MUHAMMAD TASNIM, j. - Since common question of fact and law is involved in all the three above- mentioned suits hence C.M.A. Nos. 457, 463 and 461 of 2011 filed by plaintiffs under Order XXXVIII, Rule 5, C.P.C. Are being disposed of with this common order.
In all the three suits the facts in brief, as per plaint, are that plaintiffs imported Crude Palm Oil from Malaysia, which reached Karachi through M.T. "NEW TOYOKAZE". On arrival and after delivery, it was noticed that there was short landing of 63.237 (Suit No. 636/2010), 65.467 (Suit No. 1673/2010) and 35.551 (Suit No. 1705/2010) Metric Tons of Crude Oil hence these regular suits were filed against defendant No. 1-M/s. Golden Alpine Maritime Pte. Ltd., defendant No. 2-M/s. Glory Ship Management Pte. Ltd., and defendant No. 3-M/s. Alpine Marine Services (PVT) Ltd., for decree of US $ 66,668.00 (in Suit No. 636/2010), US $ 71.247.00 (in Suit No. 1673/2010) and US $ 38,551.00 (in Suit No. 1705/2010).
3. After service of summons, written statement was filed by the defendants, wherein they have denied the allegations made by the plaintiffs.
4. On 15.01.2011 listed applications under Order XXXVIII, Rule 5, C.P.C., were filed for attachment before judgment against vessel M.T "GALAXY". Notices of these applications were served upon the defendants.
5. It is the case of the plaintiffs that defendant No. 2-M/s. Glory Ship Management Pte. Ltd., is group owners/ beneficial owners/managers/operators of M.T "GALAXY", who is also the group owner/beneficial owner/manager/ operator of other vessel M.T. "NEW TOYOKAZE" hence they are sister-ships. The plaintiffs have prayed for order of attachment before judgment in terms of Order 38, Rule 5, C.P.C.
6. The defendants in their counter-affidavit have vehemently denied the contentions raised by the plaintiffs arid submitted that applications against M.T. "GALAXY" and its bunker are frivolous, misconceived and liable to be dismissed. It was also denied that defendant No. 2 is the holding company or group beneficial owner of vessel M.T. "NEW TOYOKAZE". It was further denied that defendant No. 2 are the group owners/beneficial owners of M.T. "GALAXY". Defendants have also denied that both the above7. Mr. Mazhar Imtiaz Lari, learned counsel for plaintiffs has submitted that defendant No. 2 is manager/ operator of M.T. "NEW TOYOKAZE" and M.T "GALAXY" and there is likelihood that they may scrap the M.T. "NEW TOYOKAZE" then plaintiffs will not be able to execute the decree which may be passed against defendants hence attachment orders are prayed for.
8. Mr. Khalid A. Rehman, learned counsel for defendants has submitted that M.T "GALAXY" is not owned by any of the defendants, hence 352 C.L. Pakistan Company & Tax Law Reports Vol. XVIII no attachment order can be passed against M.T. "GALAXY". He further submitted that plaintiffs have already filed regular suits against the defendants, which are being contested by the defendants and the same shall be disposed of after recording of evidence of the parties. He further submitted that plaintiffs except making-assertion in the affidavit that M.T. "NEW TOYOKAZE" is being scraped, no material to substantiate the above fact has been brought on record. He has further submitted that provisions of Order 38, Rule 5, C.P.C are not attracted in the circumstances of the case for the simple reason that M.T "GALAXY" has no concern with defendants more particularly defendant No. 2 is not registered owner of M.T. "GALAXY".
9. The crucial point, which requires consideration is that as to whether M-T. "GALAXY" is owned by any of the defendants or is a sister-ship. The plaintiffs along with applications have filed number of documents, annexure 'A' whereof clearly shows that ship M.T. "NEW TOYOKAZE" is owned by its registered owner namely M/s. Golden Alpine Maritime Pte. Ltd. And the defendant No. 2 has been shown as technical manager. Whereas the documents filed by the plaintiffs themselves show that M.T. "GALAXY" is owned by its registered owner namely M/s. Galaxy Maritime Limited S.A, and M/s. Glory Ship Management Pte. Limited has been shown as technical manager. Similarly defendants have also brought on record number of-documents, which also show that M.T "GALAXY" is owned by M/s. Galaxy Maritime Limited S.A. And M.T. "NEW TOYOKAZE" is owned by M/s. Golden Alpine Maritime Pte. Ltd. In this view of the matter, both the ships are not owned by one registered owner.
There is no material available on record to suggest that defendant No. 2 is the co-sharer in the ownership of above two vessels. In this view of the matter both the ships are not sister-ships and any claim against M.T. "NEW TOYOKAZE" cannot be pressed against M.T "GALAXY".
10. Now taking up the provisions of Order 38, rule 5, C.P.C., it will be advantageous to quote Order XXXVIII, Rule 5, C.P.G., as under:--- "5. Where a defendant may be called upon to furnish security for production of property.- (1)
Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be * passed against him-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, The Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and Show-Cause whey he should not furnish security.
(2) The plaintiff shall, unless, the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified."
11. Order XXXVIII, Rule 5, C.P.C. Quoted hereinabove attracts only for order of attachment before judgment. Rule 5 postulates that it may be proved to the satisfaction of the Court that the defendants own property and with intent to obstruct or to delay the execution of any decree that may be passed against him, is about to dispose of the whole qr any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court.
In determining whether defendants with intent to obstruct or to delay the execution of any decree that may be passed against him about to dispose of or about to remove the whole or any part of the property, the Court shall take into account all the circumstances of the case while passing any order in terms of Order XXXVIII, Rule 5, C.P.C
12. As held above M.T. "GALAXY" is not owned by any of the defendants hence any attachment order in terms of Order XXXVIII, Rule 5, C.P.C. Cannot be passed against M.T "GALAXY", which is neither party to the proceedings nor any claim against said vessel appears to have been made in the above suits. Except the assertions of the plaintiffs that the defendant No. 2 is manager/operator will not bring the case of the plaintiffs within four corners of the provisions of Order 38, Rule 5, C.P.C.
13. In the circumstances, applications (C.M.A.Nos.457, 463 & 461 of 2011) filed by the plaintiffs merit no consideration, which are accordingly dismissed.