently parked at Sialkot Airport and is likely to leave Pakistan. The entire purpose of filing of this suit will be frustrated, if urgency is not granted. Accordingly urgency application is granted.

2. It is inter alia contended by learned counsel for the plaintiff that the plaintiff entered into two agreements of lease rental with the defendant in respect of the aircraft engines at Annexure "A" (available at pages-13 to 61) and Annexure "B" (available at pages-63 to 109). Per learned counsel, pursuant to these agreements, delivery of engines was handed over to the defendant who for some time continued to make the regular payments towards these rentals but thereafter started to default in payment of their monthly lease rentals. Consequently, the plaintiff served a notice of breach dated 25-6-2009 to the defendant and in consequence of such notice, the defendant agreed to make payment towards lease rental firstly US $90,000 per week and thereafter it was reduced to US $70,000 per week. Per learned counsel, even such commitment could not be fulfilled by the defendant and they again started to default and since January, 2010, they have not made any payment in respect of the lease rental which is causing serious financial loss to the plaintiff. Per learned counsel, as per instructions, leased out engines are not available in Pakistan at present and there is only one Aircraft No.TC-ACY, MSN 107, belonging to the defendant, which is presently parked at Sialkot Airport. On a query of this court, the learned counsel has referred to Article 23-B of the agreement whereby the parties agreed to submit to the jurisdiction of this court. He further argued that the agreement was signed at Karachi and delivery of engines was also given at Karachi; therefore, this court has the jurisdiction. In support of his argument, he has placed reliance on the following reported judgments:

(1) M.A. Chowdhry v. Messrs Mitsui OSK Lines PLD 1970 SC 373 (2) CGM (Compagnie General Maritime) v. Hussain Akbar 2002 CLD 1528 (3) Messrs KSB Pumps Co. Ltd. v. Islamic Republic of Pakistan and others PLD 1979 Karachi 269 (4) Pakistan Insurance Corp. v. British India Steam Navigation Co. Ltd. and another PLD 1974 Karachi 171 (5) Karachi Gas Co. Ltd. v. Hasham Issaq PLD 1981 Karachi 197 Learned counsel has further submitted that unless order of attachment/arrest of the said aircraft i.e., Aircraft No. TC-ACY, MSN 107, is issued, the plaintiff is likely to sustain irreparable monetary loss and very purpose of filing this suit shall be frustrated. In support of his contention, he has referred to section 136, C.P.C. read with Order XXXVIII, rule 1, C.P.C. to show that such direction of attachment/ arrest of the aircraft can be issued and executed by this court through local court having jurisdiction at Sialkot. I have heard learned counsel and perused the record. Keeping in view the peculiar facts and circumstances of this case, office is directed to issue notice to the defendant through all modes including courier, fax etc. for 9-8-2010. In the meanwhile, the Director-General Civil Aviation Authority, Jinnah Terminal No.1, is directed to issue necessary instruction to Sialkot Airport authorities restraining the aircraft No.TC-ACY, MSN107, belonging to the defendant and presently parked at Sialkot Airport, from leaving the territorial Jurisdiction of Pakistan till next date of hearing and subject to deposit of an amount of US $6,202,994.23 furnish bank guarantee before the Nazir of this court, whereupon the said aircraft will stand released, without further orders by this court. Learned counsel for the plaintiff also requests for the supply of court notice/order, cover in hand, to make efforts to get the same served upon the defendant immediately. Order accordingly. Let the matter be fixed at Sr. No.1 on the next date of hearing i.e., 9-8-2010 as per Roster. S.A.K./P-1/K Application accepted.