SAIFUDDIN KHAN Versus PAK SUZUKI MOTORS COMPANY LIMITED

ORDER

The plaintiff has filed this application under section 94, C.P.C. read with section 151, C.P.C. for a mandatory injunction praying that directions may be issued to the Nazir of this Court to collect one Potohar Jeep from the defendant No.l on deposit of balance consideration of Rs.3,57,000. The plaintiff has also expressed his willingness to execute a bank guarantee up to the extent of the difference between the agreed price and the enhanced price.

2. The case of the plaintiff is that on 14th July, 1994 he booked a Potohar Jeep through the defendant No.2 who is the authorised agent of defendant No. l and as a part consideration he paid Rs.25,000. The balance amount of Rs.3,82,000 was to be paid before the delivery of the vehicle. In support of his case, the plaintiff has filed Annexure‑B which is a booking form wherein it was agreed that the delivery of the said Jeep was to be made "tentatively" within six months. That upon failure of the defendants to deliver the said jeep, the plaintiff issued on 2‑1‑1995 a legal notice to the defendant No.2 calling upon him to accept the balance payment and to deliver the said jeep. On 9‑1‑1995 the defendant No.2 replied the said legal notice that the tentative delivery of the new Potohar Jeep is expected in very near future and that by 18th of January it will be delivered. Alongwith this reply of the defendant No.2 they have enclosed a circular dated 6‑8‑1994. In para. 3 of this circular, which is issued by the defendant No. 1, it is mentioned that the jeep shall be delivered on first‑come first‑served basis and that the delivery against present bookings will be effected in about four to six months. In view of the facts, as averred in the plaint, the plaintiff has filed this suit for declaration, injunction and damages with the following reliefs:‑‑

(a) For declaration that the increase in the price of the Potohar Suzuki Jeep by the defendant No. l from Rs.3,82,000 to Rs.4,36,000 is unilateral, arbitrary, mala fide, illegal and without any legal effect and as a consequential relief the same be set aside.

(b) For declaration that the defendant No is liable and bound to and the plaintiff is entitled to take delivery of the Potohar Suzuki Jeep at the price of Rs.3,82,000.

(c) For mandatory injunction directing the defendant No.l, its agents, employees, officers, and/or anyone else claiming or acting under them to deliver physical possession of the Potohar Suzuki Jeep to the plaintiff at the price of Rs.3,82,000.

(d) Award damages sustained by the plaintiff Q. Rs.1,00,000 or any other/greater value as may be fined by this honourable Court.

3. The defendant No. l has denied the allegation of the plaintiff that due to mala fides they have not delivered the said jeep. They have stated that the booking was accepted on the condition that the delivery was to be made on first-come‑first‑served‑basis, and the period of six months as given in the booking order was tentative. The same plea was adopted by the defendant No. l in their written statement. However, it would be pertinent to observe that although the defendant No. l has raised legal objections as to the maintainability of the suit but has not specifically denied the contents of para.2 of the plaint through its written‑statement. The defendant No.2 has not contested this case.

4. I have heard Mr. M.L. Shahani, learned counsel for the plaintiff and Mr. Muhammad Maqsood, learned counsel for the defendant No. 1. Mr. Shahani has contended that the defendants are under legal and moral obligation to deliver the jeep within the maximum period of six months from the date of booking and that the required period for delivery expired on 13th January, 1995. He has further stated that out of mala fides the defendants have not delivered this jeep despite the fact that they have ready stock available with them. He has referred to this Court's order dated 20‑12‑1995 whereby this Court in order to ascertain the admitted fact of para. 2 of the plaint directed the defendant No. l to make the concerned officer available for ascertaining the nature of deliveries made. to the various customers. Mr. Shahani has stated that thereafter on 24‑12‑1995, on 3‑1‑1996 and even today the defendant has not produced such Officer and that this Court is now entitled to draw an adverse inference against the defendants. He has invited my attention to several Annexures filed with the plaint in support of his case.

5. Mr. Muhammad Maqsood, learned counsel for the defendant No. l has raised objections on the maintainability of this suit and in support of his contention he has referred to section 57 of the Sale of Goods Act, 1930 (hereinafter referred, as the Act 1930) and section 21(a) of the Specific Relief Act. He has also referred to the words "tentative" and "provisional" used in booking form Annexure‑B and has contended that it was never meant by the defendant No. l that the jeep would be delivered under all circumstances within six months. On the question of enhancement of price, he has argued that it was provisionally fixed and that the defendant No. l is entitled in law and equity to finally determine the price which is to be fixed according to the date of delivery. Mr. Maqsood has strenuously contended that the application which has been filed under sections 94 and 151 of the C.P.C. is not maintainable as the plaintiff is seeking relief of mandatory injunction through this supplementary provision of law. He has cited the cases of Messrs Abdul Razzak & Company v. Assistant Collector of Customs (Appraisement), Karachi (PLD 1993 Karachi 227) and the case of Muhammad Raza v. Haji Abdul Ghaffar and 6 others (PLD 1992 Karachi 17).

6. The reliefs sought by the plaintiff through the present application are in the nature of mandatory injunction which is provided under section 55 of the Specific Relief Act, 1877 as well as in Order XXXIX, Rule 10, C.P.C. This section provides discretionary powers to the Court to grant an injunction which the Court is capable of enforcing in order to prevent breach of an obligation and when it is necessary to compel the performance of certain acts. There is no other provision available in the Civil Procedure Code, 1908 for granting a mandatory injunction. The Courts have granted such relief after resorting to the provisions of section 151, C.P.C. However, this Court has considered application of sections 94 and 151, C.P.C. in the case of Mst. Salina Jawaid and 3 others v. S.M. Arshad and 7 others (PLD 1983 Karachi 303) where one of the questions involved was grant of injunction as well as appointment of receiver in a suit where minors were also party. In this reported case, it was held by this Court as follows:‑‑

"...It is not possible and I also do not consider it prudent to specify or identify the various situations or reasons, where or when the Courts will exercise their inherent powers under section 94 or section 151, C.P.C. for granting a temporary injunction or appointing a receiver. In each case the Court evaluates the overall situation considering the peculiar facts and circumstances on record and then the decision is taken whether in the interests of justice inherent powers are to be exercised or not. Each case has its own different set of facts and again and again new situations come before the Courts and, therefore, I may repeat, it is not possible to lay down specific principles restricting the power of Courts to exercise their inherent, jurisdiction in certain specified situations or for certain reasons only. If this were done, it would only impede the administration of justice and restrict the development of law. "

7. The above view as held in the case of Mst. Salina Jawaid (supra) was approved by a Division Bench of this Court comprising of Mr. Ajmal Mian and Mr. Mukhtar Ahmed Junejo, JJ, (as their lordships then were) where it was held "that in .a fit case the Court may grant interim injunction even if the case does not fall within the four corners of the well‑settled principle under Order XXXIX, Rules 1 and 2, C.P.C. if the facts of the case so demand, C in order to foster the cause of justice". (Balgamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and 2 others PLD 1990 Karachi 1). The cases cited by Mr. Muhammad Maqsood are not relevant as in the case of Muhammad Raza the question, of breach of contract and damages was involved. In the present case, the defendants have neither denied to deliver the Potohar Jeep nor have pleaded breach of contract. The case of the defendants is that they are prepared to deliver the said jeep but on a date as convenient to them and on payment of market price as determined by them. The rule laid down in the case of Messrs Abdul Razzak & Company is also of no help to the defendant No. i . In the last reported case, it was held by this Court that the material relief in the suit being the relief for the refund of Rs.2,00,000 which was, maintainable, therefore, the relief with regard to the declaration and permanent injunction became redundant in the circumstances of the suit.

8. The word "provisional" has been defined in the Black's Law Dictionary (VIth Edition) as temporary, preliminary, tentative, taken or done by way of precaution or ad interim. In the Ballantine's Law Dictionary (IIIrd Edition) the word "provisional" is defined as that which is merely temporary, or for the time being, for the occasion and as excluding the idea of permanence. In Stroud's Judicial Dictionary, the word "provisional" agreement is defined which may not mean tentative but may mean something which is going to operate until something else happens. To some extent, the word "provisional" and "tentative" are synonymous. Both these words mean something which is temporary and not final. Whenever these words are used in any‑contract, then these words have to be read with reference to the context to such agreement.

9. Mr. Maqsood has relied upon section 57 of the Sale of Goods Act in support of his contention that in the present circumstance, as alleged in the plaint, the plaintiff is entitled for the suit for damages and not entitled to sue for the delivery of the non‑delivered goods. I am not impressed by this argument. This is riot the spirit of Chapter VI of the Act 1930. In my view, under section 57 of the Sale of Goods Act, the buyer is entitled to sue the se? ler for the damages where the seller wrongfully neglects or refuses to deliver the goods. In the present case, the defendants have not denied or neglected to deliver the goods. On the contrary, it appears from their pleadings that they are willing to deliver the same but subject to the conditions as argued hereinabove. There is another provision available in the Act, 1930, which is section 58; and which is reproduced hereunder":‑‑

"58. Specific performance.‑‑Subject to the provisions of Chapter II of the Specific Relief Act, 1877, in any suit for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, on the application of the plaintiff, by its decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The decree may be unconditional, or upon such terms and conditions as to damages, payment of the price or otherwise as the Court may deem just, and the application of the plaintiff may be made at any time before the decree."

The above‑quoted provision of the Sale of Goods Act, 1930 empowers a Court in a suit for breach of contract on an application filed by the plaintiff, to deliver specific or ascertained goods and direct the performance of the contract subject to the provisions of Chapter II of the Specific Relief Act. Section 58 of the Act, 1930 further empowers the Court to pass a decree unconditional or upon such terms and conditions as to damages while passing order on the application of the plaintiff which can be made at any time before the decree. In my view, such order can be passed even prior to passing final decree. This provision of law‑clearly provides a remedy to the buyer in cases of breach of contract where the goods to be delivered are specific and ascertainable. I am also mindful of provisions of Chapter II of the Specific Relief Act which provides specific relief to a plaintiff when monetary compensation is not an adequate relief.

10. In terms of section 9, subsection (1) of Sale of Goods Act, a party can fix price in the contract as in this case and as stated by the defendant No. l the said price is tentative or finally not agreed even then same can be determined under subsection (2) of section 9 of the Sale of Goods Act. It is not the case of the defendants that price cannot be determined. However, finding on this controversy can be reached after recording the evidence of the parties. In the case of Hoadly v. M'Laine (1834) RR 510(514), it was held that when the contract is silent as to the method by which price is to be determined an agreement to pay a reasonable price will be implied. Reasonable price is a question of fact to be determined according to the circumstances of each case, where goods are such that there is a market price for them, the market price will be evidence of what is a reasonable price between the parties, though not conclusive, as accidental circumstances may make the current price unreasonable in the particular transaction (Acebal v. Levy (1834) 38 RR 469).

11. It may be mentioned here that it is not the case of the defendant that car agreed to be sold is not ascertainable or that the price for which it is to be delivered cannot be determined. The car is to be delivered on first‑come‑first-served basis and is certainly ascertainable. They also do not argue that they cannot deliver the car to the Plaintiff. They knave opposed the application on the only ground that no time was fixed for delivery of car and that the price fixed was tentative.

12. It appears from the agreement between the parties that time period for delivery of car is mentioned in the agreement. The delivery of the car in any case is to be made to the buyer by the seller. It must be done either at the appointed time and if no time is fixed then within reasonable period as required under section 36(2) of the Sale of Goods Act which lays down that:

"Section 36(2).‑‑Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. "

In the instant case, since the plaintiff himself is asking for delivery of car after expiry of a period which can be treated as reasonable, therefore, considering the circumstances, the defendant No. l cannot refuse his request that no time for delivery is fixed when the circumstances of the case suggest that cars were delivered to others in preference to the plaintiff without any justification. Finally, one cannot ignore the fact that the defendant No. l is the only company which produces cars of the description in Pakistan and it is not possible to get such car from any other manufacturer which further justifies the claim of the plaintiff for specific performance against the defendants.

