SKYWORD (PVT.) LTD. VS SALAHUDDIN
2015 P T D 604
[Sindh High Court]
Before Syed Saeedudin Nasir, J
Messrs SKYWORD (PVT.) LTD. through General Manager
versus
SALAHUDDIN and 9 others
Suit No.340 and C.M.As. Nos. 3183, 3184 of 2013 13951 of 2014, decided on 20/11/2014.
Customs Act (IV of 1969)---
----S. 131---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Suit for cancellation of documents, declaration and injunction---Interim injunction, grant of---Clearance of goods for exportation---Plaintiff claimed to be the owner of goods in question which were alleged to be stolen and defendant intended to export to foreign country---Validity---Stolen property which was subject matter of FIR in question might turn out to be belonging to plaintiff and if the same was exported, it would cause irreparable loss to plaintiff's reputation by sole act of export of the same---Plaintiff had made out a prima facie case for grant of injunction and balance of convenience was also in favour of plaintiff, who was likely to suffer irreparable loss if injunction was refused---Application was allowed in circumstances.
PLD 1993 Kar. 90; PLD 1993 Kar. 262; PLD 2012 SC AJ&K page-7; 2001 YLR 327 and PLD 2004 SC 860 ref.
Khawaja Shamsul Islam along with Imran Taj for Plaintiffs.
Arjumand Khan for Defendants Nos. 4 and 5.
Amiruddin for Defendant No.8.
ORDER
SYED SAEEDUDDIN NASIR, J.---Through this application C.M.A. No.3183/2013 the plaintiff seeks injunction restraining the defendants, their agents, attorneys, representatives, employees, etc from exporting the alleged stolen goods of the plaintiff i.e. "Dark Green Onyx/Marble (Zarghoon)", stuffed in the aforesaid 12 containers bearing Nos.CLHU2754906, CPSU1628118, FCUY4050252M GATU0067889, HLXU2259250, HLXU2307174, HLXU3078494, HLXU3181820, SCZU7396791, TEXU2492629, GEZU3632649, CPSU170059, presently lying with defendant No.8 under the control and jurisdiction of defendants Nos.7 to 9, or even to hand over the same to defendants Nos.1 to 6.
The brief facts of the case are that the plaintiff is one of the leading onyx quarries operators and exporters of different kind of marbles and more particularly one of the leading unique product namely "Dark Green Onyx/Marble (Zargoon)" for the aforesaid purposes the plaintiff company has been granted leases by the Government of Balochistan. The details of which are as under:-
(i)Lease No.ML-MARBLE (1) dated 23-7-2010 for an area of 2677.52 acres, shown on Survey of Pakistan Topo Sheet No.30-0/8, situated near Jhuli, District Chagai, Balochistan, exclusively meant for "Dark Green Onyx/Marble (Zarghoon)".
(ii)Lease No. ML-MARBLE (1590) dated 23-7-2010 for an area of 127.62 acres, shown on Survey of Pakistan Topo Sheet No.30-0/8, situated near Jhuli, District Chagai, Balochistan, exclusively meant for "Dark Green Onyx/Marble (Zarghoon)".
(iii)Lease No.ML-MARBLE (1169) dated 23-7-2010 for an area of 3119.79 acres, shown on Survey of Pakistan Topo Sheet No.30-K/8, 30-L/8, situated near Mashki, Chali, District Chagai, Balochistan.
(iv)Lease No.ML-MARBLE (1111) dated 23-7-2010 for an area of 58.18 acres, shown on Survey of Pakistan Topo Sheet No.30-K/8, situated near Mashki, District Chagai, Balochistan.
(v)Lease No.ML-MARBLE (1169-A) dated 23-7-2010 for an area of 60 acres, shown on Survey of Pakistan Topo Sheet No.30-0/8, situated near Butak, District Chagai, