' MUNIB AKHTAR, J.---This is an Admiralty Suit filed in rem against the defendants including the vessel in question, which is sued as the defendant No, L Two applications require consideration.
One is C.M.A. 495' of 2010, in terms of which the plaintiff seeks judgment in the sum of US$ 52,375 under Order XII, Rule 6, C.P.C. On the basis of an admission stated to have been made by the defendants Nos. 1 and 2 in the written statement. The second is C.M.A. 466 of 2010, which has been moved by the defendants Nos.1 and 2 (herein after "the contesting defendants") under section 151, C.P.C., praying that the plaintiff deposit US$ 195,353.13 with the Nazir of the Court on the basis of a counter claim made by the contesting defendants against the plaintiff.
2. Briefly stated, the facts relevant for present purposes are as follows. The defendant-vessel called at Karachi port and, inter alia, required a supply of fuel. The defendant No,4 acts as a trader for fuel supply (commonly referred to as the supply of bunker), and it approached the plaintiff, which is involved in this business on behalf of the defendant-vessel for the supply of fuel. The plaintiff was duly nominated for this purpose. As presently relevant, a contract was entered into between the parties, i,e,, the plaintiff on the one hand and the defendant No,4 acting for and on behalf of the contesting defendants on the other, for the supply of 300 Metric Tons of furnace oil (commonly referred to as IFO) at a rate of US$ 438 per Metric Ton, and the supply of 100 Metric Tons of marine gasoline oil (commonly referred to as MGO) at the rate of US$ 625 per Metric Ton. The case of the plaintiff is that after being nominated as aforesaid, and in terms of the contract between the parties, the plaintiff procured the two kinds of fuel, and took it to the port for loading onto the defendant-vessel. It is not disputed that the loading of the MGO was undertaken first. It appears that before the process of loading the fuel onto a vessel is undertaken, the concerned engineer from the vessel takes soundings in order to ensure that the correct type and quantity of fuel is being supplied. Once the fuel has been loaded onto the vessel, soundings are taken again to determine the exact amount of fuel that has been actually loaded. There are serious disputes between the parties as to whether, and if so how, this procedure was followed, and the documents relied upon by the plaintiff on the one hand, and the contesting defendants on the other prima facie show material variance. However, for reasons that will presently become clear, in my view this difference or dispute is not relevant for purposes of disposing off the two applications under consideration.
3. The case of the plaintiff is that it supplied the MGO and as per the soundings, an amount of 96.36 Metric Tons was loaded onto the vessel. However, it appears that the concerned engineer of the defendant-vessel refused to acknowledge receipt of this quantity, since according to him the quantity as received on board was 83.8 Metric Tons. In the event, no payment was made to the plaintiff for the MGO supplied, and the defendant-vessel refused altogether to take any delivery of the IFO although, as per the plaintiffs case, the plaintiff was at all times ready, willing and able to supply the latter fuel as well.
4. The case of the contesting defendants on the other hand is that the plaintiff did not supply the contractual amount of MGO and manipulated the relevant documents and made false entries/endorsements thereon to show that the fuel had been supplied. However, what is crucial for present purposes is the following statement in Para 12 of the written statement filed by the contesting defendants (at typed pg. 4):-- "It is submitted that the plaintiff has only supplied 83.8 Metric Tons of MGO to the defendant No,l.
Vessel and upon discovery of less supply of Marine Gas Oil the Chief Engineer/Master of the Vessel protested against it but of no avail."
' The contesting defendants have also denied that the plaintiff was at any material time in a position to deliver and supply the IFO. Thus the contesting defendants' case is that the plaintiff was in material breach of the contract between the parties. According to the contesting defendants, the short supply of MGO and the non-supply of the IFO forced them to make alternate arrangements for fuel, which according to them, required the defendant-vessel to proceed to another port to pick up the required fuel before continuing on its scheduled voyage. Thus, the contesting defendants state that they have suffered substantial loss and injury on account of breach of the contract by the plaintiff, and along with their written statement, they have filed a counter claim against the plaintiff. A detailed description of the loss and damage alleged to have been suffered by them is given in the counter claim, and the total claim comes to US$ 195,353.13.
