SYED HASAN AZHAR RIZVI, J.---This order will dispose of the above mentioned two C.M.As. Which have been filed in this suit. C.M.A. No,10906 of 2011 is for grant of interim injunction filed by the plaintiff under Order XXXIX, Rules 1 and 2, read with sections 94 and 151, C.P.C. Seeking suspension of the operation of Circular/Letter No,APNS/2011/199 dated 25-10-2011 along with provisional NOC issued by defendant No,1 in favour of defendant No,2 and further restrain the defendant No,2 its officials, officers, office bearers, assigns, successors or agents from conducting any business, inter alia, including publication of advertisements in print and electronic media through the defendant No,3 or any other person/agency until the outstanding amount of Rs,125,879,406 is deposited with defendant No,1 and Rs,377,866,308 is deposited with defendant No,4. C.M.A. No,11009 of 2011 filed by the defendant No, 2 under Order XXXIX, Rule 4 read with section 151, C.P.C. With the prayer to set aside the ex parte interim order passed on 31-10-2011 on C.M.A. No,10906 of 2011.
2. This suit for declaration, permanent injunction and recovery of Rs,503,745,714 has been filed by plaintiff against the defendants with the following prayer:- "(a) To declare that the Circular/Letter No,APNS/ 2011/ 199 dated 25th October, 2011 granting provisional NOC (Annexure P/43) and Letter No,APNS/2011/11177 dated 27th October, 2011 (Annexure P/45) issued by defendant No,1 in favour of defendant No,2 are issued without lawful authority in violation of Rules and Regulations of defendant No,1 for Governing Conduct of Advertising Agencies, in violation of principles of Natural Justice and also in violation of fundamental rights of the plaintiff as envisaged in the Constitution including Articles 10-A and 18 read with Article 4 and to declare these letter, provisional NOC and Circular as cancelled and void abs initio.
(b) To declare that defendants Nos.1 and 4, their officials, officers, office-bearers, assigns, successors or agents have no authority to issue provisional or permanent NOC/Clearance Certificate in favour of defendant No,2 without receiving the total disputed amount in case of defendant No,1 of Rs,125,879,406 and Rs,377,866,308 in case of defendant No,4 on behalf of plaintiff as Trust Money.
(c) To permanently restrain the defendant No,2 its officials, officers, office bearers, assigns, successors or agents from conducting any business through the defendant No,3 its officials, officers, office bearers, assigns, successors or agents or any other person/company etc. Until the disputed amount of Rs,125,879,406 is deposited with defendant No,1 and Rs,377,866,308 is deposited with defendant No,4 as per rules and further permanently restrain defendant No,3/Manhattan from releasing any advertisement both in print and electronic media in relation to the defendant No,2/Warid till payment of the disputed amount to the plaintiff or until it is deposited with the defendant No,1/APNS and defendant No,4/PBA.
(d) Direct the defendant No,2 to pay a sum of Rs,503,745,714 to the plaintiff along with interest at the prevailing bank rate.
(e) Any other just, legal, equitable and constitutional remedy which this honourable Court may grant in favour of plaintiff and against the defendants in the interest of justice in accordance with law and constitution.
(f) Cost of the proceedings."
3. The brief facts of the plaintiff's suit are that the plaintiff is an accredited advertising agency of defendant No,1 Society since the year 2006 under Rules and Regulations Governing Conduct of Advertising Agencies. It is averred in the plaint that plaintiff entered into an agreement dated 1-8- 2005 with the defendant No,2 for providing advertising and marketing services including planning, preparing, placing advertisement on both print and electronic media. It is averred in the plaint that initial term of the agreement dated 1-8-2005 was of two years but under clause 1.1 this agreement was to automatically renew for continuing cycle unless a review is requested by either party and Clause 6 of the said agreement provided the method of payment. It is further averred in the plaint that under clause 6.3 of the said agreement, it was agreed by the defendant No,2 that upon completion of job they will make payments within 30 days of all invoices raised by the plaintiff and also further agreed in clause 6.4 that in case defendant No,2 fails to pay within 30 days then they shall be liable to pay Late Payment Surcharge to plaintiff at the rate of 22% on the total outstanding amount of each individual invoice. It is also averred in the plaint that since entering into the business relationship the plaintiff has provided satisfactory advertising and marketing services to the defendant No,2 and the plaintiff through all its invoices has reiterated the condition that in case no payment is made within 30 days of the receipt of the invoice, a 22% of finance charge/LPS will be charged. It is stated in the plaint that the defendant No,2 since the very inception of the business relationship has delayed in making payments/clearing invoices of the plaintiff in time, but the plaintiff with the aim to avoid punishments from defendants Nos.1 and 4 pays dues of member publications and broadcasters within stipulated time and arranged these payments by the plaintiff through its own resources. It is also stated that to resolve the issue of delayed and outstanding payments various meeting were also held between the management of the plaintiff and defendant No,2 but no material progress was made, therefore, in order to maintain constant cash flow, it is necessary to charge LPS form the defaulting party as charging LPS is a trade practice, which has never disputed or denied these claims of the plaintiff by defendant No,2.
