1. ' SHABBIR AHMED, J.---By this common judgment I propose to dispose of the above revision applications as the points of law involved are identical with almost similar admitted facts.
2. ' For the purpose of understanding the controversy in the present revision applications, it would be proper to recapitulate the facts, which are almost admitted and identical.
3. ' Applicant on behalf of respondents Nos.2 and 3 acted as their agent and filed a declaration under section 55 of the Customs Act. Various Consignees imported inedible extra fancy tallow on board the vessels "Globe Nova" and "Globe Express" on different occasions. The consignment was short delivered. The short delivery letter was issued by Karachi Port. Trust. The consignee preferred their claim to the appellant as agent of the carriers. It remained unsettled. Ultimately, the consignee filed a suit for recovery against the applicant and respondents 2 and 3 (Suit No,117 of 1985), whereas, the consignee of short delivered cargo on board "Globe Nova" after getting satisfaction of their claim issued a letter of subrogation to the respondent---Eastern Federal Union Co. Who filed Suit No,1357 of 1987. Both above suits proceeded against the carriers and the applicant. During the proceedings, the respondents Nos.2 and 3 were ordered to be wound up in J.M. No,9 of 1992 and J.M. No,10 of 1992 by order, dated 15-3-1993. It may be mentioned here that the petitioner in above J.Ms. Were none other than the applicant in the present applications. The application under section 316 of the Companies Act was filed before the trial Court as well as Appellate Court, the same were dismissed. The judgment was announced on 20th December, 1995 after the winding up order in Suit No,1357 of 1987 filed by Insurer (Eastern Federal Union Insurance Co.) whereas Suit No,1167 of 1985 filed by the consignee was decreed on 15-4-1992 for a sum of Rs,10,666 and Rs,5,946 respectively.
4. Appeals filed were dismissed by the impugned judgments. Hence the present revision application.
5. ' Mr. Mansoor Ahmed Shaikh, learned counsel for the applicant and Mr. Naeem Ahmed, learned counsel for the respondent No,1 have addressed the Court.
6. ' Learned counsel for the applicant maintained that the carriers were under liquidation and the proceedings without permission of the Company Judge under the provisions of section 316 were not maintainable and the jurisdiction exercised in such eventuality was nullity in the eyes of law and the judgment passed would be beyond the jurisdiction. It has been further contended that the appeal being continuation of the suit and the decision of the appeal in absence of the permission would be nullity in law. Learned counsel referred the judgment, dated 22-12-1997 passed by learned Single Bench in Revision Application No,109 of 1997 (Messrs Mackninon Makenzai v. E.F.U. And others) wherein for want of permission under section 316 of the Ordinance, 1984, the revision application was allowed and the respondents were directed to file their claim before the Liquidator. The observations made by the learned Single Judge has been referred to by the learned counsel, which are as follows:--- "The admitted position is that the principal debtor has been ordered to be wound up under the Companies Ordinance, 1984. Official Liquidator has been appointed, the present applicants having co-extensive liability and not personal liability, therefore, under the Scheme of Companies Ordinance, 1984, once a company has been wound up by a Court of competent jurisdiction, then all claims in respect of the Company are to be lodged with the Official Liquidator. Such aspect, it seems did not engage the attention of the two lower Courts, though the learned counsel for the applicants had, at the very outset, placed an application under section 316 of the Companies Ordinance, 1984, which had not been dealt in accordance with law."
7. ' Learned counsel for the respondent maintained that the concurrent finding of fact of two Courts below cannot be disturbed by the High Court in revisional jurisdiction under section 115, C.P.C.
8. Unless the Courts below while recording finding of fact have either misread the evidence or have ignored any material piece of evidence on record or finding of fact recorded by two Courts below is perverse. Jurisdiction of High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. Is still narrower and referred the rule laid down in Muhammad Din v. Muhammad Abdullah (PLD 1994 SC 291).
9. ' It was further contended that the liability of the agent is co-extensive, which according to the Oxford Dictionary, means having the same existence in time and place and contended that in spite of the carriers having been wound up by the order of the Court, the liability would be of the applicant in terms of section 55 of the Customs Act. He also contended that the judgment authored by Single Bench on the same point has no binding force over any other Single Judge of the same Court on the same point and referred the view expressed in Mujeed Mughari v. State (PLD 1996 Karachi 397).
10. ' In the present case, the main ground for holding the applicant liable for the claim is that they have given a declaration under section 55(e) of the Customs Act to discharge all liabilities of the vessel, which is adoption of section 64(d) of the repealed Customs Act, 1874. In this regard relevant report is reproduced as follows:--- "Section 55(1)........................................................
