' These are two applications filed by the plaintiff under Order XXXIX, rules 1 & 2, C.P.C. read with section 151, C.P.C. and under Order XXXVIII read with Order XXI rule 46 and section 15, C.P.C. respectively.
2. The facts of the case, briefly stated, are that the plaintiff is the sub-contractor under the defendants carrying engineering works of the defendants who are under a contract with M/s. Pakistan Steel, Karachi. The allegations are that a sum of Rs.2,31,490.57 remains due against the defendants and that the affairs of the defandants company have been taken over by new Management who has rift with the previous, Management and they may disappear after realising the assets of the defendants company. The plaintiff, therefore, filed an application under Order XXXIX rules 1 and 2 read with section 151, C.P.C. praying for restraining the defendants company by a temporary injunction from receiving, realising and disposing of their assets in general and of the dues payable to them by M/s. Pakistan Steel, Karachi and the balance amount lying with United Bank Ltd., Corporate Branch, Karachi under Account No.1016 and National Bank of Pakistan, Model Branch, Karachi under Account No.4560 in pirticular till the disposal of the suit. The plaintiff has also filed an application alongwith the plaint under Order XXXVIII read with Order XXI and rule 46, C.P.C. for attachment of the assets of the defendants in general and the dues of the defendants with the aforesaid Steel Mills and the Banks in particular.
3. I have heard the learned counsel for the parties. The learned counsel for the defendants has invited my attention to Annexure 'B' filed alongwith the plaint by the plaintiff wherein under the Head "Payments" sub-clause (a) it is agreed between the parties that the "payments will be made to the plaintiff within seven days after the receipt of respective cheques from Pakistan Steel to the extent of work covered by the cheques." Sub-cluase (b) further mentions that the retention money at the rate of 10% (refundable from Pakistan Steel) will be deducted from the plaintiff's running payments. It is contended that 13th and 14th bill of the plaintiff for the amounts of Rs.43,044 and Rs.52,632 respectively are still under verification and the payments have been received so far by the defendants from the Pakistan Steel. Thus, under sub- clause (a) as stated above the cause of action has not, at all, accrued to the plaintiff in respect of the said sums of money. It is further contended that a sum of Rs.56,814 has been retained by the defendants under the terms and conditions as stated in sub-clause (b) referred to above.
4. Now there remains a disputed sum of about Rs.70,000 for the works done by the plaintiff. It was originally agreed that the rate will be Rs.725 per ton whereas in the subsequent bills it has been raised by the plaintiff to Rs.950. The learned counsel for the plaintiff contends that the rate has been enhanced in the bills after the rates were revised by mutual agreement and in this respect he relies upon a letter dated 22.2.1983 filed alongwith the plaint as Annexure 'A' which has admittedly been signed by one Mr. Jaffery, the then Managing Director of the Company. The learned counsel for the defendants disputes the credibility and authenticity of this letter and contends that this letter was signed and handed over to the plaintiff by Mr. Jaffery after he had left the defendants company on 15th May, 1984. In any case, it is not disputed that the defendants company received Bill No. 7 onwards at the enhanced rate of Rs. 950 and no objection seems to have been raised on the enhanced rate. In fact, the defendants have been making the payments for the Bills Nos. 7 to 12. However, this is a point to be agitated and established at the time of trial of the suit. What is to be seen at *is stage is whether there are sufficient grounds for passing orders under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. and Order XXXVIII read with Order XXI and rule 46, C.P.C. as prayed.
5. It is established law that there are a number of requirements to be fulfilled before passing an order under Order XXXIX, rules 1 and 2, C.P.0 and Order XXXVIII, rule 5, C.P.C., namely:-(i) the plaintiff has to establish a prima facie case in his favour, (ii) he will suffer an irreparable loss if, pending hearing of suit, no injunction is granted to him, (iii) balance pf convenience is in his favour and (iv) the defendants have removed or are about to remove their property from the jurisdiction of the Court to obstruct or delay the execution of decree which may be passed in favour of the plaintiff.