4. The defendants Nos.1 to 4 have filed their separate courtier-affidavits to injunction application and denied the assertions made by the plaintiff in the application and its supporting affidavit. It has been stated that the plaintiff suit is based on mala fide and based on falsehood as the defendant No,1 in pursuance of rules and regulations issued the NOC/Clearance Certificate to the defendant No,2 to appoint defendant No,3 as an advertising agent and as such the injunction application merits dismissal as the plaintiff is seeking to achieve indirectly what he cannot seek directly to compel the defendant No,2 to continue placing advertisements through the plaintiff. It has been denied that plaintiff and defendant No,2 entered into a formal agreement and the relationship was governed through an informal mechanism. It has been submitted that the alleged 'financial charge' of 22% on invoices due beyond 30 days was never mentioned in either the estimate and budget summary provided by the plaintiff or in the corresponding service order. It has also been submitted that plaintiff has annexed a purported agreement as Annexure P/8 with the suit, which contains a forged signature of Hamid Farooq, who was the then CEO of defendant No,2. This purported agreement between the plaintiff and defendant No,2 was itself provided to the defendants Nos.1 and 4 by the plaintiff. It has been submitted that defendant No,1 approached Hamid Farooq directly who categorically denied ever having signed or executed the purported agreement and after investigation the defendant No,1 concluded that the purported agreement was false and therefore the plaintiff was not entitled to recover the alleged 'financial charge' from defendant No,2. It has been further submitted that the plaintiff has never in its regular reconciliations and statements of accounts which it sent to defendant No,2 periodically, ever claimed or raised the issue of financial charges on invoices that were paid beyond 30 days from their date and the plaintiff has failed to mention the same ad due and outstanding in its audited financial statement. It has been submitted that the plaintiff has created this issue with a mala fide intention simply so as to blackmail defendant No,2 and prevent it from shifting to another advertising agency. It has further been averred that last time the plaintiff raised the issue of financial charges was in January 2008 when defendant No,2 had first intimated to the plaintiff that it wished to appoint another advertising agency in place of the plaintiff and asked for a provisional NOC and when defendant No,2 agreed to continue the relationship this claim was dropped by the plaintiff and this issue was never raised until 2011 although the parties regularly reconciled their outstanding amount. It has also been stated that the plaintiff has approached this Court with unclean hands and is not entitled to any relief whether equitable or otherwise. It has further been stated that the plaintiff has failed to make out a prima-facie case nor the balance of convenience lies in its favour. It is submitted that it is a settled law that no injunctions are granted in a suit for the recovery of money as there is an effective alternate remedy available and a plaintiff cannot suffer irreparable loss. Therefore, the application under reply is liable to be dismissed with compensatory cost. Learned counsel for the plaintiff has also filed counter-affidavit to application under Order XXXIX, Rule. 4, C.P.C. And denied all contentions/allegations raised therein. It was stated that the defendant No,2 has come before this Court with unclean hand by submitting incorrect and the documents relied upon by the defendant No,2 are tempered. It was also stated that the defendant No,2 has abstained from disclosing a very important fact that PBA has not issued any NOC in their favour and due to the refusal of NOC by defendant No,4 no advertisements can be aired on the electronic media. It was averred that being a foreign investment based company does not mean that any preferential treatment should be afforded to the defendant No,2. It was further denied that interim stay order tantamount to death sentence for defendant No,2 and jeopardized their future due to, the stay order dated 31-10-2011. It was also stated that due to illegal action of defendant No,2 the plaintiff is suffering from severe financial crises and the defendant No,2 by not making timely payments and Late Payment Surcharge (LPS) has exposed the plaintiff to not only sanctions from regulatory bodies i,e, defendants Nos.1 and 4 but also brought them on the verge of bankruptcy. It was further stated that the defendant No,1 in collusion with defendants Nos.2 and 3 has illegally issued the impugned circular, which can be gauged from the simple fact that the matter was allegedly decided by defendant No,1 even prior to arbitration proceedings and issuing impugned circular by defendant No,1 mislead the plaintiff, member publications and other agencies into believing that defendant No,2 has deposited the disputed amount. It was stated that every acknowledged/received invoice mentions the charging of 22% financial charge/LPS, which condition has never objected by defendant No,2. It was stated that all the sensational pleadings are aimed to misguide this Court and in actual it is the plaintiff who is suffering at the hands of defendant No,2. It is, therefore, prayed that the application under reply merits dismissal with heavy cost.
5. I have heard Mr. Abid S. Zuberi, learned counsel for the plaintiff, Messrs Khalid Anwer, Rashid Anwer, Salahuddin Ahmed, Tasawur Ali Hashmi and Saman Rafat Imtiaz, advocates appearing on behalf of defendants Nos.1 to 4 and perused the material available on record.
7. Mr. Abid S. Zuberi, learned counsel for the plaintiff argued that plaintiff is accredited advertising agency of defendant No,1 and the Rules and Regulation Governing Conduct of Advertising Agencies of defendant No,1 are applicable on it. He contended that under Clause 9 of the said Rules, the defendant No,1 empowers and authorizes to impose various types of penalties including late payment surcharge, suspension and black listing on a confirmed advertising agency when it fails to make payment to its member publication within the stipulated time. He contended that for obtaining NOC for appointment by clients and/or to change/shift the agency by any advertiser, it should follow Rules and Guidelines for Appointment by Clients. He made reference to Clauses 3, 4 and 6, which read as under:-- "(3) If the client is already listed under any accredited agency or intend to change the agency, the clearance certificate from the outgoing agency should be obtained and forwarded to APNS Secretariat in original immediately.
(4) In case the clearance certificate of the outgoing agency is not provided with the appointment letter for the new agency, the APNS Secretariat will ask the outgoing agency to send its clearance/objection if any, within 7 days, failing which, the appointment would be regularized by the Society. However, if a claim of outstanding dues is received by the Society it would arrange settlement/arbitration among the clients and the outgoing agency and the clearance would be issued after settlement/decision of the Society. The decision of the Society in this regard would be final.
(6) If a dispute is established on issuance of the clearance certificate/NOC, the APNS Secretariat may issue a provisional clearance on receipt of payment of the disputed amount as trust money by the clients for arbitration by the APNS Secretariat."
