' SYED JAMSHED ALI, J.----This is plaintiff's first appeal. Plaint in the suit for damages for breach of contract and permanent injunction has been rejected vides order, dated 11-12-1999.
2. The plaintiff is a United State based firm. The case set up in the plaint was that the appellant offered to supply to respondent No,1 30000 Metric Tons of DI- Ammonium Phosphate (D.A.P.) and after necessary correspondence, a duly concluded contract came into existence through the pro forma invoice of the plaintiff duly accepted by respondent No,
1. The appellant claimed to have made arrangements for the supply of the aforesaid goods. It was further averred that respondent No,1, however, backed out.
3. In the suit, the appellant had claimed damages to the tuns of 1.252 Million U.S. Dollars on various counts, the details of which have been given in paragraph 10 of the plaint. A permanent injunction was also claimed in the following terms:-- "(i) Defendant No,1 is restrained to take the delivery, to sell or to alienate or to transport or to hand the possession over to anybody else of 5700 metric tons, fertilizer from the ship namely m.v.
Autumn discharging on 15-11-1999, may be passed.
(ii) The defendants Nos.2 and 3 may graciously be directed to withhold 5700 metric tons, fertilizer from the abovementioned ship and be restrained from handing it over to anybody including the defendant No,1 or to give possession for any purposes to anybody except under the order of this Honourable Court."
3. On 26-11-1999, respondent No,1 made an application under Order VII, Rule 11 of the Code of Civil Procedure seeking rejection of the plaint on the grounds that the appellant-plaintiff had no cause of action because there was no concluded contract between the parties, that the suit was not filed through a duly authorized person and that the so-called contract contained an arbitration clause.
It may also be noted that thereafter on 29-11-1999 written statement was also filed by respondent No,1.
4. Vide order, dated 11-12-1999, the learned trial Court rejected the plaint on the sole ground that according to the admitted document (the pro forma invoice) Annexure 'G' to the plaint, the dispute between the parties is to be settled through arbitration.
5. The learned counsel for the appellant contends that the plaint could not have been rejected on the basis of the arbitration clause in the contract, and therefore, the impugned order is plainly unsustainable.
6. On the other hand, the learned counsel for the respondent No,1 have submitted that the plaint has rightly been rejected. They further contended that the documents produced by the plaintiff with the plaint, even if accepted on their face value, do not constitute a concluded contract and, therefore, the plaintiff-appellant had no cause of action. They further asserted that they could defend the impugned order on the ground other than the ground on which it is based. They canvassed that this Court was competent to reject the plaint on the ground other than the one on which the judgment of the learned Trial Court is based.
7. We have considered the submissions made by the learned counsel for the parties. As far as the rejection of the plaint on the ground that the contract contained an arbitration clause is concerned, it is unsustainable. The effect of an arbitration clause in an agreement is that the defendant can claim stay of the proceedings in the suit under section 34 of the Arbitration Act. It appears that the learned trial Court was totally unmindful of the aforesaid provisions. In fact, the learned counsel appearing for respondent No,1 did not defend the impugned judgment on the particular reasons
8. A perusal of the impugned judgment shows that the ground to reject the plaint is that the plaintiff-appellant had no cause of action and the reason in support thereof, was the arbitration clause, The learned counsel for respondent No,1 canvassed that the reason for holding that the plaintiff-appellant had no cause of action should be substituted by this Court with the reason that there was no concluded contract between the parties. This is seriously contested by the learned counsel for the appellant. He contends that if the ground to reject the plaint is found to be unsustainable, the plaint cannot be rejected on any other ground by this Court
9. The learned trial Court has not specifically dealt with this aspect of the case i,e, the existence of a concluded contract, or other vise but observed as follows about the pro forma invoice:-- "About pro forma invoice it is observed that from the record as produced on the file it reveals that it is the valid document which indicates the terms and condition as allegedly settled between the parties. Therefore, the objection of the petitioner about authorised agent and pro forma invoice is hereby rejected."
10. The first question that attracted our attention was whether a Court of appeal could substitute a reason for rejection of the plaint with another reason. Our answer is in the affirmative because appeal is continuation of the suit and under section 107 of the Code of Civil Procedure the Court of appeal has all the power which are vested in the trial Court. This power is adequately supplemented by the provisions of rule 33 of Order XLI of the Code of Civil Procedure. We may also refer to Vithoba Yadeo v. Suryobhan and another (1924 Nagpur 80). In the said precedent case the plaint was rejected on the ground of insufficiency of the court-fee. This was reversed by the learned first appellate Court but the plaint was rejected on the ground of limitation. This was upheld by this Court. We, therefore, proceed to consider the submission of the learned counsel for the respondent No,1 that the plaint was liable to rejection for the reason that there did not exit any concluded contract between the parties.