6. As far as prima facie case is concerned, the plaintiff has been able to establish a prima facie good case in his favour inasmuch as they have submitted their running Bills Nos. 13 and 14 claim whereof is not denied except for a technical objection that the bills are under verification and have not been cleared by the Pakistan Steel. So far as the retention of Rs.
56,814 is concerned, the plaintiff has a right to claim the said amount because it pertains to the Bills Nos.1 to 12 already cleared and paid by the Pakistan Steel. There, however, remains a sum of Rs.
70,000 which, according to the defendants, is under a genuine dispute but I am afraid, under the circumstances, that Bills Nos. 7 to 12 have already been entertained by the plaintiff and in fact paid, it can hardly be said that the plaintiff has no prima facie case in respect of the said amount too. I, therefore, hold that the plaintiff has a good prima fade case in his favour to the extent of Rs. 70,000.
A sum of Rs. 56,814 is to be paid by the Pakistan Steel on account of the running Bills Nos. 1 to 12 as retention money at the rate of 10% and is refundable by the defendants on receipt from Pakistan Steel. Since the running Bills Nos. 13 and 14 are still under verification and have not been collected so far by the defendants from the Pakistan Steel, the amounts representing these bills cannot be said to be payable now by the defendants under the terms of the agreement, Annexure 'B' referred to above.
7. The contentions of the plaintiff that he will suffer irreparable loss and that the balance of convenience lies in his favour are linked, under the circumstances of the case, with the contention that the defendants are about to sell away their property and leave the jurisdiction of the court with a view to frustrate or at least obstruct or delay the execution of the decree which may ultimately be passed in his favour. I have carefully gone through the affidavits of the plaintiff in this respect. There is simply an allegation to this effect but he has failed to show and bring any material on record to substantiate the allegation that the defendants are in the process of selling away their assets with a view to leave the jurisdiction of this Court. On the contrary the learned counsel for the defendants contends that the defendants are old contractors of the Pakistan Steel and have established business dealings with them. They have still to recover several millions of rupees from the Pakistan Steel and they have no intention to wind up their business and remove their assets outside the jurisdiction of this Court with the intention as alleged.
8. Reliance is placed on the case reported as Haji Daulatbai v. Haji Abdul Khalik Nijat, Irani PLD 1956 Kar.
161. In this case it was held that the requisite intention on the part of the defendant in terms of rule 5 of Order XXXVIII was necessary. Another case relied upon by the learned counsel for the defendants is reported as Muhammad Yousif v. Agha Amir Muhammad PLD 1976 Kar. 926, wherein it was held that attachment before judgment is of an extraordinary nature and the jurisdiction is to be exercised sparingly and strictly in accordance with the procedure prescribed by Civil Procedure Code. The court should be satisfied that the defendant is about to dispose of whole or part of his property with intent to obstruct or delay the execution of the decree which may be passed against him.
9. For ordering attachment before judgment no reference has been shown as to the previous conduct of the defendants to dispose of property immediately before filing the suit nor the allegation of alienation of property during pendency of suit with intention of defeating the decree which may be passed in favour of the plaintiff has been substan tiated by any material to be brought on record. Merely referring to the dispute or rift between Mr. Jaffery, the then Managing Director and the present management can hardly furnish or substantiate the allegation.
10. I am, therefore, not satisfied on the basis of this vague allegation qua defendants' intention to dispose of their assets during pendency of the suit. I am equally not satisfied that the plaintiff has made out any case for injunction to restrain the defendants from disposing of their property in general or operating their bank accounts and receiving any amounts from Pakistan Steel in particular. To grant such relief will not be justified, in the circumstances, for failure of the plaintiff to bring his case within the purview of Order XXXVIII, rule 5 read with Order XXI, rule 46, C.P.C.
11. Upshot of the above discussion is that C.M.A. 3341 of 1984 and C.M.A.3342 of 1984 for temporary injunction and attachment before judgment respectively are dismissed with costs.
M.A.K .