8. Learned counsel further argued that Secretary of defendant No,1, who has no jurisdiction, reached the conclusion that the dispute relating to the payment of LPS did not fall within APNS's purview and ought to be determined by another forum. He contended that LPS charges were demanded when the plaintiff started defaulting to the members publication and will be apprehending of its black listing. He contended that plaintiff is not expecting fair hearing from defendant No,1, as defendant No,1 issued NOC to defendant No,2 without issuance of clearance certificate by the plaintiff in favour of defendant No,2. He contended that grant of provisional NOC is fraudulent, which will cause huge loss to plaintiffs reputation and business. He urged that the defendant No,2 through its letter dated 11-8-2011 received on 12-8-2011 informed the plaintiff that defendant No,2 has decided to discontinue the Media Buying services of plaintiff Company with effect from 29-8-2011 and sought forwarding of pending Media Bills for reconciliation and settlement of all amounts outstanding and further requested for issuance of Provisional NOC onwards from 29-8-2011. He urged that again on 12-8-2011, the plaintiff via Fax also received another letter purportedly dated 5-8-2011 issued by defendant No,1 wherein the plaintiff was informed that on 5-8-2011 the defendant No,2 had decided to appoint defendant No,3 as their Advertising Agency. He pointed out that along with this letter another letter purportedly dated 5-8- 2011 (bearing receiving of defendant No,1 of 11-8-2011) was also faxed, which clearly shows that defendant No,1 maliciously put the date of 5-8-2011 on these two letters so that the 7 days objection period lapsed, which was only done so that the plaintiff was de-barred from filing objections in time. He submitted that upon learning such facts, the plaintiff immediately contacted the defendant No,1 and asked about the discrepancy in dates of the letters, Who realizing such glaring discrepancy admitted this as their mistaken act vide its letter dated 15-8-2011 and informed the plaintiff that erroneously the date of letter was mentioned as 5-8-2011 instead of 11-8-2011. He submitted that all this was done by defendant No,1 in collusion with defendants Nos.2 and 3 with the aim to facilitate them in their illegal and malicious designs and to usurp the rights of the plaintiff. He further contended that in reply to the above referred letters, the plaintiff through its letter dated 20-8-2011 informed the defendant No,2 regarding its request for Provisional NOC, for 29-8-2011 onwards, that in view of the ongoing work and reconciliation of substantial outstanding we would like to issue you a full and final NOC upon clearance of all our outstanding. He also made reference to Clause 18 of APNS Rules. He submitted that similar provision is incorporated in Pakistan Broadcasters Association ("PBA") under clause 18 of Advertisement Rules and Code of Ethics. He further made reference to Clause 13 of APNS Rules, which is in respect of appointment of a new agency by Advertiser.
9. Learned counsel for the plaintiff contended that by illegally putting the outstanding payments on hold, the defendant No,2 intensified the financial crisis of the plaintiff which disabled the plaintiff to pay the outstanding of the member publications and member broadcasters. He contended that the plaintiff in its letter dated 10-10-2011 approached the defendant No,1 and informed that the total amount payable by defendant No, 2 to the plaintiff against its print media bills is Rs,125,879,406 and supplied all necessary record and statements of accounts. He also contended that similar letters dated 6-9-2011 and 17-10-2011 were also issued by the plaintiff to Pakistan Broadcasters Association informing them about the outstanding payments from defendant No,2 on account of electronic media bills. He submitted that for obtaining provisional NOC/Clearance Certificate from the defendant No,1 or defendant No,4, it is a condition precedent that the defendant No,2 deposits the complete disputed amount and not only the amount which it considers outstanding. However, in the present case the defendant No,2 in a mala fide and illegal manner only deposited part of the disputed amount with defendant No,1 and the defendant No, 1 in utter violation of its rules and the plaintiffs rights issued the provisional NOC thereby seriously prejudicing the plaintiff. He further submitted that the defendant No,1 on one hand admitted the dispute between the plaintiff and defendant No,2 but on the other hand without calling the Arbitration proceedings or deposit of the complete disputed amount it has issued provisional NOC/Clearance Certificate to the defendant No,2. He also urged that the claim of the plaintiff regarding 22% levy of financial charges/late payment charges was part of the invoices and was also demanded in year 2006 and 2008 when the dispute arose prior to any issuance of NOC, which the defendant No,2 never denied or disputed the claims of plaintiff regarding outstanding amounts of LPS but always avoided payment of the same on one pretext or the other. He urged that the amicable settlement of year 2008 was subject to payment of LPS but till date the defendant No,2 is avoiding to pay the same. He submitted that the action of defendant No,1 of issuance of the NOC dated 25-10-2011 is totally illegal and mala fide which has been undertaken to get favours from defendant No,2, which is one of the largest cellular companies of Pakistan. He urged that the defendant No,1 by not following its own rules and regulations has usurped the rights of the plaintiff and their action besides being illegal, arbitrary, mala fide, fraudulent, is violative of the fundamental rights of the plaintiff including Articles 18, 25 read with Article 4. He submitted that the total amount outstanding against defendant No,2 is Rs,503,745,714. He further submitted that the letter dated 27-10-2011 is also illegal and violative of the principles of natural justice as these illegal actions have financially ruined the plaintiff, who are no more in a position to serve their debts towards banks and bills/invoices towards member publications and member broadcasters. He also submitted that in a similar claim pending before the defendant No,4 but the defendant No,4 has refused to give in to the illegal demands of the defendant No,2 and has told them to first deposit the complete disputed amount claimed by the plaintiff agency and then only the provisional NOC/Clearance Certificate for the purpose of appointing defendant No,3 as new Advertising Agency will be issued. He, therefore, submitted that the provisional NOC issued by the defendant No,1 in favour of the defendants Nos.2 and 3 is illegal and liable to be suspended and set aside. He submitted that the plaintiff has made out a strong good prima facie case and the balance of convenience is also in its favour and if the instant application is not granted, the plaintiff shall be seriously prejudice and likely to sufkr irreparable loss and injury.