5. Learned counsel for plaintiff, after narrating the facts substantially as above, submitted that insofar as his application was concerned, it was based squarely on the admission made by the contesting defendants in their written statement as noted above, namely, that 83.8 Metric Tons of MGO had been supplied. Learned counsel submitted that this admission at once entitled the plaintiff to judgment in the sum of US$ 52,375. Insofar as the defendants' application on the counter claim was concerned, learned counsel contended that the counter claim sounded only in damages for an alleged breach of contract, whereas the present suit is a suit in rem under the admiralty jurisdiction of the High Court and that therefore the two matters could not be considered together in the manner claimed by the contesting defendants. He therefore prayed that his application be allowed and that of the defendants be dismissed.
6. Learned counsel for the contesting defendants strongly opposed the plaintiff's application. He contended that the alleged admission could not be read in isolation, and the plaint and the written statement had to be read as a whole. He submitted that there was one Contract between the parties for the supply of IFO and MGO which had to be honored in its entirety by the plaintiff and which the latter had manifestly failed to do. As I understood it, learned counsel contended that the breach of contract on the part of the plaintiff to supply the IFO disentitled the plaintiff to any payment in respect of even the MGO actually supplied. Furthermore, learned counsel submitted, relying on certain case-law to which I will presently refer, that even if there were an admission in the written statement as claimed (which he denied), there was a distinction between an admission of a fact on the one hand, and the admission of liability on the other. He contended that it was only the letter type of admission which could, if at all, lead to a judgment on admission under Order XII, Rule 6, C.P.C. Learned counsel further contended that there was in any case a substantial counter claim made by the contesting defendants which in and on itself was sufficient to disentitle the plaintiff from any judgment on an alleged admission. In support of his own application, learned counsel contended that if at all the plaintiff was entitled to a judgment on the admission, then the defendants were entitled to be put on the same footing and brought on an even par with the plaintiff, and therefore the plaintiff was obligated to deposit the sum of US$ 195,353.13 with the Nazir of the Court. Learned counsel submitted that since this amount exceeded the amount for which judgment was sought, that meant that the plaintiff was not entitled to any judgment on admission.
As I understood the matter, learned counsel was quite content not to press his own application, if the application of the plaintiff were to be dismissed.
7. I have heard learned counsel as above, examined the record with their assistance and considered the case-law being relied upon. Order XII, Rule 6, C.P.C. Is as follows:-- "Any party may, at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties: and the Court may upon such application make such order, or give such judgment as the Court may think just."
It will be noted that this provision is concerned with an admission of fact. If a fact has been admitted, then the Court may (but is not bound to) give such judgment to which the party concerned may be entitled on such an, admission. This judgment may be given without determining "any other question between the parties". Thus; the Court has to first establish what the relevant admission of fact is. This admission must be clear, unambiguous, categorical and unconditional. Learned counsel for the defendants referred to the cases of Amir Bibi v. Muhammad Khurshid and others 2003 SCM R 1261, Macdonald Layton and Company Pakistan Ltd. v. Uzin Export- Import Foreign Trade Co. And others 1996 SCMR 696 and Gerry's International (Put.) Ltd v. Qatar Airways PLD 2003 Karachi 253 (DB). In the case last mentioned, the admission sought to be relied upon was an alleged failure by the defendant to categorically and specifically deny an averment made in the plaint, and it was held that this did not amount to an admission within the meaning of Order XII, Rule 6. That however is not the situation at hand, as is clear from the relevant extract from the written statement reproduced above. The decision of this Court therefore does not, in my respectful view, shed any light on the issue at hand. In the Amir Bibi case, the Supreme Court summarized the relevant provisions applicable to Order XII, Rule 6, and C.P.C. In the Macdonald Layton case, the Supreme Court cited with approval a single Bench judgment of this Court reported as Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (W.P) Karachi 75 and the principle laid down therein:-- "4. Another principle which regulates the exercise of discretion is that even if an admission has been made, but, it is subject to qualifications regarding maintainability of the suit or any such legal objection which goes to the very root of it, then it would not be proper exercise of discretion to grant decree on such admission. In this regard reference can be made to Kassamali Alibhoy v. Sh.
