1. SAIDUZZAMAN SIDDIQUI, J.---The above mentioned Criminal Original Petition has been filed by the petitioners under Article 204 of the Constitution of Islamic Republic of Pakistan and the Contempt of Court Act, 1976 for drawing proceedings against United Bank Limited for an alleged breach of the order of this Court, dated 5-4-1994. The petitioners M/s. M.E.F.T. Pakistan (Pvt.) Limited, are the distributors of Puegeot vehicles. Number of Peugeot vehicles was imported by the petitioners under Yellow Cab Scheme. The present grievance of the petitioner is that out of total number of Peugeot vehicles imported by them, 141 Peugeot vehicles 205-D were illegally re-exported to France with connivance of the respondents. It is contended by the petitioners that the property in the above said 141 Peugeot vehicles had passed on to the petitioners, and therefore, their re-export to France amounted to breach of the order of this Court. In terms of order of this Court, dated 5-4-1994, the imported vehicles were required to be disposed of as follows:-- "We are, therefore, of the view that all those vehicles which were imported under letters of credit established before 26-7-1993 and were cleared before 16-9-1993 were not subject to payment of any, customs duty, sales tax or surcharge as provided under Notification No,S.R.O.251(I)/93, dated 3-4-1993 provided the bills of entry for their clearance were filed with the Customs before coming into force of Notification No, S.R.O.815(I)/93, dated 16-9-1993. It is admitted before us that all the vehicles which are subject-matter of the above cases were booked by individuals who had deposited 10 per cent equity ratio with the banks, which was subsequently paid by the banks to the petitioners to enable them to establish letters of credit for import of these vehicles from various countries. These vehicles, therefore, on clearance have to be first offered at the price either already fixed by the Government or to be fixed by the Government, for sale to the persons who had deposited 10 per cent equity ratio for import of these vehicles, on condition of payment of the balance of 90 per cent price. In case the individuals who had booked the vehicles are not ready to take delivery of these vehicles on payment of 90 per cent balance price, the importers may after returning their deposit with mark up of 15 per cent may dispose of these vehicles to any other person who is willing to ply these vehicles either as taxis or as a public transport as the case may be, in accordance with the provisions of Yellow Cab Scheme. In case end user of these vehicles is changed by the importers they will be liable to pay statutory duty on these vehicles as prescribed under the law. The petitioners before obtaining delivery of these vehicles will settle the dues of L.C.
2. Opening banks and will also settle the claim of demurrage with the K.P.T. Authorities. The banks which provided bank guarantee under the orders of this Court to the K.P.T. In respect of its claim of demurrage will continue to hold lien on these vehicles until such time the claim of demurrage is settled or discharged by the petitioners."
3. No doubt, in the order of this Court it was held that the property of the vehicles had passed on to the petitioners but it is quite clear from the operative part of the order, reproduced above, that all the vehicles which were imported under Yellow Cab Scheme were booked by the individuals who had contributed 10% equity ratio which amount was paid by the importer/ petitioners to the Bank to enable the Bank to open letters of the credit for import of these vehicles. These vehicles in terms of the order reproduced above, open clearance were to be offered to those who had contributed 10% equity ratio of import of these vehicles, on payment of 90% balance price. It was further provided that in case those persons who contributed 10% equity ratio, were unwilling to pay balance of 90% price, the 10% deposit made by them was to be returned to them with 15% mark up and thereafter, the vehicles could be disposed of to the persons who were willing to ply these vehicles as Taxi or as public transport as the case may be, in accordance with the provisions of Yellow Cab Scheme.
4. However, it was clearly provided in the order quoted above that the petitioners/ importers before obtaining delivery of these vehicles were required to settle the dues of the Bank which opened the letter of credit, in addition to settlement of the claim of demurrage with K.P.T. Authorities. It was further declared in the said order that the Bank which provided guarantee under order of the Court to K.P.T. In respect of the claim of demurrage, will continue to hold lien of these vehicles until such time the claim of demurrage is settled or discharged by the petitioners. The contention of the petitioners before us is that these 141 vehicles have been re-exported to their principal in a clandestine manner, which has caused serious losses to the petitioners besides depriving them of the equity ratio which they had contributed towards the import of these vehicles. The learned counsel for the respondents, on the other hand, very vehemently contended that after orders of this Court, dated 5-4-1994, neither any attempt was made by the petitioners to settle the dues of the Bank nor they offered balance of 90% price of these vehicles and settled the dues of K.P.T.
