' This is a suit for declaration, damages, specific performance and permanent injunction filed by the plaintiff in which the following reliefs have been claimed: "(1) Pass judgment and decree against the defendant No,1 for Rs,50,00,000 marl:-up at the rate of 18% peraimu.n as damages.
(2) Dech re that the plaintiff is not required to maintain Let ' Pass DepoL it Account with the defendant No,2 and that the plaintiff may deposit the port dues of the vessels that may arise in their agencies on ship to ship basis on behalf of the masters of the vessels at the time of port clearance under sections 52 and 53 of the Karachi Port Trust Act, 1886.
(3) Declare that the plaintiff as the shipping agent is not liable to pay Port dues of any vessels that may arrive in the agency of the plaintiff and that the plaintiff pay the port dues of the vessel only on behalf of the masters of the vessel under sections 52 and 53 of the Karachi Port Trust Act, 1886.
(4) Declare that not releasing the securities bank guarantees of the plaintiff-Company by the defendant No,1 is illegal.
(5) Direct the defendant No,1 provides the correct account of the plaintiff-Company and allow the plaintiff-Company to handle vessels in the Port of Karachi in accordance with law.
(6) To grant cost of this suit.
(7) Any other relief or relieves being fit or proper may also be granted."
2. The facts of the case, as disclosed in the plaint, are summarized as under:--
(i) That the plaintiff is Custom House Shipping Agent involved in the business relating to the entrance and departure of any vessel that may arrive at Karachi ports in the Agency of the plaintiff.
For that purpose the plaintiff is possessing the Customs House Agency Licence from the Custom Authorities. Under the Karachi Port Trust Act, 1886, the plaintiff submitted the following securities and bank guarantees to the defendant No,1 on account of security of handling vessel at Karachi Port:-- {{DATA MISS ARANGE}} Defence Saving Certificates: No,G862258 to G862267 for Rs,5,000 each Rs,50,000 No, HA 328996 to HA 329000 for Rs,10,000 each Rs,50,000 Bank Guarantee No,691/940106, dated 19 March, 1994 Standard Chartered Bank Rs,200,000 Pay Order No,KG 197984 Standard Chartered Bank Rs, 25,000 Total Rs,325 000
(ii) Subsequently, the plaintiff came to know that there was no such rules for maintaining the L.P.D.
Account with defendant No,
1. The plaintiff also found that due to mismanagement, the port dues paid by the Master of the foreign vessels for the port clearance were wrongly credited in the account of the Agent or other vessels causing unnecessary inconvenience to the plaintiff. It was accordingly decided by the plaintiff to handle all future agency vessels against deposits in cash.
Defendant No,1 was accordingly advised to release/return the above-said securities and bank guarantees.
(iii) According to the averments made in the plaint there was exchange of correspondence between the plaintiff and defendant No,1 and the plaintiff was informed by defendant No,1 that a sum of Rs,5,000 was outstanding against the plaintiff-company. The plaintiff accordingly required defendant No,1 to furnish the details of the account. The plaintiffs were advised to obtain the details from defendant No,2. On demand, defendant No,2 provided detailed statement of account of billing in the L.P.D. Account for the period from 1-2-1996 to 21-4-1998. According to the information received from defendant No,2 a sum of Rs,14,54,142.12 was outstanding against the plaintiff- Company. On having received such information, the plaintiff-Company required defendant No,2 to provide further details which appear to have been provided to them vide letter, dated 10-8-1998 by defendant No,2, the details whereof have been incorporated in para. 14 of the plaint.
(iv) On receiving such details, the plaintiff-Company informed defendant No,1 that all the port dues were paid by the Master of the vessel through the plaintiff and consequent thereof, such Port clearance in respect of the vessels were granted whereupon , the vessels sailed. Regarding the crane charges amounting to Rs,49,701, defendant No,1 was informed that according to the record of plaintiff-Company, they were not liable to pay any crane charges or outer anchorage fees as the plaintiff did not enter any vessel during the year 1997. It was pleaded that port clearance is issued after getting all the, port dues from the Master of vessels and then only the vessels are allowed to sail.
