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Suit No. 228 of 1977, decided on 14th May 1977.

‑‑ O. XXXVIII, r. 5‑Attachment before judgment‑To be ordered in exceptional cases only when conditions prescribed by law satisfied: [Attachment]

It is axiomatic that the attachment under Order XXXVIII, rule 5, C. P. C. cannot be ordered as a matter of course only on the ground that the plaintiffs have a good case at the trial and is to be ordered in exceptional cams only when conditions prescribed by law are satisfied. The applicant must show facts indicating that the defendant is about to dispose of his property or is about to remove it from the local limits of the jurisdiction of the Court, with intent to obstruct or delay the execution of any decree that may be passed against him.

‑‑‑ O. XXXVIII, r. 5‑Attachment before judgment‑Property sought to be attached not owned by defendant‑‑Held, cannot be attached.‑ [Attachment].

Carver on Carriage of Goods by Sea, 10th Edn. 1 Dunlop v. Lambert (1839) 6 Cl. & F 600 ; Abdullah v. Muhammad Mofauddfn P L D 1955 Sind 330; P L D 1958 Lah. 772 and Chamya Devi v. Jairam Das A 1 R 1960 All. 615 ref.

‑‑ O. XXXIX, r. 1 read with O. XXXVIII, r.5‑Temporary injunction Detention of ship in dispute likely to result in greater inconvenience to defendant than in case of refusal to grant injunction‑No case for temporary injunction, held, made out‑‑Prayer by plaintiff that defendant should be called up to furnish security‑‑Cannot be enter tained a9 not having been originally made‑Passing of such order also not justified for failure of plaintiff to bring his case within purview of O. XXXVIII, r. 5.‑[Injunction‑Attachment].

S. M. Haider with Nasrullah Awan for Plaintiffs.

Saleem Akhtar for Defendants Nos. 1 and 2.

Khalid Anwar for Defendant No. 4.

By a short order dated 10‑5‑77 I had dismissed this application for reasons to be recorded later. These are the reasons for the decision.

2. This is a suit filed by Messrs H. Nizam Din & Sons Ltd, who are manufacturers and exporters of tents, for recovery of Re. 3,21,750. 25 for loss of goods shipped for export to Bahrain. Originally the suit was brought under the Admiralty Jurisdiction of this Court but it was ordered by my Lord the Chief Justice on 6‑5‑77 at the request of the plaintiffs' counsel that this case be treated as one on the ordinary original side of this Court as the claim under the Admiralty Jurisdiction did not lie.

3. The first defendant in the suit is the vessel m. v. 'OROOMEE', the second is Captain John Methews, the Master of the aforesaid vessel, the third Mox Palm Ltd, the Charterers of the vessel, the fourth Transworld Shipping Corporation Ltd., who are the local agents for the third defendant, while defendant No. 5 is the Insurance Company with whom the goods were insured.

4. It is the case of the plaintiffs that under a contract of carriage embo died in a Bill of Lading dated 21‑1‑77 issued by defendant No. 4 as agent of defendant No. 3. the plaintiffs shipped to Bahrain from Karachi 50 Military I. P. Tents weighing 400 Lbs. packed in 60 Bundles under specified marks par m. v.'OROOMEE' against the order of Bahrain Defence Forces of the value equal to the claim in suit. It is alleged that in breach of the terms of the Letter of Credit and the Bill of Lading the goods were transhipped to the other vessel of defendants Nos. 2 and 3 known as m, v. 'DESPINA' for delivery at Bahrain. The plaintiffs came to know that the m. v. DESPINA had sailed without discharging the cargo for an unknown destination and it was apprehended that the goods were intended to be jettisoned This infor mation was conveyed to the plaintiffs by defendant No. 4 through lug letter dated 29‑4‑77 which also revealed that the vessel OROOMEE was presently at Karachi Port. Since the goods did not reach the consignee the present claim is made for the value of the goods.

5. Alongwith the plaint the present application was submitted for grant of interlocutory relief by way of temporary injunction to restrain defen dants Nos. 1 to 4 from removing the vessel out of the Port of Karachi and also for an order requiring defendants Nos. 2 to 4 to furnish security in suit amount.

6. Defendant No. 2 has appeared for self and on behalf of defendant No. 1 and filed a counter‑affidavit resisting the request for interlocutory relief. It was disclosed in the counter‑affidavit that the vessel is owned by A. H. Watts & Company Ltd., England and that defendant No. 3 were the time charterers of the said vessel which expired on 17‑2‑77. According to the said defendant the ship was chartered for voyage from Karachi to Daman and was not to call at Bahrain. Despite this defendant No. 4 having this knowledge issued toe Bill of Lading for Bahrain and instructed the Master of the ship to discharge the cargo at Daman for trans‑shipment to Bahrain. However, it is contended that goods were not allowed to be discharged at the aforesaid Port and consequently under instructions of defendant No. 3 the goods were delivered to m. v. DESPINA for trans‑shipment. The defendant No. 2 denies the possession of the goods and also denied that there was any apprehension of the same being jettisoned.

