1. ' Through application listed at Sr.No,4 plaintiff seeks attachment before judgment of running and final bills of the defendant No,2 with respect to construction of road project 3 Km out of Turbat Gawadar Road project, MA, Turbat Section 1, package 2-A and security deposit of defendant No, 2 lying with defendant No,5, on the ground that the defendant No,2 being a foreign concern in order to avoid judgment and decree which is most likely to be passed against it, has started winding up of its business and is about to leave the country after collecting its bills and disposing of its properties in Pakistan.
2. ' Briefly the defendant No,5 National Highway Authority awarded a contract for construction of road to defendant No,2 in the year, 2004. The defendant No,2 further entered into a sub-Contract with defendant. No,1 for construction of the said road and the plaintiff claims to bea partner of defendant No,1 and has filed the instant suit for dissolution of such partnership, rendition of account, damages, mandatory and 'permanent injunction.
3. ' Mr. K.B. Bhutto learned counsel for the plaintiff has contended that since no counter affidavit has been filed on behalf of the defendant No,2 therefore, the application is liable to be allowed as prayed. In response to a query from the Court as to whether there was any privity of contract between the plaintiff and defendant No, 2, learned counsel has placed reliance on letter of authorization (Page-41), whereby the defendant No,1 as proprietor of Akhtar Mehmood and Brothers had authorized the plaintiff as well as one Muhammad Qasim to submit running bills and received cash/cheque in the name of the plaintiff on his behalf and to sign document on that count and contended that since such authorization was duly acknowledged by the defendant No,2 and was also acted upon, therefore, despite having no privity of contract with defendant No,2 the plaintiff is entitled for the rendition of account from defendant No,2. In support of his contention learned counsel has placed reliance on a judgment from Indian jurisdiction in the case of Allahabad Bank Limited v. Simla Banking Industrial Company AIR 1929 Lah.182.
4. ' Though no counter affidavit was filed on behalf of the defendant No:2, however counsel for defendant No,2 vehemently opposed the application and contended that no privity of contract exists between the plaintiff and defendant therefore the application is misconceived and be dismissed. Likewise counsel for defendant No,1 has denied the claim of the plaintiff and urged that there was no partnership between plaintiff and defendant No,1 and the deed of partnership placed on record by the plaintiff is manipulated. It was further contended that no amount is due and payable against defendant No,1 and the plaintiff has no concern with the dealing between defendants Nos.1 and 2, therefore, the application be dismissed.
5. ' I have heard the learned counsel for the respective parties and have gone through the record as well as case-law cited at bar.
6. ' The pre-requisite for filing an application under Order XXXVIII rule 5 appears to be the satisfaction of Court by affidavits or otherwise on the point that the defendant with the intent to obstruct or delay the execution of a decree that may be passed against him is about to dispose of the whole or any part of his property or to remove the whole or any part of such property from the local limits of the jurisdiction of the Court, therefore the non-filing of counter affidavit by the defendant is totally immaterial and the Court would not issue an attachment order on account of non-filing of counter affidavit by the defendant unless it is satisfied that the plaintiff has made out a case far attachment before judgment in terms of rule 5 of Order XXXVIII, C.P.C.
7. ' Though the plaintiff in the affidavit filed along with the instant application has deposed that the 'defendant No,2 being a Chinese concern, has started winding up their construction work and are about to leave the country after collecting the running bills and are further in process of disposing of their properties with the intent to obstruct and defeat the execution of a decree that may be passed against the defendant No,2 but has not prayed for money decree against defendant No,2.
8. For the sake of convenience the prayers in the suit is reproduced herein below:--
(i) Dissolution of the partnership dated 13-6-2005 (Annexure B) between the plaintiff and the defendant No,l.
(ii) Mandatory injunction directing the defendant No,1 to render true and full accounts in respect of all the amounts received under the bills against the said contract of the construction of road project from the defendant No,2 and/or the defendant No,5.
(iii) Mandatory injunction directing the defendants Nos.2 and 5 to render true and full accounts in respect of the outstanding bills in respect of the said construction of the road project, against them and deposit the same in this Honourable Court.
(iv) Mandatory injunction directing the defendant No,6 to deposit the insured amount in respect of the damage to the machinery under said construction of road project.
(v) Mandatory injunction directing the defendants Nos.1, 4 and 5 to pay the amount of Rs,1,02,50,000 as damages caused to the plaintiff's machinery and equipment and also any other amount found payable to the plaintiff, jointly and severally.
(vi) Permanent injunction restraining the defendant No,1 to receive any amount due on the bills of construction of the road project from the defendant No,2 and also restraining the defendant No,2 from paying such amount to the defendant No, 1.
