' AJMAL MIAN, J.---This is a petition for leave to appeal against the order dated 6-6-1994 passed by a Division Bench of the High Court of Sindh in High Court Appeal No,77 of 1994 filed by the petitioner against the order dated 8-5-1993 of a learned Single Judge of the same High Court passed upon a number of Civil Miscellaneous Applications in a number of connected suits, dismissing the same by affirming the above order of the learned Single Judge:
2. The brief facts are that the petitioner had placed order with respondent M/s. Devon Industries Sdn. Dhd, Singapore for supply of about 1515 metric tons of R.B.D. Palm Oil in bulk on C & F Karachi basis. It appears that upon receipt of contract/pro forma Invoice from respondent No,5 through their agents M/s. Steel Co., the petitioner opened a letter of credit through respondent Muslim Commercial Bank Limited, Mirpur, Azad Kashmir Branch. The amount was payable after 120 days from the date of Bill of Lading. It seems that respondent No,5 entered into similar transactions with some other importers. For the sale of R.D.B. Palm Oil. It also seems that 0982.472 metric tons- and 3488.324 metric tons of R.D.B. Palm Oil arrived at Karachi on board the vessels "Maritime Prudence" and "Templer" respectively. It further seems that upon arrival of the above consignments the local agents of the vessels declined the delivery on the ground that respondent No,5 in collusion with respondent No,2 obtained the Bill of Lading fraudulently. It may be pertinent to mention that Suits Nos.379, 386, 393, 394, 395, 396 and 397 of 1993 were filed in the High Court of Sindh pertaining to the palm oil on board the vessel "Maritime Prudence", whereas Suits Nos.387, 398 and 399 of 1993 were filed in respect of the palm oil on board the vessel "Templer". The above latter three suits included the petitioner's suit, namely, Suit No,398 of 1993.
3. It may be stated that alongwith the plaint in the. Above suit, the petitioner also filed an application under section 94 and Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Praying for the following reliefs:-- "It is respectfully prayed on behalf of the plaintiffs abovenamed that on consideration of the facts disclosed and the grounds stated in the ' accompanying affidavit the Hon'ble Court may be pleased to issue--
(1) interim mandatory injunction to the defendant No,4 to issue delivery order for the goods in suit to the plaintiffs;
(2) issue prohibitory injunction against the defendant No,6 restraining them from making payment to the defendant No,4 or their. Banker under the relevant Letter of Credit/Bill of Exchange.
(3) a prohibitory injunction against the defendants Nos.4, 7 and 8 from issuing delivery order/giving delivery to any other than the plaintiffs. Ad interim orders are also solicited."
4. It appears that similar applications were filed by the other plaintiffs in the suits, who also imported R.B.D. Palm Oil. It further appears that some other applications were also filed by the defendants and the intervenors in the suits.
5. The learned Single Judge took up all the miscellaneous applications in the aforesaid suits and by the above common order dated 8-5-1993 disposed of the same in the following terms:-- "Besides, it is neither possible nor desirable, on the material before me at this stage, to decide as to which of the parties with rival claims to the oil is entitled to it. In this view of the matter and in view of the fact that the oil is admittedly a perishable cargo, the parties agreed, during the hearing, that irrespective of the position as to payment under the letters of credit, the oil be sold without prejudice to their respective rights and contentions in the suits and subject to the following terms and conditions:--
(i) the plaintiffs in each case, if they so choose, shall be given delivery of the oil which is the subject-matter of such suit upon furnishing a bank guarantee, in the relevant foreign currency, for an amount equal to the invoice value of such oil together with profit thereon at such rate as may be prescribed by State Bank of Pakistan on Foreign Currency Accounts.
(ii) Upon failure of the plaintiffs or any of them to exercise the option in terms of (i) above either because they have made the payments or because the banks have remitted the amounts of the relevant letters of credit or for any other reasons, the oil in respect of which such option is not exercised shall be sold by a Commissioner to be appointed by Court and the net proceeds, after expenses of sale, shall be converted into foreign currency and deposited in interest bearing foreign currency account. Upon conclusion of the suit the proceeds of such accounts with accrued interest thereon shall be paid to such of the parties as will succeed in establishing its claim to the oil"
' The Official Assignee is, therefore, hereby appointed receiver of the R.B.D. Palm Oil for the purpose of selling the same on the above terms and conditions and the further following terms and conditions:--
(a) The plaintiffs shall exercise their option in terms of condition (i) above within seen days from today.
