' SYED HASAN AZHAR RIZVI, J.---By this order I propose to dispose of applications listed at Serial Nos.1, 6, 8 and Nazir reports dated 16-12-2013 and 24-1-2014. C.M.A. No,10015 of 2013, under Order XXXIX, Rules .1 and 2, C.P.C. And C.M.A. No,423 of 2014 for review of order dated 9-1-2014 filed by the plaintiffs, whereas C.M.A. No,199 of 2014, under Order XXXIX, Rule 4, C.P.C. Filed by defendant No,1 in the above-noted suit 2, In nutshell the facts are that plaintiffs and the defendant No,1 had business relations for the last 13/14 years. The plaintiffs and defendant No,1 entered into six agreements for supply of 8917 metric tons of sugar for the years 2011-2012 against which an amount of Rs,375,500,000 was paid in advance by the plaintiffs, which has been acknowledged by the defendants and as a security/surety issued post-dated cheques, details of the same are mentioned in the memo of plaint, to the plaintiffs. It has been averred in the memo. Of plaint that defendants approached the plaintiffs at the start of the season 2011-2012 requesting for rescheduling deliveries of sugar and repayment since the crop had been hit by flood and the plaintiffs keeping in view the genuine reason of flood agreed to reschedule the deliveries on their forward contracts, but the defendants failed on their promises and did not make the deliveries according to the revised schedule. It has been further averred in the memo of plaint that the defendants again approached the plaintiffs for another grace period for the delivery of sugar and issued further post-dated cheques to replace the earlier ones and thereby novating the agreements to the extent of delivery schedule, however, when the time for delivery of sugar arrived, the defendants once again approached the plaintiffs for relaxation on delivery of sugar with promised that they will deliver the said sugar made in the upcoming seasons and plaintiffs again rescheduled the deliveries on their forwards contract after accepting further cheques dated 31-7-2013 of the same amount to replace the earlier ones. It has also been averred in the memo of plaint that despite the above flexibility awarded to the defendants they had failed to supply sugar to the plaintiffs incurring further losses to the same in form of default on forward contracts amongst other things. The plaintiffs approached the defendants in light of the said breach, however the defendants did not agree to supply the sugar as promised in the said agreements. It is important to note that the breach of the defendants has led the plaintiffs defaulting on their forward contracts. Since the plaintiffs had made 100% advance payment to the defendants, they were financially incapable to procure the same amount of sugar from the market to satisfy the claims of the forward contracts thereby resulting in the loss of clientele and still practically impossible to procure the required amount of sugar from the open market i.e, 21542 Metric Tons of Sugar, and the only way of obtaining the said sugar to satisfy the forward contracts of the plaintiffs is for the defendants to supply the said amount of sugar to the plaintiffs. It has further been averred in the memo. Of plaint that defendants apprehending any legal action from the plaintiffs malafidely filed a Civil Suit No,1076 of 2013.
3. I have heard Mr. Haider Waheed, learned counsel for the plaintiffs, Ejaz Ahmed, learned counsel for the defendant No,1 and Mr. Zeeshan Abdullah, learned counsel for the defendants Nos.2 and 3.
