1. ' This is an application under Order XXXIX, rules 1 and 2, C.P.C., whereby it has been prayed by the plaintiffs that the defendants be restrained from selling the suit property (2356 tons of fertilizer) to any third party or creating any interest therein to the exclusion of the plaintiff.
2. ' The brief facts of the matter according to the plaintiff are that he is an authorized dealer of the defendant No,1 per the agreement between the parties dated 29-10-1999, which was to remain in force up till 23-9-2000. A copy of the said agreement has been filed alongwith the affidavit-in- rejoinder to the afore-mentioned application. In pursuance of such agreement, the plaintiff, vide letter, dated 28-10-2000, offered to purchase the entire suit property at the rate of Rs,519 per bag of 50 Kgs., which was accepted, vide the defendant No, 1's letter, dated 4-12-2000 with a further condition that a pay order should be submitted for the required amount. This was followed by a reminder dated 5-12-2000 couched in the same terms. Earlier the plaintiff had furnished a security deposit of Rs,5,00,000 vide letter dated 4-11-2000 and also requested that a delivery order for the fertilizer be issued vide letter, dated 25-11-2000. Copies of the aforementioned correspondence have been filed as Annexures P.1 to P.6 to the plaint. Thereafter, the defendant No,1 issued a further reminder dated 20-12-2000 to the plaintiff for upliftment of the entire quantity upon submission of a pay order, in response to which the plaintiff deposited a further amount of Rs,1 million on 16-2- 2001 and repeated its demand for issuance of a delivery order for the amount of fertilizer proportionate to the deposited amount. Copies of the foregoing letters have been filed as Annexures P.3, P.10 and P.15 to the plaint. The defendant No,1 having failed to do the needful a legal notice was issued by the plaintiffs advocate enjoining the defendant No,1 to perform the agreement in question. Such legal notice was issued on 16th April, 2001 alongwith a reminder, dated May 2, 2001. Instead of doing the needful the defendant No,1 had, vide letter, dated 24-4-2001, surprisingly asked the plaintiff to quote his best/fresh price for the entire quantity of the suit property. Copies of the aforementioned correspondence have been filed as Annexures P.16, P.17 and P.18 to the plaint. Hence, the suit with a prayer for specific performance of the agreement between the parties as well as for the grant of permanent injunction restraining the defendants from selling the suit property to anyone else except the plaintiff. Damages in the sum of Rs,11 lacs have also been prayed for alongwith the costs of the suit.
3. ' In the written statement filed by the defendants certain preliminary objections have been raised viz. That the suit is not maintainable as no cause of action has arisen to the plaintiff for filing the same. On merits it has been admitted by the defendants that they had accepted the offer of the plaintiff to uplift the suit property at the rate of Rs,519 per bag of 50 Kgs., vide plaintiffs offer contained in his letter, dated 28-10-2000. However, it is the further case of the defendants that such acceptance was conditioned on the premises that the entire quantity should be uplifted for which a pay order was to be submitted by the plaintiff, which he failed to do despite frequent reminders by the defendants. Accordingly, it has been alleged in the written statement that losses were incurred by the defendants as the suit property remained stuck up at the port for which excessive port charges etc. Had to be paid. Consequently, the defendants have fully supported their letter dated 24-4-2001 whereby the plaintiff was asked to quote a better price in order to compensate the defendants for the excessive port Charges etc., which they had to incur. It has, however, been admitted in the written statement that suit property valued at Rs,1 million was delivered to the plaintiff by the defendants. On the basis of the foregoing averments, it has consequently been maintained by the defendants that the suit has been filed with mala fide intent in order to pressurize the defendants to accede to the plaintiff's demands and hence the same deserves to be dismissed.
4. ' Substantially the same averments have been made by the parties in the application at hand by way of affidavit, counter-affidavit and rejoinder.
