' ZAFFAR HUSSAIN MIRZA, J.-These three petitions, the details whereof are mentioned in the cause title hereinabove, are directed against and arise out of a common judgment dated 26-10-1983 passed by a Division Bench of the Sind High Court in High Court Appeal No, 62 of 1983, Muslim Commercial Bank Limited v. Interice Limited and 10 others. As these petitions call in question a common judgment and common questions of law have been raised in support thereof, we propose to dispose of these three petitions by this order.
2. The facts briefly are that the Muslim Commercial Bank Limited (hereinafter to be referred to as the 'plaintiff bank') filed a suit for the recovery of U. S. $ 12,950,811 equivalent to Pakistan Rs, 16,69,20,000 against Interice Limited and its directors and others which suit is still pending on the original side of the Sind High Court (Suit No, 446 of 1983). The claim for recovery of the money by the plaintiff bank is against Interice Limited and its directors. The case of the plaintiff bank in substance. Is that banking facilities were given to Interice Limited which were availed by it by way of Letters of Credit opened by the said company which were honoured by the plaintiff bank, but according to the allegations of the plaintiff bank the said company fraudulently deprived the plaintiff bank of the Bills of Lading with the assistance of another company called Centredore International. Apart from that the plaintiff bank also claimed that moneys were advanced to lnterice Limited by means of over draft and other facilities, which were, however, not repaid, but on the contrary Interice Limited had gone into voluntary liquidation. It was further stated in the plaint that the cargo on board the ship M. V. Sonja consisting of about 25,000 metric tons of degummed soyabean oil, which was impleaded as a defendant in the suit and was chartered by them, was in Karachi waters and the plaintiff bank had received information that it was to sail away without discharging the cargo of oil in order to deprive the plaintiff bank from recovering their dues from the said cargo. The plaintiff bank made an application dated 14-7-1983 under Order XL, rule 1 and section 151 of the Code of Civil Procedure and Order XXIX, rule 2 of the Code of Civil Procedure, praying for appointment of a Receiver "to take possession of 25,000 metric tons of such quantity of soyabean oil which is or may be found on board in. v. Sonja which is at present at outer anchorage of Karachi waters". It was further prayed in the application that until delivery of the cargo to the Receiver, in. v. Sonja be detained and restrained through Coast Guards and K. P. T. From leaving Karachi waters. On this application on the same day, learned Single Judge passed ad interm orders detaining the ship and restraining it as prayed and appointed plaintiff-bank as the Receiver under the supervision of the Nazir of the Court, to take possession of the cargo on board. In compliance with this order the ship was kept under watch so that it does not surreptitiously escape and move out of the territorial waters of Pakistan with the result that the ship remained at the outer anchorage. On 20-7-1983 the agents of the ship filed a counter-affidavit in reply to the avertments made in the supporting-affidavit of the application filed by the plaintiff-bank, in which it was denied that the cargo on board the ship was at the disposal of the charterers of the vessel i. e.
Interice Limited. It was asserted that the said defendants had no concern with the goods on board and the plaintiff bank had no right to detain the same or take possession thereof. Also it was disclosed that the goods belonged to 51 specified holders in due course of the Bills of Lading and to some unknown owners of the balance of the cargo consisting of 12,800 metrtic tons. The position that emerged after the filing of this affidavit was that total cargo on board the ship consisted of 24,700 metric tons out of which approximately 11,900 metric tons belonged to 51 consingees whose names were mentioned in the list annexed with the counter-affidavit and the balance consisting of 12,800 metric tons belonged to unknown consignees. An affidavit was also filed on behalf of the 51 consignees claiming their respective consignments.
3. On 20-7-1983 three separate applications were submitted on behalf of the present petitioners for being joined as defendants in the suit under Order I, Rule 10(2) of the Code of Civil Procedure in which the petitioners disclosed the details of their claim and their interest in the cargo on board the ship. The case of the petitioners as disclosed in their supporting affidavits in substance was that petitioners Tradax Ocean Transportation, Cargill in and Simab Trading had sold 1,000, 1,000 and 4,800 tons, respectively to Interice Limited in normal course of business and had delivered the oil under F.