11. The precise submission of the learned counsel for respondent No,1 is that the offer of the appellant was contained in the pro forma invoice (Annexture G to the plaint) according to which the price quoted by the appellant was 202 U.S. Dollars per Metric Ton. This pro forma invoice carries a note of acceptance in the following words; "Received and accepted by U.S. Dollar 200/M. Ton C&F Karachi."
' This note also bears the stamp of respondent No, 1 . According to the learned counsel for respondent No, 1 . The plaintiff had offered to supply the goods at the rate of U.S. Dollar 202 per metric ton and the acceptance (even if proved to have been recorded by a duly authorised person on behalf of respondent No,1) at the rate of 200 U.S. Dollars per metric ton was a counter-offer and unless it was shown that this counter-offer was accepted by the plaintiff-appellant, a concluded contract did not come into existence. This' is disputed by the learned counsel for the plaintiff on the basis of letter, dated 20-8-1999 (Annexture ' H ' to the plaint).
12. We are not persuaded to agree with this contention at this stage. The plaintiff has alleged a concluded contract and its breach and he is entitled to an opportunity to prove his case. The plaintiff is relying on a number of documents, interpretation of which particularly the letter, dated 20-8-1999, of the plaintiff will be required in the light of the evidence produced on the record to find out whether there has been a concluded contract between the parties. This question cannot be determined summarily as canvassed by the learned counsel for respondent No,1.
13. We may now attend to the miscellaneous application pending disposal. Through C.M. 1/C of 2000 filed under Rule 10 of Order XLI of the Code of Civil Procedure, respondent No,1 seeks a direction to the plaintiff-appellant for furnishing secuity for the costs of the appeal and the suit.
Since the appeal is being disposed of by us and the case is being remanded to the learned trial Court, no order on this application is called for respondent No,1 will be at liberty to move the learned trial Court under rule 1 of Order XXV of the Code of Civil Procedure.
14. C.M. No,2/C of 2000 and 124/C of 2000 have also been moved by respondent No,1 for recalling the order, dated 23-12-1999 directing release of goods to respondent No,11 on furnishing third party security for the suit amount. It may be noted that vide order, dated 28-11-1999, the learned trial Court had directed that the disputed quantity of the fertilizer i,e, 5700 M.T. Shall not be delivered, sold, or transferred by the defendants. This interim order was extended till 4-12-1999 vide order, dated 29-11-1999 of the learned trial Court. However, the plaint was rejected on 11-12-1999 with the result that the said interim injunction ceased to be operative. However, on C.M. 1509 of 1999 moved by the appellant, status quo was directed to be maintained vide order, dated 15-12-1999 passed by this Court. Respondent No,1 moved C.M. No,3 of 1999 for vacation of the order, dated 15-12-1999 on which order, dated 23-12-1999 was passed.
15. The learned counsel for the respondent No,1 contends that a permanent injunction could not be claimed in a suit for damages and to this extent the order of the rejection is perfectly justified and, therefore, no temporary injunction could be granted to restrain respondent No,1 from obtaining delivery of the consignment imported by respondent No,1, without involving the appellant.
Therefore, according to him, the condition of furnishing third party security for release of the goods could not be imposed.
16. There is merit in the contention of the learned counsel for the respondent No, 1 . The consignment in question has undisputedly been imported by respondent No,
1. The plaintiff- appellant did not lay any claim on the goods in question. The appellant is claiming damages for the breach of the contract and in our view, if the appellant is able to establish his case, pecuniary compensation will afford adequate relief. According to clause (c) of section 54 of the Specific Relief Act, a, perpetual injunction is granted "where the invasion is such that pecuniary compensation would not afford adequate relief". Apart from the said provisions, clause (f) of section 56 of the Specific Relief Act, provides that an injunction is to be refused to prevent the breach of the contract the performance of which would not be specifically enforced". We are of a view that by virtue of the illustrations to clause (a) of section 21 of the Specific Relief Act, agreement for sale of goods cannot be specifically enforced. Therefore, the suit to the extent of permanent injunction was not maintainable and no injunctive order could be passed to restrain respondent. No,1 to take the delivery of the goods, in question. We accordingly, recall the order, dated 23-12-1999 to the extent that it imposed a condition of furnishing third party security by respondent No,1 for the release of his goods.
17. For what has been stated above, the impugned order to the extent of suit for permanent injunction is maintained while to the extent of the suit for damages it is set aside. In maintaining the order of rejection partly, we are fortified by the judgment of this Court in Mst. Iqbal Begum v.
Farooq Inayat and others (PLD 1993 Lah. 183). Resultantly, the suit to the extent of damages is remanded to the learned trial Court to be tried and disposed of in accordance with law. No order as to costs.