Abdul Sattar (PLD 1966 (P.W.) Karachi 75) in which Justice A.S. Faruqui, laid down the rule in the following words:- `Shortly put the question is this. When a defendant makes an admission on a point of fact but asserts that the claim is not recoverable in the suit because of the legal objections raised therein, can the Court then take the factual admission as an unqualified one and pass a decree on that admission? Having given my careful consideration to the question I have reached the conclusion that the answer to it must be in the negative. An admission in order to be made the basis of a decree under Order XII, rule 6, of the C.P.C. Must be unqualified and unconditional. Therefore, when factual admission is accompanied with a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified. When such a legal defence is raised the consideration of it must wait until the suit itself comes to be tried.
The Court cannot in such a case proceed under Order XII, rule 6 of the C.P.C."
' However, when the objections as to maintainability of the suit in the Kassamali Alibhoy case (which are given at pages 75 to 76 of the report) are considered, it is to be noted that those objections were specific and particular in nature. As opposed to this, the objections regarding maintainability as taken in the present suit by the contesting defendants in their written statement are vague and general in nature. Of the three objections taken, only one has some specificity, which is that section 3 of the Admiralty Jurisdiction of the High Court Ordinance, 1980 is not applicable. However, given that the contract between the parties is admitted, and it is also accepted that 83.8 Metric Tons of MGO were supplied, it is difficult to see how the suit does not come (at least) within the scope of section 3(2)(1) of the said Ordinance.
8. In my view, learned counsel for the contesting defendants has conflated two separate aspects of Order XII, Rule 6, C.P.C. Namely, the admission of the relevant fact on the one hand, and the legal consequences, if any, that flow from such an admission. As already noted, the starting point of the entire exercise must be to determine whether there has been an admission of fact. If there is no such admission, then there is no need to proceed further. In the present case, I am of the view that the extract from the written statement reproduced above does amount to the admission of a fact, namely, that 83.8 Metric Tons of MGO were supplied by the plaintiff to the defendant-vessel. The next point to consider is whether this admission is specific, clear, unambiguous, categorical and definite (as held in the Amir Bibi case). In my view, this determination itself has two aspects. Firstly, the pleadings of the parties, and in particular the written statement of the concerned defendant, have to be examined to ascertain whether the admission of the fact is not qualified in any manner.
Such a qualification may, for example, be found if an objection has been taken that the suit itself is not maintainable. However, in my view, the objection of maintainability must itself be categorical and specific and cannot be of a general nature. In the present case, in my view the objections as to maintainability taken by the contesting defendants in their written statement are only vague and general in nature. The second aspect of the exercise is to determine whether any legal consequences clearly flow from the admission in question. If the legal consequences that flow are not clear and definite and, for example, require determination of some other fact which has not admitted or is in issue, then the admission of fact cannot be held to be specific, clear and unambiguous for purposes of Order XII, Rule 6. However, if there is, or are, any legal consequences that flow directly and unambiguously from the admission in question, then the second part of the exercise would be regarded as having been completed. In other words, for Order XII, Rule 6 to apply, there must be an admission of fact that is not qualified in any manner, and an admission will be so regarded if the admission is clear, specific and categorical, the pleadings in question do not contain any specific or categorical objection to the maintainability of the suit, and a clear legal consequence flows directly from such admission.