10. Learned counsel for the plaintiff in support of his submission has placed reliance upon the case of MANSAB ALI v. AMIR and 3 OTHERS (PLD 1971 SC 124), wherein the Hon'ble Supreme Court has held that "it is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction." He also relied upon the case of MUHAMMAD MATIN v. MRS. DINO MANEKJI CHINOY AND OTHERS (PLD 1983 Karachi 387), wherein it has been held that the plaintiff only needs to show that he has a prima facie case, that the balance of convenience betweeh the parties as well as for avoidance of complications would lie in favour of the party seeking the injunction, and lastly, that the plaintiff would suffer irreparable harm by refusal of an injunction. He further placed reliance on the case of PURI TERMINAL LTD. v. GOVERNMENT OF PAKISTAN (2004 SCMR 1092), wherein the Hon'ble apex Court held that injunction is a form of equitable relief and is to be issued in aid of equity and justice, but no to add injustice. For grant of such relief, it is mandatory not only to establish that petitioner has a prima facie case, but also that balance of convenience is on his side and that he would suffer irreparable injury/loss unless he is protected during the pendency of suit. He also placed reliance on the case of DOLLAR INDUSTRIES (PVT.) LTD. v. NISAR TRADERS AND 7 OTHERS (2011 CLD 847).
11. Mr. Salahuddin Ahmed, learned counsel for the defendant No,1 (APNS) has urged that the plaintiff never filed any complaint or statement of outstanding claims against the defendant No,2 with the defendant No,1 since 2005 about non-payment of LPS by defendant No,2 as per Rule 9-A and until such time as the defendant No,2 sought an NOC/Clearance Certificate for changing advertising agencies from the defendant No,1 in August, 2011. He urged that the plaintiffs claim for late payment surcharges relate to invoices dating back to 2005 and a majority of the said claims are, in any event, time barred and the plaintiffs claim in relation thereto are barred under the doctrines of acquiescence, waiver and estoppel. He denied that there is collusion between the defendant No,1 and defendants Nos.2 and 3 nor does the defendant No,1 bear any malice against the plaintiff. He submitted that on the request of defendant No,2 for NOC/Clearance Certificate, the defendant No,1 wrote letter to the plaintiff dated 11-8-2011 asking them to forward its objections to the same, if any, within seven days, but no such objections were communicated to the defendant No,1 within the stipulated time. He submitted that the plaintiff vide letter dated 10-10-2011 supplied the details of its claim against the defendant No,2 to the defendant No,
1. He further contended that as per plaintiffs own letter dated 10-10-2011 and statement of dues, the total claimed amount of Rs,125,879,406 includes a sum of Rs,119,414,316 by way of late payment surcharge. He also contended that the claim of LPS at the rate of 22% after 30 days of receipt of invoice is patently unreasonable and is hit by section 74 of the Contract Act as well as injunction of Islam.
12. Learned counsel for the defendant No,1 further contended that defendant No,1 lawfully issued NOC for change of advertising agency. He contended that as per the plaintiffs own statement, the actual amount owed by the defendant No,3 in respect of advertisements placed through the plaintiff was Rs,6,465,090, which amount was duly deposited with defendant No,1 prior to issuance of the said NOC. He submitted that the real purpose and intent of all of defendant No,1 Rules and Regulations is to serve and protect the common interest of the defendant No,1 member publications as opposed to that of advertising agencies nor is it the defendant No, l's duty to ensure and effect the recover of an advertising agency's dues from its clients. He also submitted that defendant No,1 is neither in breach of its Articles of. Association nor that of its Rules and the plaintiff has no locus standi to raise such grievance. He submitted that neither party chose to invoke arbitration proceedings despite being verbally reminded that such option was available. He submitted that actions were strictly in accordance with the law and conducted in all good faith and in accordance with the defendant No,1 Articles of Associations and relevant Rules. He has drawn my attention to sections 9 and 13 of All Pakistan Newspapers Society Rules and Regulations Governing Conduct of Advertising Agencies. For ready reference, sections 9(a) and 13 are reproduced as under:-- "91a) Clearance Procedures.---An accredited agency shall be liable and responsible for payment against advertisements released by it to member publications and it shall make payment of all bills submitted by member publications in respect of various accounts not later than 75 days from the last day of every clearance period in which the advertisement was scheduled. The rules and procedures governing the clearance are as under:--- ' The agencies which fail to report their outstanding bills against the clients, to the APNS within the stipulated date, their requests for extension of clearance dates will not be considered by the APNS.
"13. Accredited agencies shall follow the appointment and bifurcation rules as given under Schedule C, and provide the Society the appointment letters of their clients on the prescribed pro forma for enlistment of any new clients acquired by them at the earliest. They shdll also inform the Society in writing of any existing client lost or relieved by them. No agency shall accept or place the business of a client of another accredited agency unless one month's written notice to the Society has been given by the client concerned of its intention to shift its business to another agency, and till such change has been confirmed and notified by the Society to its member. Before finally including the client among the list of clients of the new agency, the Society shall ensure that there are no amounts lawfully due from the client to the previous agency serving the client. The Society may require the client to obtain a certificate from the previous agency to the effect that there are no dues outstanding against the client pertaining to advertising with member publications."
13. Learned counsel, however, submitted that the plaintiff has failed to make out a prima facie case and the balance of convenience is also against the plaintiff and plaintiff shall not suffer any irreparable loss in the application under reply is dismissed. He, therefore, prayed that application under reply is liable to dismissal purely on the grounds that the grievance of the plaintiff is capable of being fully redressed through monetary compensation. Learned counsel for the defendant No,1 in support of his submission has placed reliance on the cases of ISLAMIC REPUBLIC OF PAKISTAN v.
