ZAFAR AHMED RAJPUT , J. By this common, older , I intend to dispose of C.M.As.No.1 1367 of 2018 and 12969 of 2018. The first mentioned C.M.A. has been filed by the plaintif f under Order XXXVI II, rule 5 read with Order XXXIX, rules 1 and 2, C.P.C., seeking attachment of movable and immovable properties of the defendant as per the details mentioned in the application and to restrict it from alienating the properties in order to avoid execution of the decree to be passed by this Court in the instant case. While second mentioned C.M.A. has been preferred by the defendant under Order XXXIX, rule 4 read with Sections 94 and 151, C.P.C., for setting aside ad-interim order , dated 16.8.2018, whereby the Bank Account of defendant bearing No.0000-8601-0 057-8185, Askari Bank Limited, Gulshan-e-Iqbal Branch, situated at SB-08, Block 13-8, KDA Scheme, Karachi has been attached by this Court.
2. Briefly stated facts of the case are that the plaintif f has filed this suit for the recovery of Rs.1,09,103,822/- against the defendant before this Court, alleging therein that the defendant, in the year 2016, having obtained a contract from Pakistan Petroleum Ltd. for the construction/installation of 16" NPS undergro und loop line and above ground section loop line at Pakistan Petroleum Ltd. Kandh Kot Gas Field, requested the plaintif f to work with them as sub- contractor for various civil works; hence , the plaintif f and the defendant executed a contract on 31.03.2016.
Besides, on 03.06.2016, they also entered into another contact to carry out some civil works in another contract of the defendant awarded to it by the Sui Southern Gas Company for the construction of 42" Dia 135 kilometer RLNG- II Pipeline from Pak-Land Karachi to HQ-3-Hyderabad. It is case of the plaintif f that he raised running bills and received a total sum of Rs.2,60,22,000/- and on completion of the assigned works he submitted his final bills which after proper scrutiny were approved by the defendant's engineer on 10.07.2017 and 22.06.2017 for an amount of Rs.4,38,43,822/-, which is still outstanding against the defendant. It is also the case of the plaintif f that he has suffered colossal loss of revenue of Rs.15,260,000/- on account of retention of goods, salaries, rental and has also suffered physical and mental torture on account of deliberate acts and omission of the defendant, hence, he has maintained this suit.
3. On 16.08.2018, this Court passed an ad-interim order whereby the afore-mentioned bank account of the defendant was attached to the extent of Rs.7 million.
4. Learned counsel for the plaintif f while arguing C.M.A. No.1 1367/2018 has contended that the defendant while acknowledging its liability issued a cheque of Rs.7 million as part payment to plaintiff on 15.01.2018 which was returned to him by the bank with the memo which reads "stopped by drawer". He has further contended that/the money o1/ decree is likely to be issued in the instant case in favour of plaintif f, if so, the very conduct of the defendant establishes that in order to avoid execution of decree, it may create third party interest in its property; therefore, C.M.A. under reference has been filed by the plaintif f.
5. On the other hand, learned counsel for defendant has maintained that the C.M.A. under reference is not maintainable under the law as the same is beyond the scope of the suit as no injunctive relief has been sought by the plaintif f in the suit as consequential relief; moreover , no case for attachment before judgment has been made out by the plaintif f. He has further maintained that there is no privity of contract between the plaintif f and the defendant as the defendant in relation to PPL project sub-contracted certain components of the work to a third person, namely , Akram for the purpose of completion of the project and from the year 2015 to the year 2018 the defendant paid him Rs.176,225,454/- for the work done by him, and it was said Akram who appointed the plaintif f as his subcontractor to carry out certain parts of his assigned works. He has furthe r maintained that the cheque of Rs.7 million was issued in favour of plaintif f as security at the request of said Mr. Akram subject to final assessment of dues. He has also maintained that since the plaintif f was sub-contractor of said Akram, the defendant is not liable to pay any amount as claimed by the plaintif f. He has also maintained that as a result of ad-interim order , dated ,16.08.2018, the business of the defendant has severely been crippled; thus, the C.M.A. under reference is liable to be dismissed by recalling the ad-interim order .
6. In rebuttal, learned counsel for the plaintiff has asserted that his C.M.A. may be treated as an application for the attachment of the properties of the defendant in terms of Order XXXVIII, rule 5, C.P .C., only .
7. Heard the learned counsel for the parties and perused the material available on record.
8. For the sake of convenience, the provisions of Order XXXVIII, rule 5. C.P .C. is reproduced herein below: "5. Where 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 limit 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 sufficient to satisfy the decree, or to appear and show cause why 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.
9. From bare reading of the above provisions, it appears that in order to attract the same, it is obligatory on a plaintif f to satisfy the Court by an affidav it or otherwise that the defendant with intent to obstruct or to delay the execution of a decree that may be passed against him either is about to dispose of the whole property or 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. It has been held by this Court in the case of Associated Drillers Ltd., Karachi v. Messers Dirk Verstoop B. V. Karachi (PLD 1979 Karachi 734) that unless the plaintif f proves an intent ion on the part of the defendant to obstruct or delay the execution of any decree that may be passed against it/him, the provisions of rule 5 of Order XXXVIII, C.P .C. are not attracted to.
10. In other words, the scope of rule 5 (ibid) is limited and a plaintif f in the hope that he will get money decree in his favour cannot resort to invoke provision s of rule 5 unless he places on record the material for the Court's satisfaction for making such order that the defendant is about to dispose of his property with a view to frustrate or delay execution of decree that may be passed against him. In the instant case, no detail of actions allegedly taken by the defendant to defeat the decree, if any, likely to be passed in his favour has been given in the supporting affidavit of the application and the only reason assignee in the affidavit is that "the defendant has failed to pay outstanding due amount of the plaintif f for the services, as detailed in the plaint, that he has already rendered, not even that the damages being incurred for keeping, rental heavy machinery in a rental yard and watchmen to look after the said machinery ." Mere failure of the defendant to pay the claimed amount of plaintif f could not be a ground for passing an order under , the provisions of rule 5 of Order XXXVIII, C.P.C., as it is not the required threshold of the said provisions.
11. Upshot of the above discussion is that CMA No.11367 of 2018 is dismissed being devoid of merit, with no order as to costs, and in consequence thereof, ad-interim order passed on 16.08.2018 stands recalled.
12. In view of my order on C.M.A. No.11367 of 2018, the C.M.C. No. 12969 of 2018 stands dismissed on being infructuous.