9. In the present case, when the nature of the contract between the parties is considered, there can be no doubt that it is a contract for the sale of goods. Such sale is governed, inter alia, by the Sale of Goods Act, 1930. Now subsection (1) of section 37 of this Act provides as follows:- "Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accept the goods so delivered he shall pay for them at the contract rate."
A bare reading of this provision shows clearly that if the buyer has the option of rejecting the goods short supplied, but if he does not do so, and accepts the goods so delivered, then he is bound to pay for them at the contractual rate. In the present case, even assuming that the contesting defendants were correct and that there was a short supply of the MGO, it is clear that the quantity as supplied was in fact accepted and not rejected. In my view, therefore, the legal consequence as stated in section 37(1) necessarily follows as a direct consequence of the admitted fact, namely the supply of 83.8 Metric Tons of MGO. Secondly, it is to be noted that in the written statement, in para-4, the contesting defendants have categorically taken the position that there were two independent contracts to be performed, one in relation to the MGO and the other in relation to the IFO. However, in my view, regardless of whether there was one unified contract or two independent contracts, section 37(1) of the Sale of Goods Act is the controlling provision for present purposes.
Furthermore, the dispute as to the documents relating to the soundings that were taken, and any endorsements made (or not made) thereon is not material for present purposes, since the matter is proceeding on the basis of the admission made by the contesting defendants in their written statement.
10. Finally, one must consider the counter claim that has been set up by the contesting defendants.
It is of course well established that a counter claim is in the nature of a separate suit. Thus for example, if the plaintiff withdraws his own suit the counter claim can nonetheless continue as a separately numbered proceeding. Two specific points may be made in relation to the counter claim in the present case. Firstly, the contract between the parties expressly provides that any payment to be made to the plaintiff for the supply of fuel is to be made without any claim of set off, and in the present circumstances; the counter claim raised by the contesting defendants is essentially in the nature of a set off. Secondly, Order XII, Rule 6, C.P.C. Expressly provides that judgment may follow "without waiting for the determination of any other question between the parties". In my view, these words are broad enough to cover not merely a question that would be in issue between the parties on the basis of the suit filed by the plaintiff, but would also include any question that may be raised, or arise between them, on the basis of a counter claim filed by the defendant.
11. In view of the foregoing, I am satisfied that an admission of fact has been made in the present case on which judgment can follow. However, as pointed out by learned counsel for the contesting defendants, the exercise of jurisdiction by the Court under Order XII, Rule 6, and C.P.C. Is discretionary. The question that now needs to be addressed is whether there is anything in the present circumstances that would militate against the exercise of such discretion. The primary point put forward by the contesting defendants on this aspect is of course their own application, C.M.A. 466 of 2010, and it is therefore necessary now to consider this application. This application merely reproduces the loss and damage alleged to have been suffered by the contesting defendants on account of the alleged breach of contract by the plaintiff, the details of which are given in para-25 of their written statement, and which are reproduced in para-6 of their aforesaid application. In my view, this application is misconceived. Firstly, the grant of relief sought by this application would be tantamount to granting the relief sought in the counter claim. Secondly, as pointed out by learned counsel for the plaintiff, the counter claim sounds only in damages for breach of contract, which of course has yet to be established. Finally, the relief claimed by the application is, in substance, the relief of attachment before judgment. However, the grant of such relief is regulated by Order, XXXVIII, C.P.C., and a party seeking such relief must bring its case within the ambit of that Order. Nothing has been brought on record or shown in the application or its accompanying affidavit as would suggest that any of the well-established ingredients for the grant of relief under Order XXXVIII have been made out. Accordingly, I am of the view that this application, being misconceived, is liable to be dismissed.
12. In view of the foregoing, C.M.A. 495 of 2010 filed by the plaintiff is hereby allowed and judgment is entered in its favour for the sum of US$ 52,375 or its equivalent in Pak Rupees as on the date of actual payment. A preliminary decree shall therefore follow accordingly. C.M.A. 466 of 2010, filed by the contesting defendants is, on the other hand, hereby dismissed.