4. Mr. Haider Waheed, advocate for the plaintiffs has advanced his arguments in support of their applications bearing C.M.As. Nos.10051 of 2013 and 423 of 2014 and against application filed by defendants bearing No,199 of 2014 under Order XXXIX, Rule 4 read with section 151, C.P.C. He made reference to Paragraphs (2), (3), (4) and (5) of the memo. Of plaint in Suit No,1076 of 2013 filed by the defendants and contended that the defendants admitted the execution of agreements and issuing of post-dated cheques to the plaintiffs as security/surety. He further contended that the defendants have not delivered sugar to the plaintiffs, in line with the said agreements and commitments made thereafter as the plaintiffs are in possession of the Original Delivery Orders of the sugar in question and the defendants have only attached 'Office Copies' with their plaint. He also contended that the delivery orders are treated as negotiable instrument(s), and the bearer can present the same at the sugar mill for delivery and only upon presentation of the delivery order the transport trucks of the bearer can enter the mill, and thereafter each truck is issued a gate pass for evidencing the confirmation of delivery. The defendants have falsely contended that the said sugar has been delivered and such is evidenced by the fact that the original delivery orders are in possession of the plaintiffs, and the defendants have not provided for any gate passes or documents identifying the trucks upon which the said sugar was delivered. It may be emphasized that only upon presentation of the delivery order the transport trucks of the bearer can enter the mill, and thereafter each truck is issued a gate pass for. Evidencing the confirmation of delivery which mentions the Truck No, Name of the Driver and his CNIC and the destination where the sugar is being transported. Hence if the defendant has supplied sugar to the plaintiff, it can be easily verified from the record of the Mill. He also argued that the defendants have malafidely omitted the dates and quantities of the sugar supplied to the plaintiffs as the office copy of delivery orders attached by the defendants with their plaint in Suit No,1076 of 2013 are dated prior to the agreement(s) and/or prior to the maturity dates of the agreements. He further argued that in case the defendants did actually produce sugar and supplied the same to the plaintiffs in pursuance of the said agreements, why did they issue further cheques to secure payment of the same.
5. Learned counsel for the plaintiff submitted that the instant suit has been filed by the plaintiffs and this Court vide order dated 20-9-2013, restrained the defendants from creating any third party interests in respect of 21542 Metric Tons of Sugar and also ordered spot inspection and directed the Nazir of this Court to comply with the same. The Nazir conducted spot inspection, with police aid, and submitted a report dated 8-10-2013 before this Court, wherein it was stated that 4027 Bags containing Sugar (50 Kg each), in addition with 924 Bags (50 Kg each). He further argued that the plaintiffs had learnt from reliable sources that the defendants are unlawfully creating third party interests in the said property despite the stay order therefore the plaintiffs filed C.M.A. No,13521 of 2013 for appointment of Receiver and another spot inspection application and this Court vide order dated 6-12-2013, allowed the spot inspection application, and ordered notice on the receivership application. He contended that in compliance of the above order the Nazir again conducted inspection of the subject premises and submitted his report on 16-12-2013, wherein he stated that the earlier stock of 924 bags and 4027 bags (50 Kg each) were lying at the mill and a fresh produce of 36320 bags (50 Kg each) were lying at the mill. Learned counsel for the plaintiffs urged that despite the injunctive orders defendants are continuing to sell the sugar and creating third party interest the plaintiffs immediately filed Contempt Application bearing C.M.A. No,119 of 2014 and application for inspection being C.M.A. No,120 of 2014 and this Court vide order dated 6-1-2014 restrained the defendants from creating third party interests on the subject property (to the extent of 21542 Metric Tons of Sugar). The order restrained the defendants from creating third party interests in the sugar produce including, but not limited to, the sugar crop for the year 2013-14. This would be a necessary implication since the Nazir Reports depicted that the sugar already lying at the mill did not accumulate to arrive at the figure of 21542 Metric Tons, and therefore the sugar produce of the current and upcoming seasons would have to be included to satisfy the order of this Court. He further contended that on 9-1-2014, in the absence of the plaintiffs' counsel, this Court modified the order 6-1-2014 on an application filed by the defendants under Order , Rule 4, C.P.C. By amending the order to the extent that the restraining order does not apply on the sugar crop for the year 2013-2014. Learned counsel vehemently urged that order dated 6-1-2014 cannot be implemented to the extent of 21542 metric tons of sugar if the sugar crop for the year 2013-14 is not taken into account. He contended that the defendants while obtaining the order dated 9-1-2014 was not properly assisted this Court as the agreements, which is subject matter of the suit, do not apply only to the sugar crop for the season 2011-12 since the agreements have been novated by way of conduct and submission of new cheques in place of the earlier ones therefore the plaintiffs being aggrieved filed review application (C.M.A. No,435 of 2014) for recalling the phrase the restraining order does not apply on the sugar crop for the year 2013-14.
