MIAN SAQIB NISAR, J. --- An application of the petitioner under Order 38, Rule 5, C.P.C. Alongwith an other application under Order 49, Rules 1, and 2 of C.P.C., has been dismissed by the learned Trial Court vide impugned order dated 24.10.2001. The petitioner has not challenged that part of the order, whereby, the application under Order 39, Rules 1 and 2, C.P.C. Has been dismissed, but restricts only to the order pertaining to the other relief.
2. Briefly stated the facts of the case etc. Are that the petitioner claims that through various agreements with the respondent No. 1 an Indian Company, the petitioner was entitled to purchase/import the specific quantity of sugar. The said respondent through different consignments did supply some sugar, but these, supplie's were substandard and lacking quality.
Besides, on account on non-supply of the remaining sugar as per the various agreements and also because of the poor quality of the supplies made to the petitioner, has suffered losses. In the above background, on 29.9.2001, the petitioner filed a suit for specific performance and for the damages/compensation. Alongwith the suit, two applications one under Order 39, Rules 1 and 2, C.P.C. And another under Order 38, Rule 5, C.P.C. Were moved. Through the first application, the petitioner sought a restraint order that the sugar, which the respondent No. 1 has exported/sold to the respondent No. 2, which consignment was not accepted by the respondent No. 2 and presently was lying in the Railways precincts, be stopped to be reexported to India, while through another application, attachment before judgment of such sugar was sought.
3. The respondent No. 1, till now, had not come forward to contest the matter, whereas the respondent No. 2, is a proforma party. However, the respondents Nos. 6 and 7, who were not originally party to the us, moved an application to be impleaded as defendants on the ground that they, being the banker having negotiated the bill of exchange under the L.C. Of the consignment exported by the respondent No. 1 to respondent No. 2, have paid to the respondent No. 1 the amount of the consignment, thus being holders in due course, the sugar in question has become their property and cannot be attached.
4. The learned Civil Judge, vide impugned order, has declined to attach the sugar, but has directed the respondents Nos. 6 and 7 to furnish the surety to the extent of claim of the petitioner of damages to the tune of 517.105 US Dollars, hence this revision petition.
5. Learned counsel for the petitioner has vehemently argued that the sugar, in fact belongs to the respondent No. 1 and in case, it is allowed to be re-exported to India, the petitioner would not be in a position to seek the 'satisfaction of the decree, which is likely to be passed in its favour against the respondent No. 1, whereas. The counsel for the contesting respondents Nos. 6 and 7, has submitted that the sugar in question, belongs to the said respondents as they have already negotiated the bill of exchange and being holders in due course, the propriety in the sugar and passed on to them and, therefore, it cannot be attached.
6. I have heard -the learned counsel for the parties. It may be pertinent to state here that in the revision petition, the petitioner has not challenged the order of the learned Civil Judge with regard the dismissal of its application under Order 39, Rules 1 and 2, C.P.C., even while arguing the revision petition, this part of the order has been conceded. The only question remains for the determination is, whether in the facts and circumstances of the case, the sugar can be attached under Order 38, Rule 5 of C.P.C. Or not. The rule mentioned above, does not contemplate an immediate order of attachment, but the Court first should call upon the defendant to furnish the surety or show the cause, why the surety should not be C.L.R. furnished and on the failure in this behalf, the attachment could be ordered. In the -present case, the learned Civil Judge has rightly passed the impugned order and I also find it appropriate that instead of directing the attachment of the sugar straightaway, which is a perishable item, the respondents Nos. 6 and 7, who claim to be the owners of the goods, on account of being holders in due course, they should be directed to furnish a bank guarantee in order to secure the rights of the plaintiff in case, a decree is passed in its favour and against the respondent No. 1.
7. Though the learned Trial Court has directed for the furnishing of the surety to the extent of 517.105 US Dollars, but I find it more appropriate that rather the surety, the said respondent should furnish a bank guarantee by some Pakistani Scheduled Bank to the extent of 2,37,192 US Dollars, which amount is the substantive claim of the petitioner/plaintiff qua the damages and compensation detailed in paragraph No. 14 of the plaint. As regards the remaining amount is concerned, it is vaguely mentioned in paragraph No. 16, and is general in nature. Prima facie, it is not substantiated from any document on the record. .