By a short order dated 26.1-1982the 'plaintiff's applications were dismissed and the interim order passed on 21-1-1982 was discharged. The reasons are as follows :- The plaintiff has filed this suit for recovery of damages at Rs. .39,77,800 and for permanent injunction restraining the defendant No. 1 from sailing m/t. IRIS from Karachi Port.
2. Briefly the facts as alleged by the plaintiffs are that the defendants No. I are the owners of m/t.
IRIS. The plaintiffs through their brokers Inter-marine Shipping Limited, London entered into negotiations for purchase of the said vessel. The entire negotiation between the parties is alleged to be through the plaintiffs' broker and defendant No. 4 who acted as brokers for defendant No. 1. It is alleged that the defendant No. 1 through defendant No. 3 entered into a verbal agreement on 27- 9-1981 with Fulton, said to be the representative of the plaintiffs' broker. According to the verbal agreement the sale price was fixed at U. S. $ 7,25,460 @ U. S. $ 113 per light weight ton. It is alleged that it was agreed that the vessel shall be delivered by defendant No. 1 to plaintiff at outer anchorage, Karachi by 20th December, 1981 and the terms and conditions for sale of vessel PISTIS shall govern the transaction. It is alleged that the plaintiffs' approval for purchase of vessel was transmitted to the plaintiffs' broker on 28-9-1981 which was confirmed the same day on behalf of defendant No. 1 but the respondent No. 2 wished to revise the agreed terms which included that the sale shall be kept absolutely private and confidential and the sale is subject to owner's satisfactory release of present charter which was expected to be listed by owners on 5-10-1981. The plaintiff, however, did not agree for incorporation of this clause in the agreement but it is alleged that the defendant No. 2 sent a typed copy of memorandum of agreement which did not contain the amended conditions as suggested earlier. As a duly signed M. O. A. Was required for purposes of obtaining import licence and completing necessary formalities for import of the vessel and remittances, the plaintiff asked the defendant No. 2 to immediately send a duly signed agreement otherwise necessary action would be taken against them. The defendant No. 2 assured to do it.
However, by a telex dated 25th November, 1981 the defendant No. 2 resiled from the contract and cancelled it. Pith and substance of the telex is that the defen--dant No. I had indicated their willingness to conclude the sale at E 113 per L T LDT subject to details provided the discussion was maintained in strictest confidential privacy with a view to obtain release from vessel's tithe charterers. It was further notified that since the plaintiff did not observe the confidentiality of the discussion and though no sale was concluded, the vessel was reported to the charterers as having been sold whereby the defendant No. 2 were unable to obtain the release from charterer and, therefore, they expressed their inability to conclude the sale. When the vessel called at Karachi the plaintiff filed the present suit along with two applications for attachment before judgment and for injunction restraining the defendant from taking away the vessel from the jurisdiction of the Court.
Notices of these applications were issued but after service as the defendant did not appear on 21- 1-1981 an interim order was passed restraining the defendant No. 2 from taking away the vessel from the jurisdiction of the Court. In consequence thereof the defendant No. 1 appeared and have filed counter-affidavit and contested this application.
3. The defendant No. 1 entered appearance under protest challenging the jurisdiction of this Court and denied that any breach of contract has been committed by defendant No. 1 or defendant No.
2. 1n fact they have taken the plea that there was no agreement or a concluded contract between the plaintiff and the defendants Nos. 1 and 2 in any manner and they are not liable for any damages. In this regard pointed reference has been made to para. 10 of the plaint. The defendants have further stated that the vessel arrived at outer anchorage on or about 20th January, 1982 with a cargo of tallow and the vessel remained at the outer anchorage and was due to enter the port on 25th January to discharge the cargo. After discharge of the cargo the vessel was due to load the cargo of molasses at the port of Karachi. The vessel is under a time charter, with The East Wing Trading Company of Hong Kong Limited and she is under the entire control of the time charterers and it is under the instructions of the charterers that the vessel is at Karachi and after loading the cargo will leave the port in the normal course of business. On these facts it has been denied that the defendants are taking away the vessel from the jurisdiction of the Court. It has further been stated that the daily hire of the vessel on the basis monthly charter hire of g 242000 comes to g 7960 and the owners would suffer an additional loss of g 1000 per day to meet the daily expenses of the vessel and if any attach--ment is made or the defendant is restrained from leaving the Karachi port the defendants No. 1 will be subjected to claim for damages for breach of commercial commitment.