0. B.' Contracts to the vessel M. V. Sonja chartered to Interice. In token of the delivery of the goods mate receipts were issued by the master of the vessel to each of the petitioners but since the payment of the frieght was the responsibility of Interice Limited no Bill of Lading has been issued to them. It is their case that since price for the goods was not paid to them, they in exercise of their rights as unpaid sellers, served the notice of stoppage in transit on the vessel. On this basis they objected to the disposal of the goods as no Bills of Lading had been issued and claimed ownership and restoration of the goods in pursuance of their right of stoppage in transit. It appears that there was one more claimant for a Small quantity of the soyabean oil from the cargo on board the ship.
4. The application of/the plaintiff-bank for interim relief was finally disposed of by the learned Judge in chambers by his order dated 28-7-1983. Before the learned Single Judge it was agreed by the parties that as to the claims of the intervenors the plaintiff-bank be satisfied that.The cargo or part thereof claimed by them does not belong to Interice Limited or its directors and that the ship would discharge the entire cargo in shore tankers at Karachi. As regards the three petitioners herein, the learned Judge observed "Mr. Kazmi who is appearing for the three intervenors named above, has notified his clients consent to the discharge of-cargo in Karachi".
5. In view of this consent statement on behalf of all the parties the learned Judge recalled the ad interm order appointing the plaintiff-bank as Receiver and directed that the cargo shall be "released from attachment and control of the Receiver". He further directed that the cargo of oil on board the vessel shall be discharged into shore tankers, where it would lie and be protected and preserved by the agents of the ship until further orders. As regards the 51 consignees the learned Judge appointed a Commissioner to scrutinize their respective claims and report his findings to the Court within 15 days. So far as the claims to the cargo set up in other applications, which was an obvious reference to the claims of the present petitioners and claimants other than the 51 listed consigness, it was directed that their applications "to come up in due course after the 'cargo is discharged by the ship",
6. It has been stated by the petitioners that contrary to the expectations of the parties the process of scrutiny by the Commissioner did not conclude within 15 days but dragged on for several months. Accordingly a fresh move was made by the said consignees for release of the cargo on furnishing bank guarantee: Thereupon, the learned Judge passed a general order on 27-94983 holding that the said consignees were entitled to receive their respective consignments on furnishing bank guarantees. It is said that thereafter specific orders were passed in the case of each such consignee.
7. Pending the inquiry and report by the Commissioner appointed by the Court to surutinize the claim of the 51 consignees, and application under Order XXXIX, Rule 6 read with section 151 of the Code of Civil Procedure had been filed by the plaintiff-bank before the learned Single Judge for the goods to be sold, on the ground that the same were subject to speedy and natural decay.
However, no orders were passed on this application until the passing of the order dated 28-7-1983 by the learned Judge in Chambers. The plaintiff-bank being aggrieved by the said order preferred an appeal which came up before a Division Bench of the High Court and was disposed of by the impugned order dated 26-10-1983, whereby it was inter alia ordered that the quantity of Soyabean oil claimed by the 51 intervenors shall be given to them on furnishing bank guarantee in the sum of Rs, 6,500 per ton, which will, however, be released and discharged if the intervenors were able to establish their claims to the ownership Of the respective quantities claimed by them. As regards the balance of the cargo consisting of 12,800 metric tons, it was ordered that the same shall be sold in bulk by the Nazir of the Court after inviting tenders or in smaller quantities subject to further orders of the Court. The sale-proceeds were directed to be invested in Khas Deposit Certificates. As regards the disposal of the amount of sale-proceeds it was directed as under : "The Nazir shall keep the amount of sale of these 12,800 metric tons (approximately) in Khas Deposit Certificate. This process will protect the interest, not only of the appellant, or, respondents 1 to 6, but also the clients of Mr. M. H. Kazmi, who claimed to be unpaid sellers, the clients of Mr. Liaquat Merchant. Who claimed to be the purchaser, and the clients of Mr. Muhammad Naim, who claimed to be owner of the vessel, claiming lien over the goods. It has not been the case of Mr. M. H.
