1991 M L D 1665
[Karachi]
Before Mamoon Kazi, J
Shaikh YUSUFALY SON LIMITED---Plaintiff
versus
W.A. FRITZE & CO. and 4 others---Defendants
Suit No.572 of 1977, heard on 21st February, 1991.
Specific Relief Act (I of 1877)---
----Ss. 42 & 55---Suit for declaration and mandatory injunction---Plaintiff,
on date fixed for recording evidence appeared and produced evidence,
but no one appeared on behalf of defendants to lead evidence---Court
after hearing evidence of plaintiff closed his evidence and that of the
defendants---According to issue framed by Court, burden of proof was
entirely on defendants, but defendants having failed to appear and
produce evidence, failed to discharge such burden-- None of the issues
raised by defendants could be answered in affirmative---Case of plaintiff
having fully been proved by evidence produced by him, suit was decreed
accordingly.
Mohsin Tayabally for Plaintiff.
A.H. Mirza for Defendants.
Date of hearing: 21st February, 1991.
JUDGMENT
The plaintiff has sought the following reliefs against the defendants
Nos.3, 4 and 5:--
(a) To declare that the plaintiff is entitled to obtain the delivery of the
consignment covering Bill of Lading No.081 dated 30-6-1977 issued by
Spanship Achiffahri-sagenturen fur internationale Liniendienste GmbH
for the Master as per Annexure `B' without any let or hindrance by the
defendants Nos.3, 4 and 5.
(b) An order in the nature of mandatory injunction directing the
defendant No.4 to issue delivery order in favour of the plaintiff or its
clearing agents against the tender of original Bill of Lading.
(c) Costs of the suit.
(d) Any other relief or reliefs that this Hon 'ble Court deems the plaintiff
entitled to.
Briefly stated the facts of the case are that the defendant No.1 is an
exporter dealing in several merchandise including fluting paper. He had
appointed the defendant No.2 to act as its local agent in Karachi for the
purpose of sale and purchase of the articles in which the defendant No.1.
used to deal. The defendant No.3. who is said to be the owner of motor
vessel Sofia has its principal place of business in Greece. The defendant
No.4 is the local agent of defendant No.3 and is also the agent of m.v.
Sofia.
Pursuant to a contract between the plaintiff on the one hand and the
defendants Nos.l and 2 on the other the latter exported a consignment
consisting of 91.090 K.Gs. of fluting paper for the total C&F Karachi price
of US $ 18.582.36. The payment of the said goods was to be made by a
letter of credit in terms of the said contract. The defendant No.1 had
shipped the said consignment by m. v. Sofia on 30-10-1977 as per Invoice
No.19.136 dated 30-6-1977 and Bill of Lading No.081 dated 30-6-1977
copies of which have been. filed with the plaint as Annexures `A' and `B'
respectively. The price agreed to be paid was inclusive of the freight
payable for shipment from Hamburg to Karachi.
On 28-8-1977 the defendant No.4 addressed a circular letter to all
consignees of cargo arrived by the said vessel m.v. Sofia and claimed that
the owners, the defendant No.4 had withdrawn the charter party from
defendant No.5 and that the defendant No.3 was entitled to receive an
additional freight at the rate of Rs.280 per ton. A copy of such circular has
been filed with the plaint as Annexure `C'.
Thereafter, the plaintiff, tendered the original Bill of Lading dated 30-6-
1977 to the defendant No.4 requiring it to issue a delivery order in
respect of the consignment represented by the said Bill of Lading but the
defendant No.4 refused to do so until the plaintiff unconditionally paid a
sum of Rs.25,480 to the said defendant. The case of the plaintiff is that the
defendant No.4 was not justified to demand additional freight from the
plaintiff as after signing-of the Bill of Lading on behalf of the Master, the
defendants Nos.3, 4 and 5 were estopped from claiming any sum in
addition to the freight which had already been paid by the defendant
No.1 and hence the suit.