4. As the plaintiffs were pressing the applications on the basis of the urgency shown by them the matter was being taken up day and on 24th January when the defendant No. 1 appeared the application was fixed for hearing on 26th January, 1982. The defendants filed their counter affidavit in Court on 25th and supplied the copy to be learned counsel for the plaintiff on the same day.
5. Mr. Rashid Akhund the learned counsel for the plaintiff wanted time to file rejoinder but it was not allowed as the vessel was under arrest and if at all the plaintiffs wanted to file rejoinder they could have done so and filed it on the date of hearing as a copy of the counter-affidavit had already been supplied to them. However, Mr. Akhund wanted to place on record a telex dated 23-1-1982 which by consent of parties has been taken on the record. ,.
6. The first application is under Order XXXVIII, rule 5, C. P. C. For attachment before. Judgment of m/t. IRIS Mr. Rashid Akbund the learned counsel for the plaintiff contended that if the vessel sails away from the jurisdiction of the Court no remedy will be available to the plaintiff as the vessel is the only property of the defendants No. 1 within the jurisdiction of the court from-which the decretal amount can be realised. In a nutshell the ground for pressing this application is that if the vessel is not attached the plaintiff would not be able to realise the decretal amount, if any, and the suit will become infructuous as he termed it the decree passed will be merely a paper decree without any substance. The contention raised by the learned counsel does not seem to be correct as under Order XXXVIII, rule 5, C. P. C. a party can obtain an order for attachment before judgment if he is able to satisfy the Court on the basis of the affidavits or otherwise. That with a view to delay or defeat the plaintiff's claim the defendants are trying to remove their property from the jurisdiction of the court or are trying to sell or dispose of their property with that intention. Therefore, the main ingredient of Order XXXVIII, rule 5,.C. P. C. Is that the defendant's acts of removal or disposing of the property should be tainted with the intention to delay or defeat the decree that may be passed. But for this pre-condition no defendant would be able to carry on his normal business and transaction which he may be doing bona fide and in good faith. If the plaintiff's conten--tion is accepted then it is likely to hamper the normal course of business, and bona fide commercial activities. The object of Order .The object XXXVIII, rule 5 , C. P. C. Is to provide a safeguard to the plaintiff only if the defendant with intention to delay or defeat the decree does any offending act mentioned) therein.
The object of this provision is not to paralyse the normal and bona fide transactions, business and commercial activities. If a defendant does, does not own any property except the property which is sought to bet attached, this can hardly be a ground for an order under Order XXXVIII, rule 5,, C. P. C.
It is pertinent to note that there are certain persons who arc engaged, in such business and commercial activities whereby in their normal course of business they send the goods out of the jurisdiction of the Court. This would particularly be illustrated in the case of vessels which in the normal course of their business have to bring cargo from one place to another and after discharging or loading the cargo they have to sail away. In such cases also unless the plaintiff proves and establishes that such movement sailing or removal is with the intention to delay or defeat the decree that may passed it would not be possible to pass an order of attachment.
However once the, plaintiff establishes such intention by any overt act of the defendant or by unavoidable and wrong inference to be drawn from the circumstances and facts of the case, then, unless the defendant disproves it the court would be justified to issue an order for attachment before judgment. In this regard reference is made to PLD 1977 Kar. 747 and PLD 1958 Dacca 22.
