1. KHILJI ARIF HUSSAIN, J.--- The defendant No,1 filed application under Order VII, rule 11, C.P.C. read with section 3 of Limitation Act, 1908, praying for rejection of the plaint as being barred by time.
2. Mr. Mansoor A. Shaikh learned counsel for the defendant No,1 argued that the suit on the face of it barred by time as cause of action for filing the suit accrued on 15-9-1994 whereas suit has been filed on 13-10-2003 and is hopelessly time-barred. The plaint is, therefore, liable to be rejected on this ground.
3. On the other hand Mr. Arif Khan learned counsel for the plaintiff argued that the plaintiff's suit is in time and cause of action for the purposes of filing the suit accrued in favour of the plaintiff when defendant withdrew Suit No,346 of 1995 on 7-1-2003 and applied for the return of the bank guarantee furnished by him in favour of the Nazir of this Court to secure the claim of the plaintiff.
4. Learned Advocate further argued that time consumed from the date when first cause of action accrued, i.e. 15-9-1994 till withdrawal of the Suit No,346 of 1995, i.e. 7-1-2003 ought to have been excluded while computing the limitation for the purpose of filing the suit. In support of his contention learned Advocate relied upon the cases of Madhavdas Parmanand v. Jan Muhammad Ghulam Hyder AIR 1942 Sindh 37 and Javaid Iqbal Abbasi & Co. v. Province of Punjab and 6 others 1996 SCMR 1433. Learned counsel for the plaintiff further argued that there was no need for the plaintiff to file the suit in view of the bank guarantee furnished by he defendant and under sections 52 and 53 of the Karachi Port Trust Act, 1986 the plaintiff have authority to auction the vessel and recover the amount of his claim, for the security for which bank guarantee has been furnished by the defendants.
5. I have taken into consideration respective arguments advanced by the learned Advocate for the parties and perused the record.
6. The contention of Mr. Mansoor A. Shaikh learned counsel for the defendants is that the cause of action accrued on 15-9-1994 when M.V. "Pioneer Sun" after its arrival and while proceeding for discharge of cargo at Berth No,18 collided with Dredger B.D. "Izhar" which was lying moored at Berth No,18-A and plaintiff's suit pertains to recovery of damages resulting from the said incident is barred by time. The contention on the first sight appears to have weight. However, I have gone through the documents on record in order to appreciate respective contentions of the learned counsel for the parties; and to see whether in fact contentions of the learned Advocate for the defendant have some weight or not. I would like to give brief facts, which are necessary for the purpose of deciding the listed application.
7. The vessel "M.V. "Pioneer Sun" of the defendant No,1 collided with Dredger B.D. "Izhar" on 15th September, 1994. After the collision negotiations took place between the parties for the settlement of the matter amicably and vide letter dated 20th September, 1994 defendant No,1 offered security in the form of bank guarantee of US$ 3.5 million to cover the estimated cost of repair. The plaintiff vide letter dated 22-9-1994 informed the defendant No,1 that his option to arrange the salvage and repairs to B.D. "Izhar" has been accepted subject to the condition of furnishing bank guarantee of US$ 5 million to cover the repair and losses suffered by the plaintiff.
8. The defendant No,1 in reply to the plaintiff's letter accepted the offer and without admitting their liability for the alleged damage and for the extent of claim of the plaintiff expressed their willingness to furnish the guarantee as proposed in Annexure "E" of the plaint, i.e. letter, dated 22-9- 1994, addressed by the plaintiff. It appears that defendants Nos,1 and 2 filed petition being C.P.
9. No,2167 of 1994, calling in question the order of the plaintiff whereby they detained the vessel and demanded US$ 5 million. The vessel was directed to be released and was permitted to sail vide order, dated 28-9-1994 subject to defendant furnishing bank guarantee in the sum of US $5 million to the satisfaction of Nazir of this Court. After furnishing the security for the amount claimed by the plaintiff, vessel was allowed to sail in terms of the order passed in the petition. While petition was pending the defendant No,1 filed Suit No,346 of 1995 against the plaintiff and two other defendants for recovery of US$ 177,012, being loss of use of vessel, cost for furnishing of the guarantee in excess of the maximum liability of the defendant No,1 and additional port dues, etc. The petition was heard and disposed of with an observation that since petitioner/defendant have filed the suit in the admiralty jurisdiction of Court and it is not denied that adequate remedy is available through the said proceedings with the direction that the bank guarantee furnishing by the petitioner/defendant in the sum of US$ 5 million on 2-10-1994 shall continue to remain with the Nazir of this Court till disposed of the suit. I would like to mention here that none of the parties pointed at the time of passing of order that the plaintiff has not filed counter-claim in the suit filed by the defendants.
