1. ' It is a suit for cancellation of documents, praying for the following reliefs:-
(i) Declare that the defendants 1 and 2 having committed breach of the suit contract while supplying defective goods are not entitled to the value of the letter of credit (Annexure 'C') and in view of the price differential established by survey, laboratory reports and resale the letter of credit be cancelled and from its proceeds the plaintiff is entitled to obtain corresponding adjustment in the price to the extent of the assessed loss on account wherrof the defendants 1 and 2 are only entitled to the value of the goods to the extent of Rs,8,74,125.00 which amount only be remitted from the proceeds of letter of credit and the balance of amount of Rs,8,40,456.00 being plaintiff's entitlement be decreed in favour of the plaintiff by way of money decree against defendants 1 and
2. .
(ii) A perpetual injunction to issue to defendant No,3 restraining them from paying the total amount covered by the letter of credit No,KAR 86114 and out of the said credit remit only Rest and to retain the balance until adjudication of the suit and pending such adjudication the amount be invested in Defence Saving Certificates of Government of Pakistan and upon final adjudication of the suit to pay up the amount alongwith interest to date to the party found entitled thereto.
(iii) Award costs of the suit.
(iv) Any other relief which this Honourable Court may deem just and proper in the circumstances of the case."
2. ' The above application under Order 39, Rules 1 and 2, C.P.C. Arises out of the alleged fact that the goods supplied by defendant No,2 are not according to specification as required udder sections 15 and 16 of the Sale of Goods Act, 1930. Admittedly the goods arrived in Pakistan, got cleared by the plaintiff and surveyed and then sold. All this happened in the absence of defendant No,2. The assertion of the plaintiff is that he has suffered a loss of Rs,8,40,456.00 as stated in para. I of the prayer clause. Be that asit may, the question before me is whether he has got a prima facie case in his favour for the grant of an interim injunction, restraining defendant No,3 bank from paying the balance amount of about Rs,6 Lacs to defendant No,2 and even if it is established tentatively that he has got a prima facie case whether by not granting interim injunction, the plaintiff will suff.;r irreparable loss. Mr. Badruddin Vellani, learned counsel for the defendant No,2 submitted that there is no prima facie case in favour of the plaintiff inasmuch as the survey was carried out behind his back and that too after 15 days and at the plaintiff's warehouse. The letter of credit established by the plaintiff in favour of defendant No,2 deals only in documents and not the actual goods or .The state of goods. Documents were negotiated under the letter of credit, accepted by all the concerned banks and the plaintiff and, therefore, the liability of defendant No,3 to pay to defendant No,2 under the letter of credit cannot be revoked or hampered with. I have read the survey report with the learned counsel for the parties. The report, inter alia, establishes the nature of goods as viscose fibre. In fact the report states, "contents were sampled and sent to laboratory for analysis.
3. The result confirmed 100% viscose fibre." Mr. Farooqui, however, submits that it is, of second quality and not first quality. About the quality the report only mentions that "the goods as inspected to constitute old stock lot/inferior/second. It can be disposed of as seconds." I think while deciding injunction applications I must not dwell on this aspect any more, as it may affect the merits of the case at the. Time of regular hearing, because it is a matter of evidence.
4. On the facts and circumstances it appears that the plaintiff has not made out a prima facie case for injunction. Now, the question is whether the plaintiff shall suffer an irreparable loss if the injunction is not granted. Admittedly, the case does not fall within the ambit of Order 39, rule 1, C.P.C. Mr. Farooqui, however, submits that Rule 2 is attracted to the facts of the present case. Rule 2 is, in fact, in relation to issuance of an interim injunction to restore repetition or continuance of the breach which, on the facts of the case, is not there, because the contract has already been completed, goods have been supplied and, in fact, they have been sold unilaterally by the plaintiff.
5. In case, the plaintiff has suffered any loss it can be adequately compensated in terms of money.
6. Moreover, the defendant No,3 Bank is under legal and moral duty to pay the amount to its counter- part in Switzerland and there being a privy of contract between defendant No,3 Bank and the foreign Bank. Defendant No,3, it will be inequitable to issue an injunction against them as prayed.
7. The application, is, therefore, rejected.
8. ' Ad interim order against defendant No,3 already issued stands discharged.
2. Adjourned by consent.
9. Application rejected.