Written statements were filed only on behalf of the defendants Nos.2, 3
and 4 whereby their liability to the plaintiff was disputed. It is also
pertinent to point out that as no written statement was filed on behalf of
the defendants Nos.1 and 5 the suit against them was ordered to proceed
ex parte vide order of this Court dated 10-5-1980.
Be that as it may, but on the basis of the respective pleadings of the
parties the following issues were framed by the Court:--
(1) Whether the defendant No.3 had withdrawn a charter party from
defendant No.5, if so, what is the effect?
(2) Whether the defendants Nos.3 and 4 have a lien over the goods
shipped under the Bill of Lading in question which incorporated the
terms of charter party?
(3) Whether the plaintiffs are liable to pay freight at the rate of Rs.280 per
ton to defendant No.4 according to circular Annexure `C'?
(4) Whether the defendant No.3 is claiming freight and other charges at
actuals as alleged in the plaint in paragraph 15, if so, what is the effect?
(5) Whether the terms of the charter party and Bill of Lading binding are
on the plaintiff?
(6) What should the decree be?
Today when the case was fixed for recording of evidence, the plaintiffs
examined Qurban Hussain, one of their Directors. However, no evidence
was led on behalf of the defendants Nos.2, 3 and 4. So far as the
defendant No.2 is concerned. it may be pointed out that no relief has
been sought by the plaintiff against the said defendant. Furthermore, Mr.
Mohsin Tayabaly, learned counsel for the plaintiff has given up any claim
against the said defendant. However, decree has been sought by the
plaintiff only against the defendants No.3 and 4. So far as defendants
Nos.3 and 4 are concerned, although, Mr. A.H. Mirza who was holding
brief for Mr. Liaquat Merchant, their learned Advocate, did appear in the
Court but he has pleaded no instructions from the said defendants. It
may also be pointed out that none else was present on behalf of the
defendants. Consequently, after Mr. Mohsin Tayabaly closed the
plaintiff's case, the case of the defendants was also closed.
As far as the issues framed by the Court are concerned, it has been
pointed out by Mr. Mohsin Tayabaly and rightly so that the burden of
proof in this regard is entirely on the defendants Nos.3 and 4. Since no
evidence has been produced on behalf of the said defendants, the
defendants have failed to discharge such burden. Under the
circumstances none of the issues raised by the said defendants can be
answered in the affirmative. On the other hand, the case of the plaintiff
appears to be fully proved by the evidence of their witness Qurban
Hussain.
In view of the circumstances just enumerated by me although there
should be no difficulty in decreeing the plaintiff's suit in terms of the
prayer made in the plaint but before the same is done it is pertinent to
point out that the second relief claimed by the plaintiff as per para. (b) of
the prayer clause was earlier granted in effect to the plaintiff vide order
of this Court dated 11-10-1977 as the plaintiff was permitted to receive
delivery of the goods against furnishing of a bank guarantee in the sum
of Rs.25,400 which it did. Consequently, the relief clamed by the plaintiff
as per clause (b) of the prayer clause has already been granted to it. So
far as the remaining relief sought by the plaintiff is concerned, the
plaintiff has asked for a declaration to the effect that it is entitled to
obtain the delivery of the consignment in question against the Bill of
Lading dated 30-6-1977. In view of the circumstances of the case, the
plaintiff, in my opinion, is entitled to get such a relief from the Court.
Consequently, declaration as prayed for in para (a) of the prayer clause is
granted in favour of the plaintiff. Since, as pointed out earlier, the
plaintiff has already got the consequential relief from the Court vide the
interim order dated 11-10-1977, suffice it to say that the bank guarantee
furnished by the plaintiff stands discharged and the Nazir is directed to'
treat the said guarantee as cancelled. The plaintiff is also awarded costs
of the suit against the defendants No.3 and 4. The suit against the
defendants No.1, 2 and 5 is dismissed as no relief has been claimed
against them.
H.B.T./S-736/K Order accordingly.
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