6. Learned counsel for the plaintiff next contended that this Court has ample power to review its order if on the face of the record it is shown that there has been a misappreciation of fact making the order of this Court non-executable. He contended that in the instant case, since a restraining order dated 6-1-2014 cannot be executed to the extent of 21542 Metric Tons unless the sugar crop for the season 2013-14 is included, a review application may lie in order to rectify such error. He further contended that this Court was not properly assisted to the effect that the said agreements had been novated to the extent of the delivery schedule and applicable sugar crop through submission of new cheques of the year 2013 and therefore the sugar crop of the year 2013-14 and the upcoming seasons would be included. He submitted that the consideration for the said rescheduling (novation) was that the defendant agreed to supply extra sugar in accordance with the default clause in the said agreements. He also submitted that the plaintiffs have sought for the specific performance of the said agreements inasmuch as they have prayed for the promised sugar to be delivered. He made reference to section 58 of the Sale of Goods Act, 1930 and states that this Court has ample power to enforce specific performance of a contract in relation to movable property and the facts of the instant case falls under the ambit of section 54 of the Specific Relief Act, 1877, more specifically under section 54(c) and (d) of the Specific Relief Act, 1877.
He submitted that in the instant case, the abovementioned provisions of law are applicable as the breach of the defendants has led the plaintiffs defaulting on their forward contracts. Since the plaintiffs had made 100% advance payment to the defendants, they were financially incapable to procure the same amount of sugar from the market to satisfy the claims of the forward contracts thereby resulting in the loss of clientele. He, therefore, prayed for confirmation of stay by reviewing/recalling the order dated 9-1-2014 and prayed for dismissal of application of the defendants C.M.A. No,199 of 2014. In support of his submissions, learned counsel has placed reliance on the cases of LAND ACQUISITION OFFICER AND ASSISTANT COMMISSIONER, HYDERABAD (PLD 2005 SC 311), MOLASSES EXPORT CO. LTD. v. CONSOLIDATED SUGAR MILLS LTD. (1990 CLC Karachi 609), AMAR LAL v. PRINCIPAL NISHTAR MEDICAL COLLEGE MULTAN AND 6 OTHERS (2005 CLC Lahore 884).
7. On the other hand, Mr. Ijaz Ahmed Zahid, learned counsel for defendant No,1 and Mr. Zeeshan Abdullah, learned counsel for the defendants Nos.2 and 3 in reply to the arguments of the learned counsel for the plaintiffs have argued that this Court has rightly passed order dated 9-1-2014 to clarify the interim order as it does not apply to the sugar of the crop season 2013-14 and as such the order is not liable to be reviewed as the order under review does not change the interim injunction but only clarifies that the same does not apply on the sugar of crop season 2013-14. They urged that the review application is beyond the scope of section 114 read with Order XLVII, Rule 1, C.P.C. As it does not discloses the discovery of any new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the plaintiffs or the plaintiffs could not produce when the order under review was passed and no mistake/error apparent on the face or any other sufficient reasons has been shown for the review of the said order. They further urged that order which sought to be reviewed was passed by this Court after perusal of contents of the memo of plaint of the instant suit, which explicitly provides subject matter of the suit is white refined sugar season crop 2011-12. They also urged that through the instant suit the plaintiffs are seeking specific performance of all the said six agreements and prayed that the defendants may be directed to supply the aforesaid commodity in performance of the agreements. They contended that plaintiffs along with the suit also filed application for injunctive relief whereby seeking restraining order to the effect that the defendants may be restrained from creating third party interest in respect of 21542 metric tons white sugar of crop season 2011-12 lying at the factory premises of the defendant No,1 was misleading statement as it was in the knowledge of the plaintiffs that they said commodity was not lying or available at the factory of defendant No,1 and the Court while granting interim order on 20-9-2013 appointed Nazir to inspect the factory/mill of defendant No,1 and submit report. The Nazir conducted the inspection and submitted his report which shows that only 247.55 metric tons of sugar was lying at the factory/mill of defendant No,1, which also does not pertain to the crop season 2011-12. This substantiates that the plaintiffs misled this Court by claiming that the 21542 metric tons white sugar was lying at the factory/mill of defendant No, 1 .