(vii) Appointment of receiver to take all accounts from the defendants by exercising all the power under Order 40 rule 1, C.P.C.
9. ' A perusal of the prayer clause reflects that the plaintiff has not even asked for any money decree against defendant No,2 and rightly so, for the simple reason that there was neither any privity of contract between the plaintiff and defendant No,2, nor the plaintiff is in knowledge of any amount which might be payable by defendant No,2 to defendant No, I, the plaintiff has even not claimed any amount/ B money decree against defendant No,1 on the account of construction of road and what has been claimed is only rendition of account or damages for the alleged loss to the machinery and it is quite possible that after rendition of account no amount is found due in favour of plaintiff or against defendant No, 1.
10. ' As to the judgment cited by Mr. Bhutto from the Indian jurisdiction in the case of Allahabad Bank Ltd., (supra). In that case first party undertook to pay off the advances made by a Banking Company to a third party out of the profits which the first party under a Power of Attorney from the third party was empowered to realize on his behalf. In such circumstances it was held that though there being no privity of contract despite the suit filed by the Banking Company for rendition of account against first party was competent, whereas in the instant case even if the plaintiff is found entitled to rendition of account from defendants Nos.2 or 5 still their properties cannot be attached for the simple reason that there is no claim of the plaintiff against defendant No,1 on account of road construction except rendition of account c and it might be that upon rendition of account no amount is found due for payment to the plaintiff even otherwise the pre-requisite for direction to render account are totally different than the pre-requisites for attachment before judgment.
11. ' I am of the view that a claim attachment before judgment can only successfully be maintained if the plaintif establish before Court that a money decree is likely to be passed in his favour of a specified amount against the defendants who with intention to avoid payment o such amount are in process of liquidating or removing their assets from the territorial jurisdiction of that Court, whereas in the instant case plaintiff has not even claimed c any money decree against defendant No,2 nor their exists any privity of contract between the plaintiff and defendant No,2, the application not only misconceived but abuse of the process of this Court and therefore is dismissed with cost o Rs,10,000 to be deposited with the Nazir o this Court within 7 days. Office is directed to place this case in Court after expiry of 7 days for further orders in case the cost is not deposited.
12. ' Through this application defendant No,6 has prayed for striking off its name from the array of defendants on account of being improperly joined.
13. ' Mr. Ishrat Alvi learned counsel for defendant No,6 has contended that defendants Nos.2 and 5 had taken out a joint Insurance policy from defendant No,6 for the construction of Gawadar Ratto Dero Road Project No,
1. Per learned counsel none of the insured till date has lodged any claim in consequent to such insurance policy with defendant No,6 and the plaintiff who claims to be a partner of defendant No,1 who might have been engaged by defendant No,2 for execution of any portion of said road has without any cause arrayed the insurer as defendant No,6. It is contended that since the plaintiff has no privity of contract with the defendant No,6, therefore the losses, if any, suffered by the plaintiff are neither payable by the defendant No,6 nor fall within the ambit of insurance policy therefore, no cause of action has accrued against defendant No,6 for filing of this suit and therefore, its name be struck off from the array of defendants.
14. ' On the other hand Mr. K.B. Bhutto, learned counsel for the plaintiff has contended that though there may be no privity of contact between the plaintiff and defendant No,6, but since the plaintiff was carrying out the work of construction of Gawadar Ratto Dero Road Project No,1 and has suffered loss to the extent Rs,102,50,000 as detailed in para. 13 and schedule at page 51, therefore, is entitled to the benefit of insurance policy.
15. ' I have heard the learned counsel for the respective parties and have perused the record.
16. ' It appears that insurance policy was taken out jointly by defendants 'Nos.2 and 6 in respect of construction work at Gawadar Ratto Dero Road Project No, 1 . However, none of The insured have lodged any claim against defendant No,6. Even defendant No,1 who appears to be sub-contractor of defendant No,2 has denied the plaintiff's claim of being a partner or to have suffered any damages. The plaintiff has not placed on record any document whereby claim against defendant No,6 can sustain. A claim against an insurance company can be lodged within a specified time by the insured or the assignee of the policy only for the losses covered under the policy. It is also an admitted position that defendants Nos.2 and 5 the insured have never assigned the said insurance policy in favour of any one including plaintiff nor have lodged any claim, therefore, in my view no cause of action was available to the plaintiff against defendant No,6 and its impleadment appears to be improper as no decree whatsoever can be passed against defendant No,6. The application consequently is allowed, the name of defendant No,6 is struck off from the array of defendants.