5. ' On the basis of the foregoing facts learned counsel for the plaintiff has stressed that although initially the agreement between the parties may have been for the upliftment of the entire quantity of the suit property but the same stood altered/novated in view of the fact that the defendants accepted part payment in the amount of Rs,1 million and delivered the proportionate quantity of the suit property to the plaintiff. Hence, per learned counsel, once the agreement between the parties had so been novated/altered, it was incumbent upon them to act upon the same viz., for the defendants to keep on accepting part payment. Alternatively, it has been submitted by the learned counsel that the plaintiff is willing to pay the balance sales price of the suit property in lump sum at the contracted rate viz. Rs,519 per bag of 50 Kgs. In support of his submissions learned counsel has relied upon section 62 of the Contract Act, which provides that if the parties to a contract agreed to substitute a new contract for it or to rescind or alter it the original contract need not be performed. He has cited H.B.L. v. Sarmast Cooking Oil Ltd. (2000 CLC 1502), Industrija Masina Traktora v. Bank of Oman Ltd. (1992 M LD 2245) - and Muhammad Umer v. Zakaria Adamji Charitable Corporation (1998 MLD 1131).
6. ' Learned counsel has submitted that per section 20 of the Sale of Goods Act where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of the payment of the price or the time of delivery of the goods, or both, is postponed. Consequently, per learned counsel, as the suit consignment was specifically identifiable and in a deliverable state the property in the same had passed to the plaintiff since the contract between the parties was unconditional having been novated/altered by subsequent conduct of the parties as aforementioned. Hence, only the plaintiff was entitled to the delivery of the goods provided the other terms and conditions of the altered contract were fulfilled by him. In support of this contention learned counsel has relied upon Bodriprasad v. The State (AIR 1966 SC 58), Peayre Lal- Kishan Prasad v. Diwan Singh-Ganeshi Lal (AIR 1930 Allahabad 661), Messrs Araq Ltd., v. Messrs Muhammad Ismail Muhammad Ashraf (PLD 1968 Kar. 686), Punjab Province v. Muhammad Sadiq (PLD 1960 (W.P.) Lah. 1099 and Ghulam Mustafa v. Officer On Special Duty, Federal Land Commission (1984 CLC 824).
7. ' Learned counsel's next contention is that per section 58 of the Sale of Goods Act in any suit for a breach of contract to deliver specific goods the Court may allow the specific performance of the same without giving the defendants the option of retaining the goods on payment of damages. He has cited Messrs Merkurria Sucden v. The Rice Export Corporation of Pakistan (1993 CLC 714) and Saifuddin Khan v. Pak Suzuki Motor Company Limited (1997 CLC 302).
8. ' Finally, learned counsel has cited Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon (1994 SCM R 2189) and Pakistan Railways v. Ittefaq Foundaries (Pvt.) (Ltd.) (1990 SCM R 355) on the issue of temporary injunction viz. Prima facie case, irreparable loss and balance of convenience etc. ' On the other, the learned Standing Counsel Mr. Ziauddin Nasir has submitted, in the first instance, that the suit is not maintainable because money is adequate compensation in terms of section 56(f)(h) and (i) of the Specific Relief Act. On merits learned counsel has submitted that per the agreement between the parties, dated 29-10- 1999, the plaintiff was appointed as a distributor for the defendants' properties products on cash and carry basis or on the basis of deferred payment to be notified by the plaintiff from time to time. Accordingly, the plaintiffs offer, vide letter, dated 28- 10-2000 for the purchase of 2356 tons of the suit property at the rate of Rs,519, per bag of 50 Kgs., was accepted on the basis of full purchase price to be deposited by the plaintiff in advance. As opposed to this, the plaintiffs only deposited a security amount of Rs,5 lacs on 24-11-2000 and demanded a delivery order for the entire quantity but this request was not acceded to by the defendants who insisted upon full payment vide letter, dated 4-12-2000, 5-12-2000 and 20-12- 2000. Again the plaintiff deposited an amount of Rs,10 lacs on 16-2-2001 and on 27-2-2001 he submitted an undertaking to the defendants that he would uplift the entire quantity but again on 28-3-2001 the plaintiff somersaulted and requested for a delivery order against the part payment which he had already made. Thereafter, a legal notice was served upon the defendants on 16-4- 2001 by the plaintiff and then a delivery order was issued for the amount of the suit property corresponding to Rs,10 lacs. Per the learned Standing Counsel, then the agreement between the parties relating to the sale of the suit property at the rate of Rs,519 per bag of 50 Kgs., stood concluded. Consequently a fresh tender was called by the defendants and this was their right.
9. Accordingly per the learned Standing Counsel, the conduct of the plaintiff would display that in spite of frequent reminders etc., he failed to adhere to the original terms of the contract and hence cannot claim specific performance thereof on such terms. Hence, learned Standing Counsel has prayed that the application at hand be dismissed.
10. ' I have heard learned counsel for the plaintiff as well as learned Standing Counsel and my conclusion is as follows: ' It appears that defendant No,1 had floated a tender offering the suit property for sale to the highest bidder, in response to which the plaintiff had put in his bid at the rate of Rs,519 per bag of 50 Kgs. Vide letter, dated 28-10-2000. Subsequently the plaintiff had also sent a pay-order to the defendant No,1 in the sum of Rs,500,000 being the security deposit vide letter, dated 4-11-2000 and on 25-11-2000 he had requested for a delivery order vide letter of the same date. The offer of the plaintiff was accepted vide defendant No,1 letters dated 4-12-2000 and 5-12-2000 whereby he was required to deposit a further amount in the shape of pay-order for taking delivery of the suit property immediately. This was followed by a reminder dated 20-12-2000 whereby again a pay- order for the entire quantity of the suit property was required from the plaintiff. Subsequently on 16- 2-2001 a further amount of Rs,1 Million was deposited by the plaintiff who again requested for a delivery order of the suit property corresponding to the amount. This was followed by reminder dated 27-2-2001 and an undertaking was also enclosed to the effect that he would uplift the entire quantity of the suit property as per the demand of the defendant No, 1 . Again a reminder was issued by the plaintiff to the defendant No,1 on 28-3-2001 for delivery of the part of the suit property with the assurance that upon such delivery payment would be made for further quantities. As the needful was not done by the defendant No,1 a legal notice was issued on 24-4-2001 demanding specific performance of the contract between the parties viz. Sale of the entire quantity at the rate of Rs,519 per bag failing which recourse would be made to be Courts of Law. Thereafter, it appears that the defendants issued a delivery order on 21-4-2001 for 96.330 Metric tons of the suit property having a value of Rs,1 Million. However, it appears that till 7-5-2001 delivery was not made to the plaintiff of this quantity. Meanwhile on 24-4-2001 the defendant No,1 requested the plaintiff to quote his best price for uplifting of the suit property, in response to which another legal notice was issued by the plaintiff on 20-5-2001 demanding withdrawal of the said letter and supply of balance suit property at the contracted rate. Thereafter, the suit was filed on 7-6-2001 for specific performance etc., of the ,contract between the parties.
11. ' From a perusal of the foregoing correspondence it appears, prima facie, that the true contract between the parties was one for upliftment of the entire quantity of the suit property upon advance payment. This conclusion can be borne out from the letter issued by the defendant, dated 20-12- 2000 wherein such demand has been made and the plaintiffs letter, dated 27-2-2001 whereby he had agreed to uplift the entire quantity and also enclosed an undertaking to this effect. Thereafter, further correspondence was exchanged between the parties, which would reveal that the plaintiff did not adhere to this commitment and only deposited a sum of Rs,1 Million on 16-2-2001 and kept on requesting for a delivery order, against this payment. However, it would further be seen that the defendant actually issued a delivery order against this amount of Rs,1 Million on 24-4-2001 but thereafter refused to do so for further quantities and the plaintiff was requested to quote his best price for the suit property on 24-4-2001.
