(C. M. A. No. 2466 of 1978)
This is an application under Order XXXVIII, rule 5, C. P. C., whereby the plaintiff' has prayed that the movable articles mentioned in the Schedule be attached before judgment. In support of the above application the plaintiff in paras. 3 and 4 of the affidavit has asserted that the 'defendant is a foreign business organization and is reported to be winding up its business in Pakistan and that the defendant is selling its property and also transferring its property to Europe and that the one Pontoon on which the machinery of the plaintiff was fixed has been sold by the defendant to Messrs De Meyer Zelzate.
2. The facts leading to the filing of the above application are that the plaintiff has filed the above suit for the recovery of Rs. 63,175, against the defendant being the amount of alleged damages suffered by the plaintiff because of the delay in arranging the shifting of the machinery and equipments to the share belonging to the plaintiff brought by the plaintiff in. Connection with the execution of boring work entrusted by the defendant to the plaintiff in respect of the Port Qasim as a sub-contractor. In the above suit the plaintiff has claimed damages at the rate of Rs. 1,315 per day for the period commencing from 16-4-1978 to 3-5-1978.
3. Though the above application was filed on 1-6-19 ' 8 along with the suit but no attachment order was passed thereon till 9-5-1978: When the above application came up for hearing my learned brother S. A. Nusrat, J., passed a prohibitory order, on the plaintiff's above application. It may be mentioned that the learned counsel for the defendant was not present on 9-9-78 when the above application was taken. However, on 27-9-1978, the defendant filed an application under Order XXXVIII, rules 6 and 9 read with section 151, C. P. C. (being Misc. Application No. 3730/78) praying therein that the ex parte prohibitory order be recalled and/or be vacated. The above application was put up for orders before my learned brother Zaffar Hussain Mirza, J. On 1-10-1918 when his Lordship was pleased to order the recalling of the prohibitory order subject to furnishing of a Bank Guarantee of Rs. 70,000 In compliance with the above order the defendant had furnished the bank guarantee and the articles mentioned in the schedule to the application were exported to the port of origin in Belgium.
4. The defendant's aforesaid application for setting aside ex parte probibitory order dated 9-9-78 (C. M. A. No 3730; 78) came up for hearing before me on 2a-3-79, which was allowed with the consent of the learned counsel for the plaintiff by an order dated 24-3-79 as the learned counsel for the defendant had shown sufficient cause for his absence on 9-9-78. As a result thereof C. M. A.
2446/78 application for attachment before judgment was again fixed for hearing. Since the machinery and equipments were exported against a Bank Guarantee I while setting aside the aforesaid ex parte prohibitory order dated 9-9-78 ordered that the aforesaid Bank Guarantee shall remain intact till the disposal of the aforesaid C. M. A. 2446/78. In other words in case the plaintiff succeeds it making out a case for an attachment before judgment, the aforesaid bank guarantee is to be accepted in lieu of an attachment order. It may be observed that the defendant had also filed a counter-affidavit dated 15-6-1978 to the plaintiff's above application, wherein it was asserted that in pursuance to the verbal negotiations the plaintiff had submitted a quotation for 'piles clean out' at Port Qasim for 40 piles. It was also asserted that the plaintiff completed. The job on 26-3-1978 on 30 piles and abandoned the work on 10 piles. It was also asserted that the defendant had paid a sum of Rs. 56,823 on 3-4-1978 to the plaintiff in full and final settlement of the work. It was further asserted that the plaintiff themselves did not remove the equipments and machinery though were requested several times after 1-4-1978. It was also averred that as a matter of fact that the plaintiff had caused loss to the defendant as their piling rig kees remained idle for 15 days resulting in the loss of, Rs. 15,000 per day. It was also asserted in the aforesaid counter-affidavit that the plaintiff had not made out any case under the provisions of Order XXXVIII, rule 5, C. P. C. As the defendant had not taken or likely to take any action in order to defeat the plaintiff's claim.
5. It may be observed that the plaintiff has not given any detail of the actions/steps allegedly taken by the defendant to defeat the decree if any passed in favour of the plaintiff in supporting affidavit of the application. The only reason which has been mentioned in the supporting affidavit already referred to hereinabove by me was that the defendant being foreigner is reported to be winding up its business in Pakistan and is selling its property and also transferring its property to Europe. It has been urged by the learned counsel for the plaintiff that if the application prayed for will not be granted, the plaintiff will not be able to execute the decree if any passed in their favour in the above suit. It is an admitted position that the defendant is a foreign company and has no assets in Pakistan except the machinery and equipments which were sought to be attached. The question which requires consideration is as to whether merely the fact that the plaintiff will not be able to execute their decree if any passed against the defendant is a sufficient ground to attract the provisions of Order XXXVIII, rule 5, C. P. C. It may be advantageous to reproduce hereinbelow the provisions of Order XXXVIII, rule 5, C. P. C., which reads reads as follows:- "5.-(1). Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defend--ant, within a time to be fixed by it, either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified."
6. It may be noticed that in order to attract the above provisions, it is incumbent on a plaintiff to satisfy the Court by an affidavit or otherwise that the defendant with intent to obstruct or to delay the execution of a decree that may be passed against him either is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. In other words unless a plaintiff proves an intention on the part of the defendant to obstruct or to delay the execution of any decree that may be passed against him, the provisions of rule 5 of Order XXXVIII, are not attracted to. Removal or disposal of property without aforesaid intention is not sufficient to invoke the aforesaid provisions.
In the instant case the plaintiff has not been able to satisfy me that the action of the defendant to export the machinery and equipments was actuated/ prompted with intent to obstruct or to delay the execution of any decree that may be passed against the defendant. It is an admitted position that the defendant is a foreign company having its office in Belgium. The defendant were exporting the machinery and equipments in the ordinary course of business on completion of their contract work in the Port Qasim.
7. It was urged by the learned counsel for the plaintiff that the provi--sions of Order XXXVIII, rule 5, C.
P. C. Are not exhaustive and that this Court is competent to order attachment before judgment even in a case, which does not strictly fall within the ambit of the aforesaid provisions. In support of his above contention the learned counsel has referred to the case of Mohluddin Molla v. The Province of East Pakistan and others (PLD 1962 SC 119) wherein it was held that the Court has inherent jurisdiction to preserve the property of the judgment, debtor in order that it may be available for realization of the decretal amount and that this principle has been recognized in Order XXXVIII, rule 5 of the Civil Procedure Code which empowers the Court to attach the property of the judgment-debtor in order that any decree that is passed in the suit may be satisfied by the sale of the attached property. It was further held if the Court has power to attach the property of a defendant at a time when there is only a possibility of a decree in favour of the plaintiff, it will be anomalous to hold that after he has actually secured a decree the Court cannot act to protect his interest just because the execution of the decree has been postponed. It was also held that the jurisdiction of the Court to attach the property of the defendant truly arises from the fact that the Court has power to grant relief. It may be noticed that in the Supreme Court case the plaintiff had already obtained a decree against the defendant and, therefore, the facts of the above case are distinguishable from the present case.
8. Even if it is to be conceded that rule 5 of Order XXXVIII, C. P. C. Is not exhaustive and the Court is comp.-tent to order attachment even in a case which does not strictly fall within the purview of the above, provision of law, but the question which remains to be considered is as to whether the basic requirement of the above provision, namely, that the Court should be satisfied that the defendant with intent to obstruct or to delay the execution of any decree which may be passed, has taken or is about to take any of the steps specified in clauses (a) and (b) of the aforesaid rule of the aforesaid order. In my view simpliciter the fact that the plaintiff will not be able to execute their decree if any passed in their favour is not sufficient to invoke the provi--sions of Order XXXVIII, rule 5, C. P. C. If the above ground is to be accepted as a sufficient ground to order attachment before judgment, it will cause B hardship to the foreign companies/organisations operating in Pakistan, as it will be open to any person to file a suit against a foreign contractor for an alleged claim on the eve of the winding of affairs in Pakistan on completion of the work, which was entrusted to him in Pakistan, and also to invoke the provisions of the Order XXXVIII, rule 5, C, P. C. On the ground that there would be no asset of the aforesaid foreign contractor to satisfy the decree if any passed in his favour after several years.
9. Mr. Naim, learned counsel for the defendant, has referred to the case of New Bengal Shipping Company v. Erio Lancaster Shipping Company (PLD 1952 Dacca 22) the case of Muhammad Yousuf v. Agha Amir Muhammad (PLD 1976 Kar. 926), the case of Messrs H. Nizanuddin & Sons v. m. v. 'Oroomee' and 4 others (PLD 1977 Kar. 722) and the case of Premraj Mundra v. Muhammad Maneck Ghazi and others (AIR 1975 Cal. 156).
Reverting to the above 1952 Dacca case, it may be observed that Shahabuddin, C. J. (as then his Lordship was) was pleased to hold that the ground that the owner of the vessel has no property in Pakistan and that if the vessel is removed from Chittagong, the appellant would have no means of realising the fruit of the decree which he hopes to obtain in the suit is not a sufficient ground for the purpose of granting an interlocutory injunction prohibiting the vessel from leaving the limits of the Port Chittagong. I respectfully agree with the above exposition of law by his Lordship. In the two Karachi cases it was held that the jurisdiction under rule 5 of Order XXXVIII is to be exercised sparingly and strictly in accordance with the procedure prescribed by the Civil Procedure Code and that the Court should be satisfied that the defendant has disposed of whole or part of his property with intent to obstruct or to delay the execution of any decree which may be passed against him. In the Calcutta case it was held that the Court while con--sidering an application under Order XXXVIII, rule 5, C. P. C. May examine the merits of the case. In my view the plaintiff having failed to prove the intent on the part of the defendant to obstruct or to delay the execution of the decree if any passed in the above suit are not entitled to invoke the provision of Order XXXVIII, rule 5, C. P. C.
10. Mr. Naqvi has also referred to the case of Mian Muhammad Latif v. The Province of West Pakistan (PLD 1970 SC 180) in which it was held that in a case where a temporary injunction is claimed the plaintiff has only to make out that he has a good prima facie case meaning thereby that the serious question is to be tried In the suit. In the above case the question for consideration before their Lordships of the Supreme Court was as to whether the suit was barred under section 11 of the Sind Revenue Jurisdiction Act, and also the question as to whether the impugned order was in nullity in law. In my view the above ruling cannot be pressed into service as the principles of granting an) inerlocutory temporary injunction are different from the principles enunciated under the provisions of Order XXXVIII, rule 5, C. P. C. In any case, it may be observed that the plaintiff's claim relates to an unliquidated amount and not in respect of a liquidated sum. The plaintiff has alleged that the defendant has caused the delay in the removal of the equipments and whereas the defendant has denied the aforesaid allegation. In my view at this stage it cannot be said that the plaintiff are likely to get a decree in respect of their alleged claim. If the plaintiff would have been claiming a liquidated sum like the refund of the security deposit, their case would have been on better footing.
11. Mr. Naqvi, the learned counsel for the plaintiff has also contended that in any case the plaintiff is entitled to the relief prayed for under Order XXXVIII, rule I (b), C. P. C. As the defendant is about to leave Pakistan. In my view the above contention cannot be considered as the plaintiff has not filed an application for arrest before judgment which is provided for in rule I of Order XXXVIII, C. P. C. But their prayer was for attachment under rule 5. Even otherwise in order to attract the provision of the above rule 1 the plaintiff is required to prove that the defendant with intent to delay the plaintiff or to avoid any process of the Court or to obstruct or to delay the execution of any decree that may be passed against him inter alia is about' to leave Pakistan. In the instant case the plaintiff has not been able to, satisfy me that there was any such intention on the part of the defendant.
12. In view of the above discussion I do not find any merit in this application and, therefore, the same is dismissed with no order as to costs.
It is an admitted position that the defendant has already exported the machinery and equipments against the bank guarantee. If I will discharge the Bank guarantee immediately, the plaintiff will not be able to avail of the remedy by way of a petition for leave to the Supreme Court. I, therefore, order that the bank guarantee already furnished by the defendant shall not be discharged for a period of 60 days from the date of this order.