MUHAMMAD ZAMAN KHAN AND OTHERS (1997 SCMR 1508), Messrs PAKISTAN STATE OIL COMPANY LIMITED v. FEDERATION OF PAKISTAN AND 4 OTHERS (2010 CLC 1843), PAKISTAN INTERNATIONAL AIRLINES CORPORATION v. Messrs HAZIR (PVT.) LIMITED AND ANOTHER (PLD 1993 KARACHI 190), BOLAN BEVERAGES (PVT.) LIMITED v. PEPSICO. INC. AND 4 OTHERS (PLD 2004 SC 860), CITY BANK v. TARIQ MOHSIN SIDDIQUI AND OTHERS (PLD 1999 Karachi 196), HABIB BANK LIMITED v. Messrs FAROOQ COMPOST FERTILIZER CORPORATION LTD. AND 4 OTHERS (1993 MLD 1571) and PROVINCE OF WEST PAKISTAN v. Messrs MISTRI PATEL AND CO. AND ANOTHER (PLD 1969 SC 80).
14. Messrs Khalid Anwer and Rashid Anwer learned counsel for the defendant No,2 have argued that defendant No,1 is a private regulatory body and not a statutory body, which is outside the scope of C.P.C. They contended that under Order VII, Rule 1(e) the facts constituting the cause of action and the particulars must be given in the plaint itself and not only in the title, but the plaint only shows that the cause of action arose on 25-10-2011, therefore the alleged claim made on the basis of purported agreement executed in the year 2005 is illegal and unwarranted. They contended that the alleged 'financial charge' of 22% on invoices due beyond 30 days was never mentioned in either the estimate and budget summary provided by the plaintiff or in the corresponding Service Order.
They further submitted that the plaintiff has never in its regular reconciliations and statements of accounts which it sent to defendant No,2 periodically, ever claimed or raised the issue of 'financial charges' on invoices that were paid beyond 30 days from their date. They submitted that plaintiff also failed to mention the same as due and outstanding in its audited financial statements enclosed as Annexure P/24 to P/27 of the memo of plaint and in fact the plaintiff has created this issue with a mala fide intention simply so as to blackmail defendant No,2 and prevent it from shifting to another advertising agency. They further submitted that earlier also the plaintiff raised the issue of 'financial charges' was in January 2008 when defendant No,2 had first intimated to the plaintiff that it desired to appoint another advertising agency in place of the plaintiff and asked for a Provisional No Objection Certificate and when defendant No,2 agreed' to continue the relationship, this claim was dropped by the plaintiff and this issue was never raised until 2011 although the parties regularly reconciled their outstanding amounts. They further contended that no single newspaper come before defendant No,1 having any grievance against the defendant No,2. They contended that defendant No,1 issued final NOC to the defendant No,2 and the plaintiff could not be forced to defendant No,1 to recover money from defendant No,2. They further submitted that the plaintiff has suppressed true facts from this Court and the plaintiffs claim of 22% of LPS is also time barred. They also made reference to section 27 of the Contract Act, which provides that every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind is to that extent void. They also urged that once contract is concluded by issuing purchase order, any subsequent clause added in the invoice does not form part of the terms of the contract. They placed reliance on the cases of LAXMI GINNING v. AMBIT (AIR 1962 Punjab 56) and JAINARAIN RAM v. SURAJMULL (AIR (36) 1949 FC 211).
15. Learned counsel further urged that as per the plaintiffs own admission, the defendant No,1 Rules are binding on it and that defendant No,1 has the jurisdiction to decide disputes like the present one. They submitted that it is an admitted fact that defendant No,1 has already decided this matter in favour of defendant No,2 after examining the contentions put forward by both parties vide its letter dated 25-10-2011. They also urged that the plaintiffs suit is for the recovery of alleged damages suffered by the plaintiff on account of the alleged breach by defendant No,2 of a purported contract between the plaintiff and defendant No,2. It is submitted that it is settled law that no injunctions are granted in a suit for the recovery of money as there is an effective alternate remedy available and a plaintiff cannot suffer irreparable harm and injury. They further urged that most of the amount from what is claimed from defendant No,2 as 'financial charges' for print media only is already time-barred and the plaintiff has no lawful right to recover the same from defendant No,2 even if the same were due to the plaintiff. They further argued that the plaintiffs claim is for the recovery of interest at the rate of 22% on late payments for which the plaintiff has - no lawful basis for this claim as defendant No,2 never agreed to any such term and the absurdity of the plaintiffs claim is apparent from the fact, that according to the plaintiff, defendant No,2 was required to pay the same fixed penalty of 22% of the over-due amount irrespective of whether the payment had been delayed by one day or five years. They submitted that even assuming for the sake of argument that such a term had been agreed to it would be obviously be in the nature of a penalty and hence unenforceable in terms of the Contract Act, 1872. They also argued that where a penalty amount is stipulated. The claimant is not automatically entitled to the same on breach of the contract but shall receive reasonable compensation subject to determination by the Court.
They further argued that the plaintiff claims that it has suffered huge losses and was forced to take out loans in order to make payments on behalf of defendant No,2, it is submitted that this is completely false and the loans, if any, were taken by the plaintiff for its own purposes and for its own benefit. They also argued that the plaintiff has itself admitted that as a result of any late payment, it was only penalised by defendant No,1 by 2%.