(v) It was pleaded by the plaintiff that wrong entries were made by the office of defendant No,1 or some fraud might have been committed in their account department. However, the dues were shown against the plaintiff either fraudulently or by mistake. It was averred that defendant No,1 has not only failed to provide the account and return the securities and bank guarantees to the plaintiff-Company but even refused to allow the plaintiff-Company to handle the vessels of their company which caused the plaintiff-Company a loss of more than Rs,5 million till the date of filing of the suit and that the plaintiff-Company was loosing interest on the defence saving certificates which were matured and were lying with defendant No,
1. Further that the plaintiff has to pay bank charges and mark-up on the bank guarantees which were retained by defendant No,
1. The plaintiff accordingly, after service of legal notice, dated 17-11-1999, filed the instant, suit. Alongwith the suit an application under Order 39, rules 1 and 2, C.P.C. Was also filed praying therein that defendant No,2 be restrained from refusing to allow the plaintiff-Company to handle the vessel of their agency in the jurisdiction of defendant No,1 as the illegal act of defendant No,1 was causing injury and damages to the plaintiff-Company.
3 Consequent upon service, the defendants have filed written statements. Defendant No,1 in their written statement raised the following preliminary legal objections:-- ""(A) No cause of action has accrued to the plaintiffs against these defendants.
(B) The plaint merits rejection under Order VII, rule 11, C.P.C.
(C) No mandatory notice as required under section 87 of the KPT Act has been served."
4. The defendant No,1 pleaded that the plaintiffs themselves requested the defendant No,1 for Let Pass Deposit Account for timely adjustment of the bills raised by the defendant No,
1. Regarding deposit of securities, it was submitted that it was a 'condition precedent to furnish the securities in order to obtain Let Pass Deposit Account. It was denied that the bills of the plaintiff were wrongly credited in the account of the Agent. It was pleaded that before the closing of L.P.D. Account, the Account Department of defendant No,1 referred the matter to all the other concerned departments.
The Traffic Department of defendant No,2 informed that an amount of Rs,5,000 was outstanding and the position was communicated to the plaintiff. It was further averred that opening of LPD Account was not mandatory and was opened only for convenience purposes and for adjustment of defendant No,1 's bills coming from its various departments which were adjusted on the accounting method called FIFO (First in first out). It was further pleaded that in the case of the plaintiffs, last two Demand Certificates were issued to them by the defendants against their agency vessel, May Prince" and "m.v. Badar" showing a total balance of Rs,15,34,000 as against the outstanding of Rs,14,45,413.85 against their another vessel. "Express-1"
5. That no demand certificate was issued on the assurance of the plaintiff wherein it was specifically mentioned that outstanding amount of "Express-1" will be cleared within ten days. It was also denied that the crane charges of Rs,49,701.83 and outer anchorage charges were not recoverable from the plaintiffs. Further stating that these were the legitimate charges as per the governing law and the plaintiffs are liable to clear the same. The receipt of legal notice was not disputed, however, the contents of the same were denied. It was further submitted that the plaintiffs were not entitled to any relief and the suit was liable to be dismissed.
6. In the written statement filed by defendant No,2, it was pleaded that the plaintiff-Company was maintaining a L.P.D. Account with them since 13-10-1986. Defendant No,2. Denied having issued any sort of guarantee on behalf of the plaintiff. It was further pleaded that defendant No,2 informed the plaintiff regarding bills of Rs, 14,54,142.12 vide letter, dated 10-8-1999. It was further stated that defendant No,2 has supplied complete details available with them to the plaintiff. The rest of the allegations were denied for want of knowledge or being not relevant to defendant No,2.
7. The matter was fixed for hearing of application under Order 39, rules 1 and 2, C.P.C. And settlement of issues.
8. I have heard Mr. Agha Faqir Muhammad, learned counsel appearing for the plaintiff and Mr. Salman Hamid, learned counsel for defendant No, 1 . Learned counsel for defendant No,2 chose to remain absent without any intimation.
9. It was contended by the learned counsel for the plaintiff that the defendants have refused to allow the plaintiff-Company to handle the vessel in their agency and that they were not supplied the correct details of the accounts. It was further alleged that the defendants were not returning the securities and bank guarantees to the plaintiff. The above acts of defendant No,1 have seriously prejudiced the plaintiff and the plaintiff has suffered considerable damages. He submits that unless ad interim orders are passed, the plaintiff shall suffer irreparable loss.