7. Defendant No. 4 was represented by his counsel but has not filed any counter‑affidavit.

8. It was contended by Mr. Saleem Akhtar for the first two defendants that no case for attachment before judgment or temporary injunction was made out. He argued that having regard to the provisions of the Bills of Lading Act, 1856, upon negotiation of the Bill of Lading as is admitted in this case, the property in the goods stands transferred to the consignee and the right of action upon the contract evidenced by the Bill of Lading is vested thereby in him. It therefore follows that the shipper no longer has any rights under the contract. It was also contended that in any case the vessel which has been attached is not the property of any of the defendants and is there fore not liable to be attached under Order XXVI, role 5, C. P. C.

9. Mr. S. M. Haider did not attempt to meet these points except that he questioned the validity of the contention that on the goods having shipped the shipper ceases to have any right in the goods. He referred to passages from Carver on Carriage of Goods by Sea (Xth Edition) where the learned author expressed the opinion that the vesting of the property in the goods will not in all cases be the decisive factor in determining who has the right of action. If a special contract is made with the carrier from which it appears that the shipper was himself the contracting party. he is the person able to sue. In Dunlop v. Lambert ((1839) 6 Cl. & F 600) also the gods had been shipped under a Bill of Lading, by which freight was payable by the shipper, and on a question as to the right of the shipper toque for loss of goods, the House of Lords held that if the consignor made a special contract with the carrier, and the carrier agreed to take the goods for him, the special contract super sedes the necessity of showing the ownership in the goods. In this case the Bill of Lading on its face shows that the freight was prepaid.

10. In view of the above the case is one of first impression so far as this point is concerned. The affect of the provisions of the Bills of Lading Act has yet to be considered. The question is not free from doubt and has yet to be determined by considering what the intention was between transferor and transferee. However, even if it be held that the plaintiffs have a right to sue, the question is whether in the facts and circumstances of this case they are entitled to interim relief.

11. As far as prima facie case is concerned, I must confess that the carrier's conduct as admitted in their affidavit is not very commenable, it was admitted that the consignment was accepted for shipment on board for Bahrain and was trans‑shipped to another vessel allegedly at the instructions of the local agent, in glaring breach of the conditions of Bill of Lading not permitting such trans‑shipment. Although the other vessel in which the goods were discharged also belongs to the same owners/charterers, theca defendants are still not clear about the fate of the goods.

12. It is axiomatic that the attachment under Order XXXVIII. rule 5, C. P. C. cannot be ordered as a matter of course only on the ground that the plaintiffs have a good case at the trial and is to be ordered in exceptional cases only when conditions prescribed by law are satisfied. The applicant must show facts indicating that the defendant is about to dispose of his property or is about to remove it from the local limits of the jurisdiction of the Court with intent to obstruct or delay the execution of any decree that may be passed against him. It was forcefully contended that the vessel had arrived at the Port of Karachi on 4‑4‑77 and is leaving after taking cargo, in normal course of business. The intention is not to take out the ship to defeat any decree that may be passed. It was also stated that the cargo on board the ship for export consists partly of perishable goods and if it is prevented from leaving it will result in collosal loss. These are weighty considerations to be taken in account for the present purposes.

13. However, the point that clinches the issue is the question that the vessel sought to be attached is admittedly not the property of the defendants. it is well established that it is only the property owned by the defendant that can be attached. See P L D 1956 Sind 330 ; P L D 1959 Lab. 772 and A I R 1960 All. 615. Order XXXVIII, rule 5, C. P. C. also clearly provides attachment before judgment of the defendants' property. It being admitted that none of the defendants before the Court has any right in the vessel, obviously this Court will have no jurisdiction to attach the same.

14. Confronted with this position the learned counsel for the plaintiff's did not even attempt to press his prayer for confirmation of ad interim order attaching the vessel. Similarly he did not urge for temporary injunction to restrain the ship from sailing off. Even otherwise, in my opinion, no case for temporary injunction has been made out. The balance of, convenience clearly lies on the side of defendants as detaining the ship at Karachi would surely result in greater inconvenience to the defendants than in case of refusal in granting of injunction. The plaintiffs have set up a money clam and therefore the question of monetary compensation not being available for the injury is out of question. The only submission on behalf of the plaintiffs was that the conduct of the defendants was blatantly in breach of their undertakings contained in the Bill of Lading and therefore, in the interests of justice they should be called up to furnish security. How ever, since the prayer originally was for attachment before judgment and temporary injunction, I am not inclined to entertain this submission. Additionally there is no justification for passing such an order, if the plaintiffs have failed to bring their case within the purview of Order XXXVIII, rule 5, C. P. C.

15. In the result‑this application is dismissed and the ad interim order shall stand forthwith vacated. The consequence will be that the attachment effected upon the ship shall stand raised forthwith.

S. Q. Application dismissed.

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