Messrs BALAGAMWALA OIL MILLS vs Messrs SHAKARCHI TRADING A.G., and others

' These are two applications, filed on behalf of the plaintiff under Order 39, Rules 1 and 2 and Order 38, Rule 5, C.P.C., respectively.

2. The case of the plaintiff, according to the averments made in the plaint is that, by indent/agreement; dated 8-10-1988 executed at Karachi, the plaintiff agreed to purchase from the defendant No,1, which is a company registered outside Pakistan, 1,000 metric tons of Chick Peas 29/30 (New Crop 1988) at the rate of US $ 395 per metric ton C & F Karachi. The defendant No,2 is the agent of the defendant No,1 in Pakistan.

3. The plaintiff was granted import licence for the purpose from the Government of Pakistan, dated 12-10-1988.

4. Thereafter, the plaintiff established Letter of Credit for US $ 395,000 through M/s. Muslim Commercial Bank Ltd., Jodia Bazar Branch, Karachi, the last date of shipment and negotiation of documents being 15-11-1988 and 30-11-1988 respectively.

5. The shipment of the goods could not be made by the defendant No,1 within the aforesaid period but the date at the request of the defendant No,1 was extended upto 30-11-1988. The port of shipment of the goods was also altered at the request of the defendant No,1 making it permissible for them to ship the goods from any Mediterranian port.

6. The case of the plaintiff, in short is, that, the defendant No,1 has failed to perform it's part of the contract as the price of the Chicks Peas has increased in the international as well as local markets.

7. Consequently, on account of the breach of contract committed by the defendant No,1 the plaintiff has suffered loss of Rs, 19,42,850.

8. C.M.As. No, 8345/88 and 8396/89 have been filed to restrain the defendants Nos.1 and 3 from remitting the amount of Rs,19,42,850 which is lying with the defendant No,3 outside Pakistan and for attachment of the same. The case of the plaintiff, according to the affidavit filed in support of the above application is, that, the defendant No,1, which is a foreign company, has no assets in Pakistan except the amount in the hands of the defendant No,3 which the defendant No,1 is about to remit outside Pakistan.

9. The case of the defendant No,1, on the other hand, according to the counter-affidavit filed on its behalf, is, that, there was no concluded contract between the parties and if at all there was any contract between them, then the acceptance of the proposal having taken place at Switzerland, the contract was concluded there and in that case, this Court has no jurisdiction to try the present suit. The defendant Not has also alleged making of interpolations by the plaintiff in the indent, a copy of which has been filed by the latter with the present proceedings.

10. During the course of .His arguments, Mr.J.H., Rahmatullah, learned counsel for the defendant No,1 has placed reliance on the following cases : (1) Fazal Din v. Mst. Robeena Aurangzeb and 2 others (1983 CLC 1280), (2) Chairman, Municipal Committee, Taxila v. Muhammad Jan and 4 others (1987 CLC 2416), (3) New Bengal Shipping Company v. Eric Lancaster Stump (PLD 1952 Dacca 22), (4)

Messrs H. Nizam Din & Sons Ltd., Karachi v. m.v. "OROOMEE" and 4 others. (PLD 1977 Kar. 722) and (5)

Associated Drillers Ltd., Karachi v. Messrs Dirk Verstoop B.-v. Karachi (PLD 1979 Kar. 734).

11. In the first case it was held that when for establishing a prima facie case, evidence is to be led, no temporary injunction can be granted. Somewhat similar observations were also made in the second case. In the third case referred to above, it was held that the mere ground that the defendant had no property in Pakistan would not be sufficient for grant of temporary injunction to the plaintiff specially when the plaintiff at the time of the execution of the agreement knew that the defendant had no property in Pakistan. In the next case, reported in PLD 1977 Karachi 722, it was held that attachment before judgment could only be ordered in exceptional cases, only when the conditions prescribed by the law are satisfied. In the case reported in PLD 1979 Karachi 734, the only ground that the defendant was likely to leave Pakistan was held not to be sufficient for invoking of Order 38, rule 5., C.P.C.

12. The principles governing the grant of temporary injunction by the Courts are well known. The first and the foremost requirement in this respect is the establishment of a prima facie case by a party seeking such injunction.

13. Learned counsel for the plaintiff besides relying upon the averments made by the plaintiff in its plaint and different affidavits filed by it, has very heavily relied upon copies of a telex (Annexure J to the plaint) and letter of credit (Annexure P/4 to the plaintiff's affidavit-in-rejoinder), about the genuineness of which there appears to be no controversy. The former was sent by the defendant No,1 for US $ 395,000.00 in respect of the said deal. These documents at this stage of the case do suggest that there was a concluded contract between the plaintiff and the defendant No,1 as alleged by the plaintiff. However, the claim of the plaintiff relates to damages and loss allegedly suffered by the plaintiff owing to the alleged breach of contract committed by the defendant No,1.

Such claim of the plaintiff can only be established by evidence, which is yet to be recorded in the case. In such a case, where no inference cannot be drawn by the Court on the basis of the respective pleadings of the parties, and documents filed by them, the plaintiffs cannot claim to have a prima facie case in its favour. Therefore, temporary injunction in such a case cannot be issued in favour of the plaintiff as was held in 1983 CLC 1280 and 1987 CLC 2316, just referred to above.

14. In the result, C.M.A No,8395/89 is dismissed.

15. As far as C.MA. No,8396/89 is concerned, the same cannot be granted unless the conditions laid down by Rule 5 of Order 38, C.P.C. Are satisfied. The only ground argued by the plaintiff in this application is that the defendant No,1 is a foreign -company and it has no other assets in Pakistan, except those in the hands of defendant No,3. I am afraid the application cannot bt. Granted on this ground alone, more so, on account of the reasons that the plaintiff was already aware that it was dealing with a company which had no assets in Pakistan. It has also been alleged that money lying with the defendant No,3 is being remitted by the defendant No,1 to Switzerland in order to obstruct the execution of any decree which may be passed against the latter, but these allegations have been denied by the defendant No,1 in the counter-affidavit filed on its behalf. There being no other material placed before this Court on the basis of which any inference against the defendant No,1 can be drawn, this application is also liable to be dismissed.

16. In the result, C.M.A. No,8396/89 is also dismissed.