C.M.A. No,311 of 1996 is an application under Order 39, Rules 1 and 2, C.P.C. read with section 151, C.P.C. praying to restrain the defendant No,1 from recovering and defendant No,2 from paying any amount of claim for the alleged short landing of cargo under Bank Guarantee, dated 27-11-1995 furnished by defendant No,2.
Mr. Rizwan Siddiqui states that the suit was filed on 18-1-1996 and Ale stay application was put up on 21-1-1996 and the order was served on the defendant No,2 at about 4-30 p.m. on the same day.
According to him the Bank received a letter, dated 24-1-1996 for encashment of the Bank Guarantee. and since this was an unconditional Bank Guarantee, the Bank prepared a pay order on 18-1-1996 and the same was delivered to the Government on the same date. He submits that once the pay order was handed over, the Bank was absolved from its duty and it was encased by the State Bank of Pakistan on 30-1-1996. According to him once the pay order is issued the payment cannot be stopped. He has relied on the case of Haidry Construction Company Ltd. v. B.C.C.I.
(Overseas) Limited 1991 CLC 149 wherein the learned Judge has observed that "a bank draft once delivered to a party amounts to payment of that particular amount from the issuing bank. Such draft has its own sanctity and according to banking practice was treated as cash payment or equivalent to payment".
According to the learned counsel, in the light of the above judgment and the law, the Bank having once issued the pay order could not stop the payment of the same.
In view of the submissions of the learned counsel and the fact that the amount has already been paid, subject to the rights of the plaintiff, this application having become infructuous, is dismissed.
2. Notice to the defendants as well as the contemnor for a date in office.
3. The alleged contemnor has furnished an unconditional apology which is accepted and the said alleged contemnor is released from the contempt proceedings.