5. Which was a condition precedent for clearance of these vehicles in favour of the petitioners. It is also contended by the respondents that as no steps were taken by the petitioners as directed in the operative part of the judgment, reproduced above, the petitionersprincipal approached the Ministry of Commerce for re-export of the vehicles as they were not paid full price of these vehicles.
6. It is contended by the learned counsel for the respondents that the petitioners were fully aware of the move of the principal that they are making effort to get these 141 Peugeot vehicles re-exported as they were not paid the price and in this connection, the petitioners themselves addressed the following letter to their principal claiming a sum of Rs,54,57,036:-- "M.E.F.T. PAKISTAN (PRIVATE) LIMITED.
7. DATED: JUNE 5, 1994.
8. MR.M MANSUY Area Manager for Central Asia, Automobiles Peugeot, DAO DEN 24 PARIS.
9. FAX: 33-1-4066-4335 Dear Sir, Further to our fax, dated 1st June, 1994 we have learnt from United Bank Limited that you want to take back 141 units of Peugeot 205 (Diesel) taxis.
10. We are surprised that you did not inform us about this yourself. The following payment will have to be made and the cars can be taken out on the terms enumerated below:--
(1) Import Licence fees incurred by us for opening of L/Cs for 141 units:Rs,15,45,787
(2) Marine Insurance (141 Units): Rs,2,32,454
(3) Legal expenses: Rs,8,58,795
(4) Administrative expenses: Rs,28,20,000 Total:- Rs,54,57,036 With best wishes. Yours sincerely, Sd/- (A . A . MALIK)
11. PROJECT DIRECTOR CC; (1). Mr. Aziz Ullah Memon, President, United Bank Limited Karachi.
(2) Mr. Valentin Malt, Economical and Commercial Counsellor, French Embassy, Islamabad."
12. The learned counsel for the respondents accordingly, contended that not only the sum mentioned in the above letter, dated 5-6-1994 addressed by the petitioners to their principal but an amount far in excess has been paid to the petitioners and, therefore, they cannot now claim any breach of the judgment of this Court, dated 5-4-1994. In addition to the above facts, the learned counsel for the respondent further contended that the petitioners have already instituted a suit against the respondents for damages which is pending before the High Court of Sindh, and therefore, they cannot ask for refund of any amount in the present proceedings. In response to the above contention of the learned counsel for the respondents, the learned counsel for the petitioners contended that no doubt, they wrote a letter, dated 5-6-1994 referred to above to their principal but they never consented to the re-export of these vehicles out of Pakistan. He has referred to other letters addressed by the petitioners in this regard to their principal as well as to the respondents wherein it has been claimed by the petitioners that they had modified their claim as mentioned in their letter, dated 5-6-1994 and had demanded other concession from the principal in order to facilitate re-export of vehicles out of Pakistan. On these premises, the learned counsel for the petitioners contended that as the respondents had not agreed to the demands made by the petitioners subsequent to their letter, dated 5-6-1994, the reexport of vehicles amounted to breach of the order of this Court, dated 5-4-1994 After hearing the learned counsel for the petitioners and the respondent at length, we are of the view that it is not a fit case for drawing contempt proceedings against the respondents.
13. The procedure for disposal of the vehicles imported under Yellow Cab Scheme was clearly indicated in the order of this Court, dated 5-4-1994. Therefore, if the petitioners wanted to take delivery of these 141 vehicles they were required to pay the balance of the 90% price of these 141 vehicles, besides settling other dues mentioned in this Court's order, dated 5-4-1994. The record before us, however, does not show that the petitioners offered to pay 90% balance price in addition to other dues and demurrage etc., in respect of the disputed 141 vehicles but respondents declined to accept the same and offer delivery thereof to the petitioners. These vehicles were reexported out of Pakistan at the instance of the principal of petitioners as the balance price of these vehicles was not paid to them. No doubt the action on the part of Ministry of Commerce to have allowed re- export of these vehicles was not in accordance of judgment of this Court but admittedly no effort was made by the concerned parties to make payment of the balance price of these vehicle in terms of order of this Court. Therefore, keeping in view the fact that the supplier/ principal of the petitioners could not wait indefinitely for payment of the balance price of these vehicles, re-export thereof, in these circumstance, could not be treated as breach of the order of this Court. Even otherwise, the petitioners themselves having confined their claim for damages arising out of export of these 141 vehicles cannot turn round now and ask for drawing contempt proceedings against the respondents. The petitioners having already lodged their claim for damages against the respondent in the appropriate Court, cannot ask for initiation of contempt proceedings against the respondent on the same facts. The petitionersclaim for damages is already pending adjudication before a competent Court, and therefore, we would refrain from expressing any opinion on the controversies raised in this petition. With these observations, the contempt application is dismissed.