Applying these principles to the facts of the present case I find that neither in the plaint nor in the application and affidavit filed in support thereof the plaintiff has made even the faintest allegation that the defendants are trying to remove the vessel from the jurisdiction of the Court with a view to delay or defeat its claim. In this regard it may be clarified that mere allegations and presumptions will not establish that the defendant is intending to dispose of or remove the property from the jurisdiction of the court with the intention to delay or defeat the plaintiffs' claim. There should be specific allegation that if some overt acts on the part of the defendants are available the same should also be specified. Merely on the basis of presumption and apprehension of the plaintiff it cannot be said that the defendant is indulging into such offending acts which may justify attachment before judgment.
7. Mr. Rashid Akhund the learned counsel for the plaintiff contended that if opportunity would have been given to file a rejoinder he would have stated these facts in it. ..The plaintiff bad sufficient time in the circumstances of the case to prepare rejoinder and file it in Court and none had prevented him to do so. However, z rejoinder is only permitted to be filed in reply to the averments made in the counteraffidavit. No fresh allegations or facts and documents can be introduced through a rejoinder because if that is allowed to be done then the other party would hardly have a chance to meet it. Therefore, the allegations which may have met the requirements ofOrder XXXVIII, rule 5, C.
P. C. Even if made in a rejoinder for the first time, the same would not have to be worthy of consideration and would not fill up the lacuna created in the application itself. The plaintiffs only wanted to file a telex to show that defendants are selling the vessel and are searching for purchasers. Even if this allegation is accepted to be correct it does not mean that they are doing so with the intention to delay or defeat the plaintiff's claim. The plaintiff's prayer for attachment before judgment,. Therefore, fails. In this regard it may also be mentioned that the learned counsel relied upon PLD 1962 SC 119 in which it was held that "the court had inherent jurisdiction to preserve the property of the judgment-debtor in order that it may be available for realization of the decretal amount". This particular case was in respect of proceedings where the suit bad already been decreed and therefore the observations of the honourable Supreme Court were made in view of these facts. The learned counsel for the plaintiff has relied on the following observation : "The jurisdiction of the court to attach the property of the. Defendant purely arises from the fact that the court has power to grant relief. The power to grant relief necessarily implies powers to take all such steps as are intended to ensure the grant of relief to the plaintiff Full relief is not granted to a plaintiff by a paper decree: It is only when the decree is satisfied that he gets full relief and the court has power to pass all such orders as may be required for the satisfaction of the decree unless any such order be expressly or by necessary implication prohibited."
A reading of this passage makes it clear that the courts have power to pass such orders. Unless expressly or by necessary implication they are pro--hibited. In order to consider whether the court has a power or by necessary implication is prohibited to pass an order one has to refer to- the - provisions of law under which power has to be exercised. In the present case, therefore, one has to revert back to Order XXXVIII, rule 5, C. P. C. Which place; certain limitations on the exercise of power for attachment before judgment and unless these conditions are satisfied no order of attachment before judgment can be passed. In the present case the plaintiffs have failed to ever allege the pre-conditions required for attachment before judgment and, there--fore, they are not entitled to this relief.
8. The learned counsel then pressed his application under Order XXXIX, rule 1 and 2, C. P. C. And mainly relied on Order XXXIX, rule 2 C. P. C. The learned counsel contended that the defendant has committed breach of contract and injunction should be granted for saving the plaintiff from the injury arising out of such breach. Under Order XXXIX, rule 2 IC. P. C. a defendant can be restrained from committing breach of contract but where an act complained of has been committed and completed no injunction can be issued, restraining him from committing such act. The provisions of Order XXXIX, rule 2, C. P. C. Have been held to be exhaustive leaving no scope for extending these provisions. The plaintiff has tried to establish that there is a valid and concluded contract which has been denied by the defendant. On the basis of the documents produced it seems that prima facie there was some arrangement and negotiations between the parties for sale of the ship.
However prima facie it is not established that there exists a concluded contract between the parties. It is well settled that where the contract itself is not a completed contract or where other adequate remedy is available temporary injunction under Order XXXIX, rule 2, C. P. C. Will not be granted. In the present case the plaintiff has claimed compensation for breach of contract which implies that monetary compensation will afford an adequate relief for non-performance of the contract. In these circumstances no injunction as prayed can be granted.
In the result both the applications are dismissed. 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.