16. Learned counsel for the defendant No,2 has made reference to Annexure P/8 of the memo of plaint, which is an agreement allegedly executed between the plaintiff and defendant No,2 and stated that the same contains a forged signature of Hamid Farooq, who was the then CEO of defendant No,2, which was itself provided to the defendants Nos.1 and 4 by the plaintiff vide its letter dated 17-10-2011. They submitted that defendant No,1 approached Hamid Farooq directly and he categorically denied ever having signed or executed the purported Agreement and defendant No,1 concluded that the purported Agreement was false and therefore the plaintiff was not entitled to recover the alleged 'financial charge(s)' from defendant No,2. They made reference to Rule 12 of the Rules and Regulations of the. Defendant No,1 and Rule 17 of the Rules and Regulations of the defendant No,4 and submitted that under the above quoted Rules the plaintiff is only entitled to amounts that are 'lawfully' due to it and not 'lawfully' entitle to claim any 'financial charges' from defendant No,2. They further submitted that the plaintiff always billed and invoiced defendant No,2 for any late payment surcharge that was incurred due to any late payments to a publisher and/or broadcaster which defendant No,2 duly paid. They urged that defendant. No,1 was well within its rights and its Rules to grant the No Objection Certificate to defendant No,2 vide its letter dated 25- 10-2011 with the deposit of the claimed outstanding media bills i,e, Rs,6,465,090, the decision in this regard and whether or not to refer the matter to arbitration is final. Thus, they submitted that the defendant No,1 correctly came to the conclusion that no such amounts were due as claimed by the plaintiff and hence exercised its powers to issue a No Objection Certificate to defendants Nos.2 and
3. They submitted that the plaintiff has not only failed to make out a prima facie case but it has.
Also failed to establish that it will suffer irreparable loss and injury and that the balance of convenience is in its favour as the alleged harm to the plaintiff, if proved, can easily be compensated with damages. They submitted that on the contrary it is defendant No,2 which would suffer irreparable harm and injury and the balance of convenience also lies in defendant No,2's favour dnd defendant No,2 shall be gravely prejudiced if this Application is granted. Therefore, they prayed for dismissal of instant application.
17. In support of their submissions regarding grant of injunction where irreparable injury and harm cannot be compensated in terms of money, learned counsel has placed reliance upon the cases of MUHAMMAD YAKOOB v. HEALTH OFFICER, MUNICIPAL COMMITTEE HYDERABAD AND ANOTHER (1973 SCMR 184), PROVINCE OF SINDH AND 2 OTHERS v. GHAZI KHAN (1983 CLC 1318), VIP HAIDER ESTATE v.
PICIC COMMERCIAL BANK LTD. (2002 MLD 952), DAEWOO PAKISTAN MOTORWAY SERVICES LIMITED v.
SUN SHINE SERVICES (2009 CLC 406) and ADHUNIK STEEL LTD. v. ORISSA MANGANESE (AIR 2007 SC 2563). Learned counsel in respect of their submissions that where a penalty amount is stipulated the claimant is not automatically entitled to the same on breach of the contract but shall receive reasonable compensation subject to determination by the Court has relied upon the cases of PROVINCE OF WEST PAKISTAN v. Messrs MISTRI PATEL AND CO. (PLD 1969 SC 80), ALLAH DITTA v. ABDUL KHALIQUE (2006 CLC 1152), NIGAH-E-KARIMEE ENTERPRISES v. TRUST INVESTMENT BANK LTD. (2005 CLC 912), ALLIED BANK OF PAKISTAN v. ASISHA GARMENTS (2001 MLD 1955), NATIONAL DEVELOPMENT FINANCE CORPORATION v. MOONA LIZA FRUIT JUICES LIMITED (1999 YLR 500) and FATEHCHAND v.
BALKISHAN DAS (AIR 1963 SC 1405).
18. Mr. Tasawur Ali Hashmi, learned counsel for the defendant No,3 contended that the defendant No,3 is the worst sufferer on account of stay granted by this Court on 31-10-2011. He submitted that defendant No,1 in pursuance of rules and regulations issued the NOC/Clearance Certificate to the defendant No,2 to appoint defendant No,3 as an advertising agent. He submitted that plaintiff has not failed to make out any neither prima facie case nor balance of convenience lies in neither its favour nor it shall suffer irreparable loss rather the defendants Nos.2 and 3 shall suffer irreparable loss if restraining orders as prayed are granted by this Court. He therefore prayed for dismissal of injunction application.
19. Ms. Saman Rafat Imtiaz, advocate for the defendant No,4 has referred Rule 17 of Pakistan Broadcasters Association Rules and Regulations Governing Conduct of Advertising Agencies/MBHs and submitted that according to such Rule the advertiser is required to obtain a certificate from the previous advertising agency to the effect that there are no dues outstanding against such advertiser. She submitted that defendant No,2 informed the answering defendant about the appointment of defendant No,3 vide their letter dated 5-8-2011. She submitted that after receiving the letter of defendant No,2 the defendant No,4 wrote letters to the plaintiff and defendant No,2 requesting each of them to provide their comments. She urged that the ' answering defendant has not issued any notification t9 its members regarding the appointment of defendant No,3 by defendant No,2 to date in view of Rule 17 of PBA Rules. Rule 17 of PBA is reproduced below:-- "17. Accredited Agencies/MBHs shall for the appointment and bifurcation rules as given under Schedule "B", and provide the Association with appointment letter of their clients on the prescribed Pro forma (Annexure "C") for enlistment of any new clients acquired by them at the earliest. They shall also inform the Association in writing of any existing client lost or relieved by them. No Agency/MBH shall accept or place the business of a client of another accredited Agency/MBH unless one month's written notice to the Association has been given by the client concerned of its intention to shift its business to another Agency/MBH, and till such change has been confirmed and notified by the Association to its members, any agency/MBH which is found to infringe/contravene the aforesaid process/mechanism will be liable to consequences as prescribed under rule 20.
Before finally including the client among the list of clients of the new Agency/MBH, the Association shall ensure that there are no amounts lawfully due from the client to the previous Agency/MBH serving the client. The Association may require the client to obtain'a certificate from the previous Agency/MBH to the effect that there are no dues outstanding against the client pertaining to advertising with Broadcast House."