(b) Upon expiry of the aforesaid period of seven days, the receiver shall invite offers by sealed bids for sale of the oil or such part thereof in respect of which the plaintiffs have not exercised their option as aforesaid.
(c) The bidders shall be required to submit their bids on or before the day to be notified by the receiver and to deposit with the receiver, alongwith their bids, an amount equal to ten per cent. Of their respective bids.
(d) Successful bidders shall be liable to pay customs duty, sales tax, Iqra surcharge and other customs dues, port charges and storage charges due and payable in respect of the oil, or part thereof, in respect of which their bids are accepted.
(e) Such of the plaintiffs as choose not to exercise then option as aforesaid shall be entitled to offer their bids to the receiver.
(f) The receiver shall put up such bids as may be received by him before the Court for such order as might be considered appropriate."
6. Against the above order, the present petitioner filed the aforesaid High Court Appeal, which was dismissed as the leaned Judges of the Division Bench held that no injunction could be granted restraining the bank from honouring the letters of credit. As regards the granting of interlocutory mandatory injunction, the following observations were made:- "We also find ourselves in agreement with the observations made by the learned Single Judge that no case of issuance of a mandatory injunction had been made out. The holders of local Bills of Lading who had also intervened as parties in the case had claimed the (sic) and some of them had already taken legal action against the carrier. Consequently, if the oil was delivered to the appellants and it was subsequently found that they were not entitled to the same, the carriers under such circumstances would be liable to deliver the oil to the holder of the local Bills of Lading.
Consequently, it was rightly held by the learned Single Judge that grant of mandatory injunction would seriously prejudice their case. Mr. Kazim Bukhari has also questioned the observations made by the learned Single Judge that the appellants had given their consent for sale of the oil in question, pending final disposal of the case. However, he is not supported in this regard by the learned counsel for the respondents. We are, however, of the view that there was no need for the learned Single Judge to make such observations unless all the parties concerned had given their consent to the sale of the oil in question."
' The petitioner has, therefore, filed the present petition for leave to appeal.
7. In support of the above petition, Mr. M. Bilal, learned Senior Advocate. Supreme Court appearing for the petitioner, has candidly submitted that since under the letter of credit the payment has already been made by respondent No,6, the prayer mentioned in para. (2) of the above stay application quoted hereinabove has become infructuotis. However, he submitted that the learned Judge in Chambers though allowed the delivery of the imported plam oil, but had imposed the condition of furnishing bank guarantee. According to him, the above condition was not justified as admittedly the petitioner paid the price of the palm oil and also huge amount towards the customs duty etc.
8. We would not like to express our opinion on the merits of the case. However, it will suffice to observe that the learned Judge in Chambers has rightly highlighted in the impugned order that the rights and obligations under the letter of credit and the bill of lading are different. It is true that the learned Judge in Chambers has not restrained the bank from making payment under the letter of credit, but it does not necessarily follow that he was bound to allow the delivery of the palm oil to the petitioner. We find from the impugned order that the learned Judge in Chambers has dilated upon the various claims in respect of the palm oil in dispute and has passed a fair order, the operative portion of which has been quoted hereinabove. The learned Judges of the Division Bench have also adverted to the points involved in the case and have declined to interfere with the above order. We are also of the view that the above order of the learned Judge in Chambers prima facie seems to be a fair order and, therefore, it does not call for interference. Leave is, accordingly, refused.
9. However, at the request of Mr. M. Bilal, two weeks' time is allowed from today to the petitioner to take the delivery of the palm oil in terms of the above order dated 8-5-1993 of the learned Judge in Chambers, if the oil has not yet been disposed of. We would also observe that it will be appropriate if the High Court may expedite the disposal of the above suits as many parties are involved and so also amounts involved are also huge.