8. Learned counsel next contended that the discrepancy that is now being alleged by the plaintiffs in its review application has arisen on account of misleading statement made in the injunction application and it is not the result of the clarification of the order, therefore, the plaintiff cannot be allowed to benefit from its own misrepresentation. They stated that plaintiffs are seeking specific performance of six contracts of supply of a specific commodity i.e, white refined sugar pertains to the crop season 2011-12, it is submitted that the said sugar not exists at present, therefore, the application for review/recalling of the order dated 9-1-2014 is not justified for the reason that if the order is reviewed or modified as prayed the same would be amounting to grant a relief of interim injunction beyond pleadings and subject matter of the suit, which is not permissible under the law.
They further pointed out that contracts of sale of goods are not the contracts which are capable of being specifically performed and in relation to such contracts a permanent injunction under section 56(f) of the Specific Relief Act cannot issued and where a permanent injunction cannot be issued the question of granting interim injunction also does not arise. They submitted that in the instant case the subject matter of the contracts is not ascertainable goods, therefore, the bar of section 56(f) of the Specific Relief Act is fully attracted. They also submitting that keeping in view the particular facts and circumstances of the instant suit the interim injunction, particularly, when the commodity subject matter of the instant suit is not available, may not be granted. They submitted that the controversy involved in the instant suit cannot be resolved without recording evidence of the parties, therefore, the prayer of the plaintiffs that the 21542 metric tons sugar may be ordered to be confiscated is unwarranted, particularly, in view of the fact that the said commodity for the season 2011-12 do not exit.
9. In the end learned counsel argued that no case for grant of interim injunction is made out as no illegality prima facie exists. They also submitted that balance of convenience is in favour of defendants. They further submitted that no irreparable loss will be caused to the plaintiffs if the injunction is refused. They submitted that at the most if the plaintiffs succeeding in the titled suit monitory compensation in the shape of damages as claimed by plaintiffs in the prayer clause will provide complete redress. They prayed for grant of C.M.A. No,199 of 2014 and dismissal of C.M.As.
Nos.10015 of 2013 and 423 of 2014 with cost. In support of their submissions, they placed reliance on the cases of ALL PAKISTAN TEXTILE MILLS ASSOCIATION v. FEDERATION OF PAKISTAN AND 2 OTHERS 2009 Lahore 494), MESSRS PETROCOMMODITIES (PVT) -M. v. RICE EXPORT CORPORATION OF PAKISTAN (PLD 1998 Karachi 1), BOLAN BEVERGES (PVT.) LIMITED v. PEPSICO. INC. AND 4 OTHERS (2004 CLD 1530), TAHIR ZAMAN v. JIN WEI (M) SDN BHD AND OTHERS (2004 CLD 603), ZAWAR PATROLEUM v. O.G.D.C.
AND OTHERS (2003 YLR 1450), COCA COLA BEVERAGES PAKISTAN LIMITED v. ABDUL HAMEED CHAUDHRY (2001 YLR 568), MESSRS GULF PACIFIC FERTILIZER v. MESSRS ALI AKBAR ENTERPRISES AND 2 OTHERS (2000 MID 1537), GOVERNMENT OF PAKISTAN AND 3 OTHERS v. KAMRUDDIN VALIKA (1996 CLC Karachi 1086), DADA STEEL MILLS v. METALEXPORT AND 5 OTHERS (1985 CLC 1814) and MUHAMMAD AZAM MUHAMMAD FAZIL & CO. v. MESSRS N.A. INDUSTRIES, KARACHI (PLD 1977 Karachi 21).
10. In rebuttal, learned counsel for the plaintiffs it has been argued by the defendants that in case of plaintiffs have asked for damages as an alternative prayer, the same cannot seek specific performance of a contract, it is submitted that under the theory of Order II, Rule 2, C.P.C. a plaintiff should ask for all possible remedies within one civil suit, as the same is barred from filing an independent case for seeking a different remedy for the same cause of action. Therefore, seeking damages as an alternative prayer cannot bar the plaintiffs from seeking specific performance. He further urged that the defendants have unlawfully averred that the plaintiffs are attempting to recover usurious loans in the garb of specific performance of an agreement, which is specifically denied that such is the case, as the agreements are for the delivery of sugar with consideration as has been admitted by the defendants themselves in Suit No,1076 of 2013. He urged that the defendants have specifically admitted the said agreements were for the supply of sugar, cheques were given as surety, and cheques of the year 2013 were also issued by the defendants as surety.