20. In rebuttal, Mr. Abid S. Zuberi, advocate for the plaintiff has argued that plaintiff has also filed a claim before defendant No,4. He argued that defendant No,2 applied for NOC to defendant No,4 but the defendant No,4 has not issued NOC. He further argued that no arbitral proceedings took place and the Secretary has no jurisdiction to take decision but it is the power of the Society to issue NOC/Clearance Certificate. He submitted that nothing has been suppressed by the plaintiff and knock the door of this Court with clean hand. He further contended that similar dispute arisen in the year 2008 and both the regulatory bodies viz: defendant No,1 and defendant No,4 on the complaint of the plaintiff suspended advertisement of defendant No,2 for their failure to clear the outstanding bills of the plaintiff, however, the matter was amicably settled and the defendant No,2 agreed to pay the outstanding amount including LPS. He forcefully argued that signature of the then CEO on agreement dated 1-8-2005 is not forged. He submitted that even otherwise the invoices and service orders are sufficient to evidence that parties were ad idem as to the 22% LPS. He, however, submitted that under section 3 of the Specific Relief Act, it is the duty of the defendant No,1 to enforce its own law and as per law of defendant No,1 once disputed amount is paid NOC shall be issued. He also made reference to section 9, C.P.C., which provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. He submitted that letter dated 25-10-2011 is not an arbitral decision.
He submitted that plaintiff has made out a prima facie case as defendant No,2 has failed to act in accordance with law and the APNS Rules and has rather dealt with the plaintiffs claim in a mala fide manner. He submitted that balance of convenience also lies in favour of the plaintiff as it is on the brink of collapse due to the conduct of the defendant No,2 and grant of injunction as prayed will not affect the defendant No,2 and its claim are exaggerated as it has not been publishing its ads for a very long period of time.
21. Mr. Zuberi has placed reliance upon the cases of JEWAN AND 7 OTHERS v. FEDERATION OF PAKISTAN AND 2 OTHERS (1994 SCMR 826), SAMAR GUL. v. CENTRAL GOVERNMENT AND OTHERS (PLD 1986 SC 35), SHARAF FARIDI AND 3 OTHERS v. THE FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN (PLD 1989 Karachi 404), GOVERNMENT OF SINDH v. SHARAF FARIDI AND OTHERS (PLD 1994 SC 105) and CHIEF JUSTICE OF PAKISTAN IFTIKHAR MUHAMMAD CHAUDHRY v. PRESIDENT OF PAKISTAN (PLD 2010 SC 61).
22. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case-law cited at the bar.
23. The main thrust of the arguments of Mr. Abid S. Zuberi, learned counsel for the plaintiff is in respect of levy of 22% Late Payment Surcharge in case the bill is not paid within 30 days from the date of publication/transmission and if claimed amount of Rs,125,879,406 is deposited with the defendant No,1 and Rs,337,866,308 is deposited with the defendant No,4 by defendant No,2, the plaintiff has no objection to shift/change the agency.
24. In order to examine the legality of charging 22% Late Payment Surcharge, I have gone through the agreement dated 1-8-2005 as well as the all invoices enclosed with the memo of plaint, so also the contents of various letters exchanged between the parties, but unable to find anywhere the defendant No,2 acknowledged 22% LPS. The defendant No,2 only admitted the outstanding amount relating to advertisement due against it and not 22% LPS. Such condition of 22% financial charge has been written/printed at the bottom of every invoice, but the same has not been mentioned in the column of description and amount to show that how much amount in respect of finance charge is due against the defendant No,2. The plaintiff claimed that since 2005 the defendant No,2 has failed to make payment in time due to which plaintiff is facing financial constraints, borrowed loans even to the extent that it has gone bankrupt, but neither demanded such amount from the defendant No,2 nor filed any complaint to defendants Nos.1 and 4. The plaintiff if serious to recover such amount, he should had to issue legal notice to defendant No,2 asking financial charge of 22%, but till date no notice has been issued to the defendant No,2.
25. Scrutiny of record further reveals that in the year 2008 when the defendant No,2 intimated to the plaintiff that it desired to appoint another advertising agency in place of the plaintiff, the plaintiff raised the issue of 'financial charges' and when defendant No,2 agreed to continue the relationship, the plaintiff dropped its claim and this issue was never agitated till defendant No,2 written a letter dated 10-8-2011 intimating the plaintiff discontinuation and requested to issue provisional NOC. The plaintiff immediately raised the claim of financial charges. The agreement (Annexure P/8) on the basis of which the plaintiff claim 22% LPS was categorically denied. Such agreement was placed before defendant No,1 and defendant No,4 by the plaintiff itself. When complaint was lodged by plaintiff for recovery of outstanding amount to defendant No,1, the defendant No,1 in order to verify the execution of said agreement between the plaintiff and defendant No,2 sent a letter dated 18-10-2011 along with copy of agreement to Hamid Farooq, the then CEO defendant No,2, who vide his letter dated 21-10-2011 stated that "it appears that these signatures have been forged." He further stated that "I am used to of this practice throughout my career that I never sign an agreement unless the relevant people within the organization review and initial the document under consideration. This agreement does not contain any other evidence/witness except for CEO's signature." Even if it is assumed that the agreement/contract was executed between the plaintiff and defendant No,2, but putting the condition of charging 22% LPS is not justifiable, as it is a unique example that plaintiff charged 22% of the over-due amount irrespective of whether the payment had been delayed for one day or unlimited period. It is certainly in the nature of penalty and unenforceable in terms of the Contract Act. Additionally, the plaintiff itself admitted in its letter dated 30-1-2008 written to the defendant No,2 that defendant No, 2 has not signed the agreement/contract. For advantageous, it may be reproduced the relevant portion as under:-- "Furthermore, you choose to call creative agency pitches, seek NOC for media release and do not even sign a contract which you committed. Let me also take this opportunity of putting on record how the previous contract (still not received by us) was done. If you recall, after more than a year's deliberation when you sent it to us, it was not signed by you. We signed and sent it long time back but to date it has neither been signed by you nor sent it to us."
