' This is an application filed by the plaintiff under Order XL, Rule 1, C.P.C., praying for the relief "to appoint the Nazir as the Receiver in respect of the machinery and assets of the plaintiff which are in possession of Defendants Nos.1, 2, 4 and 5 on the project site, which is under the control of defendant
2. The facts of the case are that Defendant No,2 proposed to establish a Cement Factory at Lasbella and for this purpose they awarded a contract dated' 29-12-1988 to the Defendant No,1, who happens to be foreign enterprise (Romanian Company). This was a turn-key contract. The works under the contract included civil construction and installation of machinery for the Cement Plant. The Defendant No,1 were permitted to execute the work directly or through sub-contractors.
The defendant No,1 employed and engaged sub-contractors for various items of work on this important project. One of these sub-contractors was the plaintiff, who was awarded the contract for execution of the civil work. As the execution of civil work required some machinery, the plaintiff, it is so alleged, invested huge funds in purchasing this machinery. Partly the funds were provided to him by the defendant No,1 as mobilization charges in the earlier stage of the contract The work proceeded and at some stage differences arose between the plaintiff and the defendant No,1 resulting in cancellation of the contract by the defendant No,l. This cancellation took place on 10-1- 1985. Fresh contract was awarded by the Defendant No,1 to the defendant No,4 for completion of the unfinished work which was left by the plaintiff.
3. It is admitted position in the case that machinery of high value which was purchased by the plaintiff continued to remain on the site even after the cancellation of the contract. There has been a chain of litigations between the parties resulting in several orders passed from time to time at different levels. Mr. Kamal Azfar learned counsel appearing for the plaintiffs refers to a detailed order passed by my brother Nasir Aslam Zahid, J. On 18-4-1985 in Suit No,383/1984. Some of the disputes between the parties have been discussed in this order. Revelant portion of the order which would be helpful for the disposal of this application runs as under:- "Mr. Kamal Azfar has stated that as soon as the Commissioner completes the work at site, the entire staff of M.I.C. Will leave the site.. It is accordingly ordered that within three days of receipt of intimation from the Commissioner about the completion of the work at site, the entire staff of MIC will vacate the site. It has been informed by the learned counsel for Uzin that they have appointed another subcontractor to complete the job, which was required to be executed by M.I.C. It is ordered that the staff of M.I.C. Will not interfere with the carrying out of the work at site by Uzin and/or their sub-contractors. Some constructional plant/machinery, which according to Uzin is not required by Uzin and/or their new sub-contractors for the purposes of completing the work, has already been allowed to be removed from the site by MIC under order passed previously in Suit No, 17/1985. Except for such constructional plant/machinery, for which permission has been specifically granted by this Court, no machinery will be removed by M.I.C. From the site till the disposal of this suit. However, this restraint will not apply to EMM-30 Batching plant which can be removed from the site by MIC. This exception has been made in view of the letter dated 29-4-1984 of Uzin addressed to their advocate annexed to the application CMA No,22.88/1984 filed under Order 23 Rule 1 C.P.C.
For withdrawal of Suit No,559/1983, reference about which has already been made earlier in this order. Uzin is, however, restrained from selling, disposing of or removing any machinery from the site, which had been brought by MIC on the site for the purposes, of construction/erection of the works. Such machinery includes the machinery purchased by MIC from its own resources or from the mobilization advance provided by Uzin to M.I.C. Once the work, subject-matter of the sub- contract between Uzin and MIC, is completed by Uzin and/or their new sub-contractors, it will be open to MIC to make an application for recall/modification of the order restraining MIC from removing machinery from the site. CMAs No, 94/1985 and 97/1985 stand disposed of accordingly."
' In pursuance of these observations, learned counsel for the plaintiffs argued that unless a Receiver is appointed in respect of the machinery which is on site and the machinery is taken care of by which he means to say that it is carefully and properly looked after, there are chances that the machinery which is of high value may become a junk.
' Learned counsel argues that by force of this order he was entitled to apply for the removal of the machinery from the site, but in this application he had chosen for a smaller relief by asking the Court for appointment of a Receiver. The Receiver should be appointed to save the machinery from inclemency of weather and to protect it from other losses. This is, however, without prejudice to his right to apply for removal of the machinery, at a later -stage. Counter-affidavit was filed by the defendant No,2 who are the owners of the project.
5. In the circumstances of the case, it appears to me that the main contesting parties in this dispute are the plaintiff and the defendant No,1. It still remains debatable whether the machinery belongs to the plaintiff as claimed by them or to the defendant No,1 as claimed by the defendant but the facts revealed so far, show that the defendant No,2 who has entered into a. Turn-key contract with the defendant No,1 perhaps has no investment in the machinery. They may have, as alleged by the learned counsel appearing for them, some claim against the defendant No,1.
6. Mr. Muhammad Sharif learned counsel for the defendant No,1 has not filed any counter-affidavit to this application. This learned counsel makes a categorical statement that he does not oppose the prayer for appointment of a Receiver because as he looks at it, appointment of Receiver would be in the best interest of the parties concerned.
7. The defendant No,2, who are owners and are represented by Mr. Muhammad Jamil, have filed counter-affidavit and Mr. Kamal Azfar learned counsel for the plaintiff has invited my attention to paras 3 and 4 of the counter-affidavit which runs as follows:- "3. That the answering Defendant has not violated any order .Of this Hon'ble Court. Attock Cement Pakistan Limited does not possess any machinery or assets belonging to the plaintiff as there is no privity of contract between the plaintiff and the Answering Defendant. The Answering Defendant is neither selling nor alienating any machinery, equipment and assets of the plaintiff nor they have any intentions of doing so.
4. That the Answering Defendant has no objection whatsoever if the Nazir is appointed as the receiver as prayed for by the plaintiff."
8. Mr. Muhammad Jamil learned counsel for the Defendant No,2 has, however, changed his position and his contention is that after he filed the counter-affidavit on 8-1-1987, the situation has changed. The change, according to the learned counsel, is that the defendants No,2 have cancelled the original contract dated 10-5-1980. The learned counsel contends that his clients have some claims against the original contractor and according to him they have a lien on the machinery brought on site, whether by defendant No,1 or any one else. For this purpose he wanted to file an additional affidavit resiling from the position which he has taken in the affidavit dated 8-1- 1987, when questioned, as to what further material the learned counsel would bring on the record to justify the change of position from that which he has taken in the earlier counter-affidavit, the learned counsel states that the change is that he has cancelled the original contract and wants to enforce his lien on the machinery.
Assuming for the sake of argument that the defendant has a lien on this machinery which he wants to enforce, I see no reason how it would prejudice the so-called lien if a Receiver is appointed. The anxiety of the real owner of the machinery is that it should not be misused or allowed deterioration thus tossing its value. That it should be protected to recoup the losses as far as possible.
' In the circumstances it is a fit case in which a Receiver should be appointed. I would appoint the Nazir as Receiver to protect the machinery on site from losses and pilferage. Tentatively the fee of the Receiver is fixed at Rs,5000 to be paid by the plaintiff.
Receiver appointed.