13. Here, it would be advantageous to refer the case of Adamjee Paper and Board Mills Limited v. Maritime Agencies (1984 CLC 440) where a learned Single Judge of this Court Mr. Zaffar Hussain Mirza, J. (as his lordship then was), after referring to the provisions of Order XXXIX, Rule 10, C.P.C. and to section 94 of the C.P.C., held that such interlocutory orders ought to be made by the Court when it is "just or convenient". In this reported case, the plaintiff placed an order for supply of wood pulp with a supplier in Sweden which were to be shipped from U.S.A. to Pakistan through a Letter of Credit. The plaintiffs alleged that the defendants failed/neglected to issue the delivery order without any justification and therefore they filed a suit for declaration that under the Bill of Lading the defendants are bound to deliver the goods to the plaintiff and with the further prayer for issuance of a mandatory injunction directing the defendants to deliver the goods to the plaintiff after realising usual port and custom dues. Alongwith the suit, the plaintiffs also filed an application with the similar prayers as of the instant application in the present case In view of the facts alleged in the reported case, this Court passed the following order"‑‑

"The next question, therefore, in the present case is whether the interlocutory order for direction to deliver the goods to the plaintiffs is necessary for the protection of some rights of the plaintiffs. The glaring fact is that the goods were imported by‑ the plaintiffs for use as industrial raw material in their paper manufacturing factory. It is, also true that there are very few paper mills in the country and that there is shortage of paper. In these circumstances the anxiety and the urgency shown by the plaintiffs to obtain the consignment at the earliest is patently understandable-----------------

-----------------In this view of the matter I have come to the conclusion that the plaintiffs have made out a strong prima facie case and a special equity in their favour for interlocutory relief. Having regard to the circumstances of this case, as discussed above, I am clearly of the opinion that it would be just and convenient to order delivery of the goods by the defendants to the plaintiffs. But in order to protect the rights of the defendants the plaintiffs must be required to furnish a bank guarantee for an amount of Rs. 11 lacs to be applied to the payment of the amount found due and payable by the plaintiffs to the defendants on the decision of this suit. "

14. No doubt against the column "tentative delivery period" in Annexure‑B, the words "six months" have been mentioned which have not been denied by both the parties. From the date of booking till filing of the suit (September, 1995) 14 ‑months have passed and there is no plausible explanation or reason given by the defendants for such delay. In my view; the term "tentative period of six months" may justify the defendant No. l to extend the period of delivery from six months to seven, eight or nine months but this does not empower the seller to extend the delivery up to an indefinite period without assigning lawful reason or justification. The same principle is attracted while interpreting the word "provisional". Here also the defendants are liable under the law to give some good and plausible explanation for enhancement of price. In view of the above discussion of facts and law, I am of the view that the plaintiff has made out a case for the relief as prayed in the application. Accordingly, this application is granted in the following terms:‑

(i) That the plaintiff is directed to deposit the balance sale consideration of Potohar Jeep amounting to Rs.3,57,000 with the Nazir of this Court within one month.

(ii) That the plaintiff shall also execute a bank guarantee within a week for a sum of Rs.54,000 with 14 % mark‑up to the satisfaction of the Nazir of this Court with the condition to deposit the said sum as mentioned in the guarantee with this Court, in case if his claim in the suit is dismissed, to be paid to the defendant No: 1 if found entitled.

(iii) After compliance of the conditions (i) and (ii) the Nazir of this Court will collect the Suzuki Potohar Jeep of white colour and as of same qualification and specification as mentioned in Annexure‑B to the plaint from the defendants and shall deliver the same to the plaintiff.

(iv) The defendant No. l shall be entitled to withdraw the amount as mentioned in term (i) above without prejudice to their defence.

(v) In view of the peculiar circumstances of this case, I direct the office to' fix this suit for regular hearing within six months after framing of issues.

15. With the above observations, this application is hereby granted and stands disposed of.

A.A/S‑51/K Application accepted