26. It appears that all the accredited advertising agencies of defendant No,1 are working under Rules and Regulations Governing Conduct of Advertising Agencies. I have gone through the said Rules and Regulations, which provides the complete mechanism how accredited agencies run their business like clearance schedule for accredited advertising agencies, last date for billing and filing statement of dues, last date for filing complaints by agencies against clients. I have also gone through clause 18 of Advertisement Rules and Code of Ethics, upon which the plaintiff itself relied and also quoted the same in its letter dated 20-8-2011, in the memo of plaint and in the counter- affidavit. Reading of Clause 18 quoted by plaintiff in the above referred places by omitting few words, which might goes against it. It is important to reproduce Clause 18 of Advertisement Rules and Code of Ethics and Clearance Schedule for Accredited Advertising Agencies, which read as under:-- "18. The advertiser shall pay dues to the advertising agency, not later than 45 days from, the date of issue of Aaencu Invoices. Where an advertiser fails to pay and in consequence the agency is unable to pay publications, APNS upon being authentically informed by the Agency and being so satisfied will advise its member publications to suspend the advertisements of the concerned advertiser, until payment is realized. This is Without prejudice to the agency's clear liability to pay its dues even if its clients have not paid."
(C) Last dates for filing complaints by agencies against Clients:-- Jan-Feb Clearance period 30th April Mar-Apr Clearance period 30th June May-Jun Clearance period 30th August July-Aug Clearance period 30th October Sept-Oct Clearance period 30th December Nov-Dec Clearance period 28th February
(G) Schedule of Late Paym ent Surcharge:-- Cl Period No LPS 1% LPS 2% LPS 3% LPS 4% LPS Jan-Feb 16th May to 22nd May23rd May to 29th May30th May to 6th June7th Jun to 14th Jun15th Jun to 22 jun Mar-jun 16May to 22 May23 Mar to 29 Mar30 July to 6 Aug7 Aug to 14 Aug15Aug to 22 Aug May-jun 16 Sep to 22 Sep23 Sep to 29 Sep30 Sep to 6 Oct7 Oct to 14 Oct15Oct to 22 Oct July-Aug 16 Nov to 22 Nov23 Nov to 29 Nov30 Nov to 6 Dec7 Dec to 14 Dec15Dec to 22th Dec Sept-Oct 16 Jan to 22 Jan23 Jan to 29 Jan30Jan to 6 Jan7 Feb to 14 Feb15 Feb to 22th Febndth ndth thth TH ndTH ndth thth TH ndTH ndth thth nd ndth th th Nov-Dec 16 Mar to 22 Mar23 Mar to 29 Mar30Mar to 6 Apr7 Apr to 14 Apr15 Apr to 22 Apr
27. The bare reading of above quoted clause and schedule of payment clearly shows that advertiser shall pay dues to the advertising agency, not later than 45 days from the date of issue of agency invoices and in case advertiser fails to pay, the agency informed the APNS and APNS advise its member publications to suspend the advertisements of the concerned advertiser, until payment is realized. The plaintiff itself submitted that defendant No,2 has not paid/clear the amount due against it since 2005, but the plaintiff has not lodged any complaint to defendant No,1 and defendant No,4 to suspend its advertisements, but continues this process even he had to borrow money. The defendant No,1 stated that no complaint has been filed by plaintiff until August, 2011.
The plaintiff for the first time filed a detailed statement showing 22% financial charges over 30 days from October, 2005 due against defendant No,2. The plaintiff claimed Rs,125,879,406 includes a sum of Rs,119,414,316 of 22% LPS and if the amount of LPS minus from the total amount claimed by the plaintiff in respect of print media comes to Rs,6,465,090, which has admittedly been deposited by defendant No,2 to defendant No,1, therefore, the defendant No,1 issued NOC/Clearance certificate to defendant No,2 for shifting the agency.
28. As regards the contention of Mr. Abid S. Zuberi that no arbitral proceeding initiated by defendant No,1, therefore, the issuance of NOC in favour of defendant No,2 is illegal and void ab initio, it may be observed that under Clause 6 if a dispute is established on issuance of the clearance certificate/NOC, the APNS Secretariat may issue a provisional clearance on receipt of, payment of the disputed amount as trust money by the clients for arbitration by the APNS Secretariat, but there is no mention that arbitration proceeding will be initiated under Arbitration Act.
29. It is well settled proposition of law that relief of injunction is discretionary and court is not bound to grant it in every case and it is not to be granted unless the court is satisfied as to its real need.
The discretion is to be exercised in accordance with reasons and sound judicial principles. Court while dealing with application for grant of injunction has to look and to assess all the circumstances obtaining the suit and more so, to equitable relief. Discretion vested in a court of law has to be exercised judicially and equitably ensuring all the times, that twain of law and justice are adequately applied and administered. In the case in hand, the plaintiff itself defaulted by not submitting his claim in time and approached the Court when defendant No,2 desired to discontinue its services and if the defendant No,2 not requested for issuance of NOC/Clearance Certificate the plaintiff never raised issue of 'financial charges'. The above act of plaintiff clearly shows its mala fide against defendant No,2.
30. From the tentative assessm ent of material available on the record, I am of the considered view that the plaintiff has no prima facie case at this stage. The balance of convenience is also not in favour of the plaintiff as great inconvenience will be caused to the defendants in exercising their legal rights to deal with the subject matter as per law. No irreparable loss will be caused to the plaintiff, if injunction is refused, because the loss, if any, can be compensated in the shape of damages.
31. In the light of what has been discussed above, the C.M.A. No,10906 of 2011 is dismissed with no order as to cost and interim order passed on 31-10-2011 is vacated. C.M.A. No,11009 of 2011 is allowed as prayed for. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.