10. On the other hand, learned counsel appearing for defendant No,2 contended that prayer clause reveals that the plaintiff was seeking negative declarations which were not warranted in the circumstances of the case. He submitted that the suit itself was not maintainable and the plaint was liable to be rejected being without cause of action. He further urged that the- relief claimed for interim injunction was beyond the pleadings appearing in the plaint itself.
11. I have considered the contentions raised by the learned counsel for the parties and have minutely perused the plaint and the written statement filed in the suit.
12. At the outset it will be advantageous to state that in the case of Alavi Sons Ltd. PLD 1968 Karachi 222 it was, inter alia, held that according to section 42 of the Specific Relief Act a plaintiff can approach the Court for declaratory relief in respect of his legal status and character for which reliance was placed on 15 different definitions as enumerated by Professor Holland.
13. On perusal, it transpires from the title of the plaint that it is a suit for declaration, damages; specific performance and permanent injunction. The prayer clause does not show that injunction of any sort has been sought by the plaintiff. Prayers No,2 and 3 are in negative form seeking the declaration that the plaintiff was not required to maintain Let Pass Deposit Account with defendant No,2, and is not liable to pay port dues of any vessel that may arrive in the agency of the plaintiff.
Declaration in negative form was seldoh, granted and that too in rare and special circumstances.
In the present case the plaintiff has not disclosed any special and exceptional circumstances for grant of such declarations. For reference see case of Abdul Rehman Mobeshir reported in PLD 1978 Lahore 113 and Messrs Karsaz Construction Company v. Pakistan reported in 1999 CLC 1719.
14. It has been clearly mentioned in the written statement filed by defendant No,1 that it was not mandatory to maintain Let Pass Deposit Account but the same was opened for the convenience of the plaintiff and at his request. For maintaining Let Pass Deposit Account, it was a condition precedent to furnish securities. The plaintiff maintained that account for his own convenience.
15. It may not be out of place to mention here that section 52 of the Karachi Port Trust Act provides for a procedure for taking action on account of non-payment of any tolls, dues, rates, charges or penalties. Similarly section 53 requires that the clearance shall not be granted till the rates and fees are paid. It is well-settled that where a statute provides a mechanism for remedy, resort must be had to that remedy. Reference can be made to Abul Ala Maududi's case reported in PLD 1964 SC 673, Mushtaq Hussain Shah's case reported in PLD 1978 Karachi 612 and Pakistan International Airline's case reported in PLD 1979 Karachi 640.
16. The plain reading of plaint makes it abundantly clear that no details have been mentioned in the body of the plaint with regard to the specific performance sought to be enforced by the plaintiff. Likewise, no details of the damages allegedly suffered by the plaintiff have been provided in the body of the plaint. Since the declarations which are being sought by the' plaintiff are in negative form, the same could not be granted to the plaintiffs in the circumstances. The prayer made in the interlocutory application is beyond the prayers mentioned in the suit itself.
' In the circumstances, I am of the firm view that the plaintiff has no cause of action and the plaint being devoid of cause of action, is liable to be rejected. It was held in PLD 1967 Dacca 190 (Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others) as under:-- "It is a necessary incidence in the trial of judicial issues that a suit which is, on the face of it, incompetent, not because of any formal, technical or curable defect but because of an express or implied embargo imposed upon it by or under law, should not be allowed to further encumber legal proceedings. Order VII, rule 11, of the Code of Civil Procedure is obviously directed towards that end and is not exhaustive."
' Similar view was taken by the Honourable Supreme Court in the case of Muhammad Akhtar reported in 1981 SCMR 878. In 1988 SCMR 824 (Nazeer Ahmed and others v. Ghulam Mehdi and others), it was held that upsetting the order of the Court below merely for the reason that the Court was not competent to look outside the averments made in the plaint would amount to merely pressing a technicality.
' In 2002 SCMR 338 (S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan) it was observed by the Honourable Supreme Court as under:-- "It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. ' The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes."
In the view of the matter, the plaint in the suit was rejected along with C.M.A. No,2005 of 2001 by a short order, dated 18-3-2002. Above are the reasons for the said short order.
Plaint rejected.