He, therefore, submitted that when the defendants have admitted that the said agreements were for the supply of a commodity and not just a money based transaction, then the argument of interest and money based lending cannot survive. In pursuance thereof, the plaintiffs have a legal cause of action upon which this Court may take cognizance. He submitted that the defendants' counsel argued that the sugar industry being overly regulated, and having dearth of finances, the defendants had to approach the market for financial solutions thereof. It is submitted that such solutions entailed selling sugar in advance at discounted prices for deliveries during the season.
Such activity is not illegal, and in fact the same financial strategy is followed by the sugar mill whilst purchasing raw materials for the mill. The plaintiffs and the defendants were performing such business transactions since the last decade and, even more without any reservations to either side. The defendants are leveling such allegations as mala fide afterthought only for the purposes of backtracking on their obligations agreed in the said agreements/contracts. Moreover, it is submitted that the defendants are taking contradictory stance in their pleadings evidencing their mala fides amongst other things.
11. Learned counsel, besides above, also submitted that the plaintiffs have a lien over the sugar produced/stored by the defendants to the extent of 21542 Metric Tons in accordance with the said agreements. It is submitted that the plaintiffs are seeking specific performance of the agreements relating to white refined sugar amounting to 21542 Metric Tons, which is not only pertaining to the sugar crop of the season 2011-12. He urged that in fact the said agreements, through novation or even otherwise, engvisaged the sugar deliveries emanating from the sugar crop 2011-12, 2012-13, 2013-14, and the upcoming seasons. He submitted that this Court has rightly passed order, which includes the current and the crop from the upcoming seasons. It is submitted that the defendants, by way of transferring/disposing of the suit property, have violated the orders of this Court. He vehemently argued that the said agreements were novated to the extent of the delivery schedule which includes the sugar crop of 2013-14 and the upcoming seasons, and such is evidenced by the fact that the defendants provided fresh cheques twice to replace the earlier ones thereby depicting that delivery will be made in the upcoming seasons for which the said cheques shall be considered as surety. He denied that the deliveries are made without delivery orders and/or without further information including, but not limited to, truck information and transporter's details.
He lastly submitted that this Court may review its order dated 9-1-2014, and may recall the phrase 'the restraining order does not apply on the sugar crop for the year 2013-14' from the said order. In support of his submissions, he placed reliance on the cases of PAKISTAN STATE OIL COMPANY LIMITED v. FEDERATION OF PAKISTAN AND 4 OTHERS (2010 CLC Karachi 1843), SYED WAQAR HUSSAIN AND ANOTHER v. MESSRS NATIONAL REFINERY LTD. (1993 CLC Karachi 2497), AGHA SAIFUDDIN KHAN v.
PAK SUZUKI MOTORS COMPANY LIMITED AND ANOTHER (1997 CLC 302) and RAEES GHULAM SARWAR v.
MANSOOR SADIQ ZA1DI AND 4 OTHERS (PLD 2008 Karachi 458).
12. I have given due consideration to the arguments advanced by the learned counsel for the parties, minutely examined the material available on record and the case-law cited at the bar.
13. It is settled law that party seeking an interim injunction must show that a prima facie case exists in his favour; the Court be satisfied that if injunction is not issued, irreparable damage or injury would be caused to such party; and, the balance of convenience is in favour of the grant of injunction.
14. The controversy involved in the instant suit is that the plaintiffs claimed that the commodity i.e, white refined sugar crop season 2011-12 were not delivered by the defendants as per the delivery orders and the agreements, which are subject matter of the instant suit were rescheduled.