Kazmi, or, Mr. Liaquat Merchant, or, Mr. Muhammad Naim that the client of any one of them is a person, who can utilise Soyabean oil for his own purpose. They would also offer it for sale, and, therefore, their interests are fully protected, and no prejudice will be caused."
8. It may be stated at this stage that the petitioners are aggrieved by the part of the order of the Division Bench whereby the goods to the extent of 6,800 metric tons claimed by the petitioners have been ordered to be sold pending decision of the claims of the petitioners in the proceedings of the suit. The learned Judges of the. High Court in ordering the sale of the soyabean oil on board tbe vessel which was transferred to shore tankers by the consent of the parties, were persuaded to pass the impugned order on the ground that it was a perishable commodity and that it would be in the best interest of the contesting parties themselves to dispose it off by sale since the price of the goods in the open market was subject to fluctuation in course of time. They observed : "Grave fears have been expressed by all the parties that, by not allowing disposal and use of soyabean oil, which, by its nature, is perishable commodity, the entire commodity will be destroyed and rendered useless. This surely is not a wise course to adopt. We are also impressed by one more reason, which has been highlighted by the Advocates on either side. We asked a question regarding the abnormal rise in price during the last two, or, three months, and most of the Advocates replied that, because a huge consignment of nearly 25,000 metric tons of soyabean oil had been held, a shortage had accrued, resulting in rise in the price of soyabean oil. We are also conscious of the interest of the populace, because this price hike will resultantly be passed on to the consumers by purchase of Ghee, or, oil out of soyabean oil. In these circumstances, we are of the view that any delay in delivering or, disposal of the oil will be a national loss, and would destroy the very subject-matter of the suit, creating further complications, and possibly exposing the parties to a total loss."
9. Before coming to the contentions advanced in support of these petitions one more fact may be stated. The impugned order in these petitions was challenged before this Court in Civil Appeal No, K-286 of 1983 in which the present petitioners were also impleaded as parties. This appeal was filed by Partrederiet Fore m. v. Sonja & Company and another in regard to the freight charges and was disposed of by order by this Court, dated 15-11-1983, whereby the order passed by the Division Bench (impugned in these petitions) was modified by providing that the appellants therein "shall be entitled to be paid forthwith and in priority to all other claims, such amount as may be adjudicated to be due to them by the learned trial Judge by the order to be made in their application under section 151 of the Code of Civil Procedure (C. M. A. No, 3936 of 1983) and after adjudication of objections, if any, that may be filed to such application". Mr. Sharifuddin Pirzada, learned counsel appearing for the plaintiff-bank, urged a preliminary objection to the maintainability of these petitions, on the ground that the impugned order having been merged in the aforesaid order of this Court in Civil Appeal No, 286 of 1983, the petitioners have no right to file these petitions and if they were aggrieved they ought to have filed review petitions against the order passed in appeal, Mr. A. K. Brohi, in reply to the preliminary objection argued that the earlier order of this Court was passed with the consent of the parties interested in the controversy in that appeal and the petitioners were not a party to the consent order thus passed, with the result that their independent constitutional right to file the present petitions against another part of the order by which they are aggrieved remains intact and cannot be defeated. He placed on the record a statement in writing submitted in the Court in that appeal whereby the petitioners raised objection to the sale of the cargo to the extent of their claim and prayed for restoration thereof in specie. He also invited our attention to the observations of the learned Judges of this Court in the order dated 15-11-1983 regarding the consent of the learned counsel for the plaintiff-bank only and the fact that the order was passed on the basis of this consent statement alone. The relevant observation reads as under : "We, therefore, convert this petition into appeal, accept it and amend paragraph 6 of the impugned order in the light of the aforementioned agreement reached between the concerned parties."
10. After hearing the learned counsel at some length we are, however, not inclined to dispose of these petitions on the preliminary objection and propose to consider the case on the merits.
11. In support of the petitions Mr. A. K. Brohi raised the following main contentions :- (1)That the learned Division Bench had no jurisdiction to pass an order directly affecting the rights of the petitioners although the petitioners were not a party to the proceedings pending before it.
(2)That the learned Division Bench was not justified in deciding the case of the petitioners in view of the fact that the matter is still pending before the learned Single Judge and no final orders were passed by him as to the claims of the petitioners.
