' AJMAL MIAN, C. J.--This appeal is directed against an order dated 8-8-1989, passed by a learned Single Judge in Suit No,1130 of 1988, dismissing the appellant's/plaintiffs two applications, namely, C.M.A. Nos. 8395/88 and 8396/88 for interim injunction under Order 39 rules 1 and 2 read with section 151, C.P.C. And for attachment before judgment under Order 38, Rule 5, C.P.C.
' The brief facts leading to the filing of the above appeal are that the appellant agreed to purchase from respondent No,1, which is a Swiss Company, 1,000 metric tons of Chick Peas 29/30 (New crop 1988) under indent/agreement dated 8-10-1988. The appellant after obtaining an import licence established L/C for U.S.$ 3,95,000 through M/s. Muslim Commercial Bank Limited, Jodia Bazar, Karachi. The last dates of shipment and negotiation of documents being 15-11-1988 and 30-11-1988.
It seems that respondent No,1 did not ship the goods within the aforesaid period and upon their request the above date was extended up to 30-11-1988. Since the respondent No,1 had not shipped the goods, the appellant filed the aforesaid suit for damages and injunction. The amount of damages claimed is Rs,19,42,850, the break-up of which is as follows:-- {{TABLE}} "(A) Loss/damage due to breach of contract on account of difference in market prices on the date of contract and its breach. Rs, 15,98,850
(B) Import Licence Fee Rs, 2,94,000
(C) Other Miscellaneous Expenses Rs, 50,000 Rs,19,42,850 {{TABLE}} ' A permanent injunction has been sought restraining respondents Nos.1 to 3 from taking away and/or getting remitted any sum of like amount equivalent to the above-mentioned amount of Rs,19,42,850 out of the amount lying to their credit and/or in their account for remission to them and a direction to respondent No,3 to pay the amount claimed in the suit out of the amount lying with the above respondent to the credit of respondent No,1. The above two applications were also filed for the aforesaid relief which have been dismissed by the learned Single Judge as observed there in above.
' The appellant being aggrieved by the above order have filed the present appeal.
2. Mr. Mansoor Ahmed Khan, learned counsel for the appellant in support of the above has vehemently urged that the appellant ere entitled to an ad interim injunction restraining the respondent No,3 from remitting an amount equivalent to suit claim to respondent No,1 till the disposal of the above suit. The learned Single Judge in his order under appeal has referred to the cased--
(1) Fazal Din v. Mst. Robeena Aurangzeb and 2 others 1983 CLC 1280.
(2) Chairman, Municipal Committee, Taxila v. Muhammad Jan and 4 others 1987 CLC 2416.
(3) New Bengal Shipping Company v. Eric Lancaster Stump PLD 1952 Dacca 22.
(4) Messrs H. Nizam Din and Sons Ltd., Karachi v. m.v. "Oroomee" and 4 others PLD 1977 Kar.722.
(5) Associated Drillers Ltd., Karachi v. Messrs Dirk Verstoop B.V. Karachi PLD 1979 Kar.
734. ' in order to conclude that the appellant is neither entitled to an ad interim injunction nor an order of attachment before judgment. It has been held by the Superior Courts in Pakistan that attachment before judgment cannot be claimed merely on the ground that the defendant is a foreigner and does not own any assets in Pakistan. Reference may be made to the cases of (i) New Bengal Shipping Company v. Eric Lancaster Stump PLD 1952 Dacca 22, (ii) Messrs H. Nizam Din and Sons Ltd., Karachi v. m.v. "Oroomee" and 4 others PLD 1977 Kar.722, and (iii) Associated Drillers Ltd., Karachi v. Messrs Dirk Verstoop B.V., Karachi PLD 1979 Kar. 734, referred to by the learned Single Judge in the above-mentioned cases but a plaintiff will have to show that the defendant is about to dispose of his property or is about to remove it from the local limits of the jurisdiction of the Court with intent to obstruct or delay the execution of any decree that may be passed against him.
However, Mr. Mansoor Ahmed Khan has submitted that even if an order for attachment before judgment cannot be passed but an interim injunction can be granted in line with Mareva injunction which is being granted by the English Courts in similar situation. In this regard, it may be pertinent to give the background of the invention of aforesaid Mareva Injunction in England. M/s. Mareva Compania Naviera had let out their vessel, namely, "Mareva" to the defendant charterers on a time charter-party for a trip to the Far East and back. The vessel was delivered to the charterers on 12-5- 1975 who sub-chartered it on a voyage charter to the President of India. Under the terms of charter-party higher charges were payable half monthly in advance. The charterers paid two instalments but the third instalment, which was due on 12-6-1975, was not paid. Upon exchange of telexes the charterers made it plain that they were unable to pay. Mareva Compania Naviera treated as the charter-party repudiated by the charterers and issued a writ claiming U.S. $ 30,800 unpaid hire and damages for repudiation. Alongwith the suit an application was filed for an ex parte injunction to restrain the charterers from removing or disposing of any of the moneys which the charterers had received under the voyage charter out of the jurisdiction. Mr. Justice Donaldson granted the injunction but only up. To 23-6-1975. The Mareva It ompania Naviera, SA. Filed, an appeal which was upheld. Lord Denning, after referring to the case-law and the provisions of section 45 of the Judicature Act, observed as follows:-- "In my opinion that principle applies to a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it appears that the debt is due and owing-- and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment--the Court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets. It seems to me that this is a proper case for the exercise of this jurisdiction. There is money in a bank in London which stands in the name of these time charterers. The time charterers have control of it. They may at any time dispose of it or remove it out of this country. If they do so, the shipowners may never get their charter hire. The ship is now on the high seas. It has passed Cape Town on its way to India. It will complete the voyage and the cargo discharged. And the ship-owners may not get their charter hire at all. In fact of this danger, I think this Court ought to grant an injunction to restrain the defendants from disposing of these moneys now in the bank in London until the trial or judgment in this action. If the defendants have any grievance about it when they hear of it, they can apply to discharge it. But meanwhile the plaintiffs should be protected. It is only just and right that this Court should grant an injunction. I would therefore continue the injunction?
3. After the decision of the above case interim injunction restraining the defendant from removing his money from the jurisdiction of the English Court became known as Mareva Injunction. The above case has been consistently followed by the English Courts inter alia in the following cases:--
(1) Nippon Y. Kaisha v. Karageonagis (1975) 2 LI LR 137 (CA).
(2) Mareva Compania Naviera SA. v. International Bulkcarriers SA. (1975) 2 Ll LR 509 (CA).
(3) CBS, UK v. Lombert (1982) 3 All ER 237 (CA).
(4) Project Development v. Fidelity Int. (1983) 1 All ER 465 (QB).
(5) Stackler v. Frouways (1983) 3 All ER 501 (QB).
(6) Cayne v. Global Natural (1984) 1 All ER 225 (CA).
(7) Ninemia v. Trave (1984) 1 All ER 398 (QB).
(8) Sanders Lead v. Entores Mital (1984) 1 All ER 857 (CA).
(9) TDK Tape v. Videochoice (1985) 3 All ER 345 (QB).
(10)SCF Finance v. Masri (1985) 2 All ER 747 (CA).
(11)Bayer v. Winter (1986) 1 All ER 733 (CA).
(12)Z Ltd. v. A & others (1982) 1 All ER 556.
(13)Oceanica Castelana Armadora SA v. Mineralimportexport (Barclays Bank International Ltd.
Intervening) The Theotokos and related Applications (1983) 2 All ER 65 and (14)Ashtiani and another v. Kashi (1986) 2 All ER 970.
' In the above-cited cases the Courts have also referred to the question, what is to be shown by a plaintiff, namely, whether he is to show that he is going to get a decree in his favour or should he show that he has a triable issue. In that context it has been observed that the plaintiff will have to show that he has a triable issue. It may be pertinent to point out that aforesaid Mareva Injunction has now been given statutory recognition by enacting inter alia section 37 in the Supreme Court Act, 1981. Prior to that, as observed hereinabove, there was section 45 of the Judicature Act, which provided as follows:- "A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient."
4. Mr. Mansoor Ahmed Khan has referred to section 94 of the C.P.C., which provides that in order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, make orders specified in. Clauses (a) to (e) of the above section. It may be advantageous to reproduce section 94, C.P.C., which reads as follows:- "94. Supplemental proceedings. --In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,--
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security, commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient."
' It may be observed that clause (e) empowered the Court to make such other interlocutory orders as may appear to the Court to be just and convenient. On the basis of the above clause, it has been contended by Mr. Mansoor Ahmed Khan that the powers contained in Orders 38 and 39, C.P.C. Are not exhaustive and that the recourse can be made to above clause (e) in a fit case, where the case does not fall within the ambit of Order 38 or 39, C.P.C. On the other hand, Mr. J.H.Rahimtoola, who was present in response to the service of notice on him under Order 43, Rule, 3, C.P.C. Has submitted that above section 94 itself makes it clear that the powers contained in clauses (a) to (e) can only be exercised, if it is so prescribed and that the prescribed manner has been provided inter alia in Orders 38 and 39, C.P.C. And, therefore, beyond the purview of the above provisions of the C.P.C., no order can be passed. We are inclined to agree with Mr. Mansoor Ahmed Khan that in a fit case the Court may grant interim injunction even if the case does not fall within the four corners of the well-settled priciples under Order 39, rules 1 and 2, C.P.C., if the facts of the case so demand, in order to foster the cause of justice. Nasir Aslam Zahid, J. In the case of Mst.
Salma Jawaid and 3 others v. S.M. Arshad and 7 others, reported in PLD 1983 Kar.303, has inter alia held that the Court can grant temporary injunction or appoint receiver by exercising inherent powers in the interest of justice after making reference to sections 94 and 151, C.P.C. The relevant observations are as follows:-- "It is not considered necessary to comment separately upon each judgment cited before me.
Suffice it is to observe that in some judgments the Superior Courts have exercised powers under section 94 or 151 of the Code of Civil Procedure to grant relief to a claimant or applicant although the case did not fall within the four corners of specific provisions of the Code. In other cases the Courts declined to exercise their inherent powers under section 151, C.P.C. Where they reached the conclusion that the case made out by the claimant or applicant was not covered by a provision of the Code. I have however, no hesitation in rejecting the proposition advanced by Mr. Wajihuddin that inherent powers of the Court are not available to grant a temporary injunction or appoint a receiver and such relief can only be granted under Order XXXIX, rules 1 and 2 or Order XL, rule 1, C.P.C. I may with respect refer to the observations made by the Supreme Court of Pakistan in PLD 1962 SC 119 to the effect that generally speaking the Code of Civil Procedure does not create new powers but regulates the exercise of powers already possessed by the Court and even before the Civil Procedure Code was enacted, the Civil Court possessed powers of the kind mentioned in the Code and that the Civil Court possessed the powers because it has jurisdiction to determine and protect civil rights and for the protection of those rights the exercise of such powers is essential.
Supreme Court of Pakistan, elucidating the principle further, observed in H.M.Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 that the Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for and to give such a meaning to the omission would result in grave injustice. It was further observed that the Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."
' Mr. Mansoor Ahmed Khan has also referred to the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, reported in AIR 1962 SC 527, in which Indian Supreme Court has held that if the circumstances of the case are not covered by Order 39, Court can issue injunction under its inherent powers.
5. The question, therefore, which requires consideration, is as to whether the plaintiff has been able to make out a case warranting the grant of an interim injunction beyond the purview of Order 39 rules 1 and 2, C.P.C. As pointed out hereinabove, the plaintiff's suit claim is not in relation to the money which they might have paid as the price of the goods which were not supplied by respondent No,1 but their claim relates to unliquidated damages. The appellants are seeking interim injunction against respondent No,3 bank not to remit to the extent of the suit claim out of the money received by it under some other letter of credit not in respect of the contract in question.
A D.B. Of this Court in the case of Messrs Kohinoor Trading (Pvt.) Ltd. v. Mangrani Trading Co. And 2 others reported in 1987 CLC 1533, has inter alia observed as follows on the question of withholding of payment under an L/C through an interlocutory injunction:-- "The above cases cited by Mr. Nasim Farooqui and the passages from the Book referred to by him indicate that generally an irrevocable letter of credit cannot be dishonored by a bank but there may be exceptions to the above general rule, for example, where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent but the evidence on the question of fraud and as to the bank's knowledge must be clear, or when there is challenge to the validity of the letter of credit. In the present case respondent No,3 Bank was to remit L/C amount to their counterpart in Switzerland on the basis of the commitment made by them. The appellants obtained the documents from respondent No,3 without any protest and without pointing out that there was any breach as to the terms of the L/C. It is also apparent that though the alleged survey report (which according to the learned counsel for the respondents Nos.1 and 2 is an ex parte carried out after several weeks from the date of the delivery) indicates that the packing of the goods were allegedly found in damaged condition, the appellants had taken the delivery of the goods from the carrier without any protest. The question, whether the goods were dispatched by respondent No,2 in accordance with the description given in the letter of credit or whether there was any breach as to the quality would be an issue at the trial. In our view, under an irrevocable letter of credit payment cannot be stopped on the ground that there was some breach on the part of the vendor as to the quality of the goods. An irrevocable letter of credit is a negotiable document in the commercial world which is negotiated inter alia inter se between the banks and, therefore, the Court cannot cause its dishonoring by one bank to another, unless prima facie a sufficiently grave cause is shown. If we were to accept the contention of Mr. Nasim Farooqui it will gravely impair reliability and sanctity of an irrevocable letter of credit and will lead to commercial uncertainty. An irrevocable letter of credit is open in favour of a foreign exporter through a bank, which in turn makes commitment to a foreign bank, which in turn makes the payment generally against the bill of lading and other necessary documents after the shipment of the goods."
6. We may point out that in the English cases, in which Mareva Injunction was granted and relied upon by Mr. Mansoor Ahmed Khan, the plaintiff obtained in most of the cases Mareva Injunction in respect of the money or major portion of the money which belonged to him or in respect of which there was no doubt about the admissibility of the amount of his claim. In the instant case at this stage it cannot be said that how much amount of damages the appellant would be entitled in case they succeed to prove breach on the part of respondent No,l. Secondly, the injunction is sought in respect of the money received by respondent ' No,3 under a letter of credit of some different transaction, the letter of credit being negotiable, we cannot make respondent No,3 to commit the breach of the terms of the letter of credit.
' We are, therefore, of the view that the order under appeal seems to be in consonance of law and does not call for an interference. The appeal has therefore, no merit and it is dismissed in limine.
The interim order passed on 30th August, 1989 at the time reserving the case for orders after hearing the arguments is recalled.