1. ' This is a suit for recovery of Rs,1,26,438 filed by the plaintiff under the Admiralty jurisdiction of this Court.
2. ' Briefly the facts of the case are that the plaintiff is a proprietorship concern engaged in the business of stevedoring. The defendant No,1 arrived at Karachi on 1st January, 1999 and commenced discharging of cargo from 3-1-1999. The plaintiff was performing the job of handling the cargo of the defendant vessel after her arrival at Karachi. Apparently there were continuous break down in the cranes of the defendant No,1 which resulted in heavy stand by time/cost for which the plaintiff submitted the claim for time cost to the Master of the defendant No,1. The plaintiff vide a Fax transmission dated 6-1-1999 requested the Master of the defendant No,1 to settle the claim. The Master after scrutinising the same accepted the claim of the plaintiff to the extent of Rs,1,26,438. This acceptance of the claim is annexed to the plaint as Annexure-C. According to the plaintiff, the defendants failed to make the payment, hence this suit under Admiralty jurisdiction.
3. ' The defendants have filed their written statement and have raised various objections which are factually and legal. It is interesting to note that written statement has been filed by defendant No,1 whilst the defendant No,2 has been declared ex parte by order dated 23-8-1999. This matter was fixed for arguments, hearing and the counsel for defendant No,1 has raised following three legal points. Before I dwelt on the legal objection, it may be pertinent to mention that by order dated 19- 3-1999 the vessel was ordered to be arrested and it was further ordered that it cannot be allowed to sail till a bank guarantee/cash security for the suit amount is provided to the satisfaction of the Nazir of this Court. Thereafter, on the next date Mr. Agha Faquir Muhammad, Advocate filed his Vakalatnama on behalf of defendant No,1 Mr. Agha Faquir Muhammad, Advocate has not furnished any security and/or bank guarantee on behalf of his client and it is the contention of the plaintiff that the matter may be decreed as the counsel has failed to obey the orders of the Court and instead of he has moved an application under Order VII, Rule 11, C.P.C. Insisting that this suit has been wrongly filed under the Admiralty jurisdiction; and that there is no cause of action against the defendants in respect of the claim in suit.
4. ' The objection No,1 taken by the counsel for defendant No,1 is to the effect that under section 3(2) of the Admiralty Act, 1980 the jurisdiction of the High Courts in respect of various types of claims which would fall under the Admiralty jurisdiction has been specified. According to him this claim of time cost does not fall under any of the subsection of section 3(3) of the Act.
5. ' The second objection he has taken is that no court-fee has been paid but on pointation he has acknowledged that court-fees have been paid and thus, not pressed this particular point.
6. ' According to defendant No,1 the description of the plaintiff has been wrongly shown as if it is a proprietorship concern than the suit has to be properly filed in the name of the proprietor and thus, the suit is hit by the provisions of Code of Civil Procedure.
7. ' The counsel for the plaintiff, on the other hand, has insisted that in spite of the orders of arrest no security was given and hence the defendant cannot go beyond the order passed and raised legal and/or other objections without first fulfilling the obligations of the order as provided under the Sindh Chief Court Rules (O.S.) specially Rules, 740 and 756. According to him, without filing written statement and furnishing security he cannot be heard.
8. ' He has further raised an objection that by order dated 23-8-1999 the suit was ordered to proceed ex parte against defendant No,2 who is the beneficial owner of defendant No,1 and hence the suit should be decreed against defendant No,2 consequently it would also be decreed against defendant No,1 as defendant No,1 is a vessel owned by defendant No,2 and even though a lien may attach to the evessel in rem or in personem it is ultimately the owner of the vessel who, has to pay.
9. He has further pointed out that the suit is not in respect of stevedoring charges and in fact he has tried to prove that by virtue of the admission of the Master and acceptance of liability the defendants Nos.1 and 2 cannot go back upon their own admission and raise objections which must amounts to avoidance of payment with mala fide intention. Furthermore, the counsel has claimed that time cost would fall within the ambit of necessaries under section 3(2)(L) of the Admiralty Act and he has relied on the judgment of Cap. Yousuf Kazi and another v. S.S. Phoenix and 3 others PLD 1978 Kar. 1052 where necessaries has been described and the scope and meaning of the word has been dwelt at length. My attention has also been drawn to the portion of the judgment at page 1090 where amongst others things stevedoring, lighterage, tally charges, wages to the crew etc. Under certain conditions also fall within the term 'necessaries'. In this particular case there was a mixed account of necessaries and other accounts. In this case even though admittedly the Master has acknowledged that the amount claimed in suit was correct and in fact in Annexure-C to the plaint the Master has stated clearly that the amount is subject to owners and Agent's approval.
10. I have gone through the case-law on the subject and the objections raised by the counsel for defendants and also of the opinion that the order of arrest was passed on 19-3-1999 and thereafter, the counsel for A defendant No,1 has sought time and then moved application under Order VII, Rule 11, C.P.C. And C.M.A. No,509 of 1999. In case if defendant No,1 was truly aggrieved by the order of arrest and was satisfied that such a claim did not fall within the Admiralty jurisdiction of this Court then such an objection should have been raised immediately and/or appeal should have been filed against the order. Having acknowledged the claim and the liability, it would be futile at this stage to raise objections so as to defeat the possibility of recovery of the amount of the plaintiff which admittedly has been acknowledged by the Master would be to thwart the ends of justice. The objections raised by the counsel for defendant No,1 are dismissed. He is given 10 days time to furnish security from the date of this order.