(3)That the order passed by the learned Division Bench so far as it relates to the claim of the petitioners was passed in absence of any material whatsoever on the record."
11-A. Mr. Sharifuddin Pirzada supported the order of the Division Bench and submitted that the claim of the petitioners as to the right of stoppage in transit and lien of unpaid sellers, presented no insurmountable legal obstacle in the way of the trial Court to order the sale of the goods on the grounds that found favour with the learned Judges of the Division Bench. He further argued that the petitioners having consented to the discharge of the cargo on board the vessel to the shore tankers had waived their right to stoppage in transit and lien in the goods.
12. Now it is quite clear to us that the petitioners are aggrieved by the order of the learned Division Bench for sale of the goods without being afforded an opportunity to produce evidence to establish their claim to receive the goods in specie in pursuance of their alleged right of stoppage in transit as unpaid sellers. The undeniable fact, however, remains that the goods were discharged from the vessel by express consent on their behalf as recorded in the order of the learned Single Judge. They cannot, therefore, have a legitmate grievance that the goods were not placed at their disposal on board the vessel. Further, it is clear from the order of the learned Single Judge that the claim of the petitioners as unpaid sellers was not disposed of and was yet to be adjudicated, after the sale of 12,800 metric tons of soyabean oil that remained in the custody of the Court after excluding the quantity claimed by 51 consignees. The contention of Mr. A. K. Brohi that the can of the petitioners has been decided without giving them an opportunity to establish their claim is, therefore, without substance. Reading of the orders of the learned Single Judge and the Division Bench impugned in these petitions, leaves no manner of doubt that the claim of the petitioners is to be adjudicated by the learned Single Judge and has not yet been disposed of. Mr. Sharifuddin Pirzada very fairly conceded to this position. The only question for decision in these petitions, therefore, is whether the High Court was justified in ordering the sale of the goods pending the adjudication of the claim of the petitioners.
13. Coming to the said question for consideration it may at once be stated that it was not disputed by the learned counsel for the petitioners that soyabean oil is a perishable commodity subject to decay and deterioration in the course of time. Indeed this fact is indisputable. Mr. Sharifuddin Pirzada referred us to the supporting affidavit filed on behalf of the petitioner by one Mr. M. Rafiq Shaikh in which it was admitted that the delay in disposal of the goods was likely to result in their deterioration: The Court had ample powers under Order XXXIX, rule 6 of the Code of Civil Procedure, in these circumstances to order the sale of the goods and we agree with Mr. Sharifuddin Pirzada that the Court has not exceeded in its jurisdiction to adopt this course. No argument was advanced before us to urge that this power was exercised arbitrarily or capriciously. Apparently the Court could possibly deliver the goods to the petitioners only when they proved their claim to the title in the goods which were taken into the custody on the Court under the interim order, since the directors of the Interice Limited had preferred a rival claim to title in the same goods. Mr. A. K. Brohi placed strong reliance on the mate receipts produced to urge that the goods belonged to the petitioners and that their right as unpaid sellers was indefeasible. On the other hand it was urged by Mr. Sharifuddin Pirzada that the mate receipts do not prove conclusively that the goods were delivered on board the vessel by the petitioners. He further submitted that the petitioners' reliance on section 46 of the Sale of Goods Act to press their claim to the stoppage of goods in transit, prima facie, shows that the petitioners had already parted with the possession of the goods.
However, it is not appropriate for us to express any opinion on the merits of the claim of the petitioners which is still to be adjudicated upon by the trial Court.
14. As regards the grievance of the petitioners that the. Impugned order was passed in an appeal in which they were not impleaded as parties, suffice it to say that although they were not formally made parties to the appeal before the Division Bench, their counsel was given an opportunity to argue and was in fact heard by the learned Judges as observed by them in the impugned order.
The interests of the present petitioners have been fully safeguarded in the impugned order until the decision of their claim.
15. For all the foregoing reasons we find no merit in these petitions and would accordingly dismiss the same. We would, however, express a hope that the learned Single Judge will take up the case of the petitioners at an early date and dispose of their claim as expeditiously as possible.