Whereas the defendants instance is that; there is no remaining obligation for the supply of said sugar on the defendants to the plaintiffs and there was no rescheduling of the said agreements, as plaintiffs have not produced any document which shows that the agreements were ever rescheduled or the validity of the same extended, therefore performance of the same cannot be sought. Indeed, the defendants have rightly stated that plaintiffs have not annexed/produced any documents which shows that the agreement, which are subject matter of the instant suit, were ever rescheduled except cheques, which were given by the defendants in the year 2012 and 2013 as surety. Admittedly, there is no dispute in respect of execution of agreements and that the plaintiffs have paid the entire sale consideration for supply of white refined sugar mentioned in the said agreements. The defendants with regard to his plea that they had delivered the agreed sugar have only annexed office copy of delivery orders with their Suit No,1076 of 2013. This Court appointed the Nazir to carry out inspection on different occasions. The Nazir Reports dated 8-10-2013 and 16-12- 2013, confirm the fact that the defendants are creating third party interests, in the sugar being the subject matter of the instant suit, by selling it to various buyers in glaring violation of this Court's order. It is evident from the bare perusal of the Nazir Report dated 16-12-2013, that the subject sugar is being sold and transported out of the. Defendant No, l's mill to the detriment of the plaintiffs. The Deputy Nazir in para-6 of his report dated 16-12-2013 has recorded that "On enquiry of the total quantity delivered to the Customer from Factory the officials of the defendant declined to answer properly. Even though the sugar was delivered on the basis of original delivery orders and trucks coming in for loading were issued gate pass along with CNIC of driver and destination of where the sugar is being taken." Even the contentions of the defendants that they had delivered the sugar as per agreements is assumed to be correct then defendants have certainly in possession of original delivery orders, gate passes and the trucks/vehicles on which the said sugar was transported, but all these important documents are not available on record. It is important to note that when defendants had delivered the commodity according to contract why they issued cheques to the plaintiffs in the year 2013 and if the same were belonging to agreements for the season 2011-12 the original of the same should be with the defendants and not with the plaintiffs. All the original delivery orders are also in possession of the plaintiffs and the defendants without taking the original delivery orders transported the sugar to the plaintiffs. All these factual controversy involved in the matter requires deeper appreciation and cannot be decided at this stage without record of evidence of the parties.
15. As regards the other contention of the learned counsel for the defendants that plaintiffs apart from relief of specific performance of the agreements have also claimed damages to the tune of Rs,1,000,000,000. Since damages have been calculated specific performance of the agreements would not be granted. Likewise, when a specified sum of damages has been claimed, one of the necessary ingredients for grant of interim injunction vis-a-vis irreparable loss likely to be suffered by the plaintiff is missing, the injunction could not be granted. I do not agree with the contention of defendants' counsel, that since the plaintiffs have claimed damages, no relief by way of temporary injunction could be granted. Under Rule 2 of Order XXXIX of C.P.C., the plaintiffs can apply to the Court for a temporary injunction, to restrain the defendants from committing breach of contract whether compensation is claimed in the suit or not. The damages claimed by the plaintiffs are in addition to the relief of specific performance and is not claimed as an alternative relief. The loss or injury which the plaintiffs would suffer in case the defendants commit breach of agreement, in my view, cannot be calculated and the proper course would be to restrain the defendants from committing breach of contract pending decision of suit. The balance of convenience in the instant case in such circumstances also lies in favour of plaintiffs. Moreover, under Order II, Rule 2, C.P.C. a plaintiff should ask for all possible remedies within one civil suit, as the same is barred from filing an independent case for seeking a different remedy for the same cause of action. As such, seeking damages as an alternative prayer cannot bar the plaintiffs from seeking specific performance.
' In view of what has been discussed above, review application bearing C.M.A. No,423 of 2014 is allowed by recalling the order dated 9-1-2014 and defendants are directed not to dispose of/sell sugar to the extent of plaintiffs claim i.e, 21542 metric tons and/or create third party interest as ordered earlier on 6-1-2014 till disposal of the suit and dismissed the defendants' application bearing No,199 of 2014.
' The Applications C.M.As. Nos.10015 of 2013, 199 of 2014 and 423 of 2014 stand disposed of.