10. After the disposal of the petition on 18-1-2002, defendant No,1 withdrew the suit by filing application under Order XXIII, rule 1, C.P.C. on 7-1-2003. It appears that an application under section 151, C.P.C. was filed in C.P. No,D-2167 of 1994, and the learned Division Bench while disposing the application on 17-9-2003 passed following order:-- "In continuation of the bank guarantee in the terms of the order dated 15-1-2002 is a condition till disposal of Suit No,346 of 1995, which has been disposed of KPT till date has not taken any step to secure their interest, save the agent who has filed the suit. We are granting four weeks' time to them for taking steps in accordance with law to safeguard their interest."
11. After passing of the said order plaintiff filed this suit for the recovery of US$ 5.500 million from the said bank guarantee. For the purpose of deciding an application under Order VII, rule 11, C.P.C. the averment made in the memo. of plaint are deemed to be true and on the basis of the said averments one has to see whether the suit is barred by law or that the plaintiff has no cause of action. The expression "cause of action" in Order II, rule 2, C.P.C., means the cause of action for which a suit is brought. The cause of action, as it means denotes a bundle of facts, which it is necessary for the plaintiff to prove and giving rise to a right to plaintiff, which are IB traversed by the defendant.
12. To some extent Mr. Mansoor A. Shaikh, learned counsel for the defendant is right to say that the cause of action accrued to the plaintiff on the day of collision i.e. on 15-9-1994, but in the instant case aftertthe defendant's vessel collided with plaintiff's dredger, plaintiff issued order of detention in exercise of its purported powers under sections 52 and 53 of the KPT Act. The parties entered into negotiations although the defendant has not admitted the amount of damages claimed by the plaintiff but at the same time express his willingness to furnish bank guarantee of the amount so that order of detention of the ship can be recalled and ship be allowed to sail. In the petition being No,2167 of 1994, filed by the defendants Nos,1 and 2, the issue was the order of detention passed by the plaintiff, however, the ship was allowed to sail subject to furnishing bank guarantee of the amount claimed by the plaintiff and while disposing of the petition it was ordered that the bank guarantee covering the claim of the plaintiff will remain intact till disposal of the suit filed by the plaintiff and perhaps one can say that till the issue about liability of the plaintiff is determined. The final cause of action in the suit in fact accrued to the plaintiff when plaintiff exposes due withdrawal of the suit and defendant asked for the encashment of the bank guarantee. In these circumstances present suit has been filed, which in my tentative view cannot be termed as barred by time, as instead of recovering the amount claimed from the vessel, now plaintiff can recover the said amount from the bank guarantee.
13. Coming to the contention of Mr. Arif Khan learned counsel for the plaintiff the period consumed from the date of filing the petition till withdrawal of the suit, while computing the period for limitation has to be excluded, I am afraid if such period can be excluded while computing limitation for filing of the suit.
14. Under section 14 of the Limitation Act, while computing the period of limitation prescribed for any suit, the time during which (i) plaintiff has been prosecuting another civil proceeding, (ii) with due diligence, (iii) other proceedings whether in the same Court or in any Court of appeal against the defendant, (iv) upon the same cause of action, can be excused. The benefit of section 14 of the Limitation Act can be availed only by the party, who pursue his, remedy before a wrong forum bonafidely with due diligence against the same defendant and on same cause of action cannot be granted to the defendant, if he had not filed any counter-claim in the proceedings and/or not restrained from taking proceeding against the defendant in the suit filed by him.
15. The matter can be looked into from another angle that the plaintiff passed order for detention of the ship which order was questioned by defendants Nos,1 and 2 by way of filing writ petition and ship was allowed to sail subject to furnishing bank guarantee to the extent of plaintiff's claim, for which ship was detained by the plaintiff. In other words instead of recovery of the due amount from the ship, the plaintiff could have recovered the amount from the bank guarantee of his claim. The petition filed by the defendants was dismissed and relief for declaration that the detention was illegal, unlawful was not granted to them. The defendants further filed suit for damages in respect of charges which they have to pay due to furnishing bank guarantee for an amount higher than the amount permissible according to the defendants in law and for other amount etc. which suit was also withdrawn by the defendants. In view of this, one can say that the plaintiff can recover his demand from the bank guarantee, which was given instead of recovering the same from the ship.
16. However, the plaintiff has to establish prima facie that he is entitled for the amount claimed by him.
17. For the foregoing reasons the listed application is dismissed.
18. Any observation made hereinabove is tentative in nature and will not be taken into consideration while passing order on any application filed by any party at the time of passing judgment/decree.