12. In the circumstances in my view the defendants were well within their rights to repudiate the contract between the parties since despite the plaintiffs undertaking etc., he had failed to deposit the entire sale consideration in advance. This conclusion is borne out from the circumstances of the case whereby since no time was fixed for performance of the contract the same should be performed within a reasonable time. This is basically a question of fact and depends on the circumstances of each case including in the case of a commercial contract for the sale of goods, usage of the trade, the nature of goods, place and mode of delivery and where the goods are available with the seller. In this regard reference can be made to D.B. Walker & Co. v. Noor Elahi (PLD 1974 Kar. 50). It is also settled law that in a commercial contract for the sale of specific goods, no time is fixed for performance and the contract is not performed by a party within a reasonable time the other party is not bound to give prior notice to perform the contract within a specific time before treating the contract as revoked and cancelled. (See Binda Prasad Kishori Saran AIR 1929 PC 195).
13. ' In my view in the circumstances of the case where the goods were lying at the port and the defendants were under going heavy demurrage at the port, at the most the contract should have been performed within a week or two or possibly within a month. This, the plaintiff failed to do by not paying the entire sale consideration in advance as agreed. Hence as already observed above the defendants were well within their rights to revoke the contract between the parties.
14. As far as the novation, of the contract is concerned, on the strength of partial delivery against Rs,1 Million it would be seen that the essence of Novation is not the mere dissimilarity of the terms of the old contract and the new one but in the intention of the parties to supersede the old by the new one. Thus, before there can be any novation under section 62 of the Contract Act there should be actual substitution of the old contract by the new one and consequently till the second contract becomes operative the old contract would continue. (See Muhammad Amin v. Star Oil and Ice Mills PLD 1973 Kar. 408).
15. ' In this view of the matter I am not satisfied that a mere partial delivery by the defendant of the suit property would wipe out the undertaking between the parties for full delivery upon payment of the entire consideration in advance. In this regard reference can be made to Safia Khatoon v. Musarrat Shaukat Ali (supra) wherein the Supreme Court has held that mere allegation of novation in the original contract by one of the parties to the contract does not absolve them from their bligation to perform the same as the parties can only be relieved from the performance of the contract if they have mutually substituted the new contract with the original one. In any event in my view, as damages are adequate compensation in the circumstances of the case which the plaintiff could establish when the matter goes to trial, no interim injunction can be issued restraining the defendants from disposing of the suit property to anyone else. In this regard the cases cited by the learned counsel, in my opinion, are not relevant as there a conclusion had been drawn that damages were not adequate compensation as the suit property was one of its kind. However, in the present case the suit property is not so unique or one of its kind so as to give a right to the plaintiff for specific performance.
16. ' Finally as far as section 20 of the Sale of Goods Act upon which learned counsel for the plaintiff has relied upon, it would be seen that the same contemplates passage of title to the buyer when the contract is made provided the same is unconditional. As already observed the present contract between the parties was a conditional one viz. That the entire suit property had to be uplifted by the plaintiff upon payment in advance. Hence section 20 of the Sale of Goods Act would be inapplicable in the circumstances of the case.
17. ' Finally, with regard to section 58 of the Sale of Goods Act upon which the learned counsel for the plaintiff has also relied upon again it would be seen that the same contemplates specific performance of a contract of sale and provides that the Court may allow the same without giving an option to the defendant for retaining the goods on payment of damages. In my view again, in the circumstances of the case section 58 of the said Act is not relevant as it is subject to Chapter 2 of the Specific Relief Act which enumerates the circumstances under which specific relief may be given. As already concluded by myself no case for specific relief is made out by the plaintiff in view of the fact that damages are adequate compensation. In fact as much has been held in the case upon which learned counsel for the plaintiff has relied upon Saifuddin Khan v. Pak Suzuki Motor Co.
18. Ltd. (supra).
19. For the foregoing reasons this application is dismissed.