11. (a)
12. (b)
13. (c)
(d) the agent, if any, delivers to the appropriate officer a declaration in writing to the effect that he will be liable for any penalty imposed under clause (24) of the Table under subsection (1) of section 156 and furnished security for the discharge of the same;
(e) the agent, if any, delivers to the appropriate officer a declaration in writing to the effect that such agent is answerable for the discharge of all claims for damage or short delivery which may be established by the owner of any goods comprised in the import cargo in respect of such goods.
(2) An agent delivering a declaration under clause (d) of subsection (1) shall be liable to all penalties which might be imposed on the person in-charge of such conveyance under clause (24) of the Table under subsection (1) of section 156 and an agent delivering a declaration under clause
(e) of subsection (1) shall be bound to discharge all claims referred to in such declaration."
14. ' To obtain port clearance besides other formalities the ship agent has to file declaration in writing undertaking to pay any penalty imposed under clause (24) of the Table under section 156(1) of the Act (not the case of either party). The agent is also required to give a further declaration in writing holding himself answerable for the discharge of all claims for damages or short delivery which may be proved by owner of the import cargo. The agent can incorporate both undertakings specified in section 55(d)(e) in one declaration, even he can file one general and continuing declaration in respect of vessel of his principal. Reference can be made to Messrs Pakistan Industrial Chains Co. v. American Oriental Lines, New York and others (PLD 1968 Karachi 89).
15. ' The declaration of the applicant as agent of the carrier, in writing holding themselves answerable for the discharge of all the claims for damage of short delivery to owner of the import cargo is not disputed. The declaration has been produced as Exh. P.1. The short delivery is also not disputed.
16. ' The effect of the declaration under section 55(d)(e) has been specified under section 55(2) of the Act. The agent will be liable to pay all the penalties specified above and shall also be liable to satisfy the claim relating to short delivery or damage to import cargo in terms of declaration.
17. However, such satisfaction of the claim is subject to the condition specified in section 55(1)(e) of the Act that agents liability will arise only after the damages or short delivery is established. The agent's liability is not independent of his principal. It is co-extensive with the carrier and unless the claim is admitted, before holding agent liable the claimant should establish his claim for damages or short delivery against carrier. In this regard reference can be made to Crescent Sugar Mills and Distilary Ltd. v. American Export Isbrandt Inc. (PLD 1983 Karachi 29).
18. ' In Barjorjee Cawasji v. Habib Insurance Co. (PLD 1975 Karachi 194), wherein after interpreting the repealed section 64(b) it was held that a ship agent is not personally liable on his declaration given under section 64(d) of the Act before the claim is established against carrier,In the present case it is admitted that the carrier Principal debtor has been ordered to be wound up under the Companies Ordinance, official liquidator having been appointed, The applicant having co- extensive liability and no personal liability, proceedings against the Principal in absence of the permission under section 316 of the Ordinance cannot be maintained. No step could have been taken without permission of the Company Judge under section 316. The underlying principle is that property remains vested with company but the liquidator is the trustee for the benefit of all the creditors and therefore, one creditor cannot be placed at an advantageous position and permitted to derive the benefit to the exclusion of other creditors. Once the suit and proceedings being not maintainable against the carrier for want of permission, the fact of proved liability against the carrier does not arise to saddle agent with co-extensive liability, which is not independent and personal one. There is no cavil to the proposition reiterated in case of Mohiuddin (supra) referred by learned counsel for the respondent that the revisional jurisdiction cannot be exercised against the concurrent findings of the facts unless the findings are the result of wrong appraisal of the evidence. I am of the view that assumption of jurisdiction, against the law amounts to exercise of the jurisdiction illegally and erroneously, the same would be amenable to the revisional jurisdiction of this Court under section 115 as ruled in Haji Rehmdil v. Province of Baluchistan (1999 SCMR 1060) wherein the revisional jurisdiction exercised by the High Court was approved in a matter where Civil Court in passing the decree bypassed the question of limitation illegally and erroneously, thus travelled beyond the jurisdiction.
19. In the present case both the Courts below have ignored the provisions of section 316 of the Companies Ordinance and proceeded with the case and bypassed the question of law and thus travelled beyond their jurisdiction, which is subject to correction in revisional jurisdiction of this Court. Therefore, the applications are allowed. The judgment and decree of the Courts below are set aside. The respondents are directed to take steps to lodge their claims with the official liquidators in accordance with law. Consequently, the suits filed by the respondents are dismissed.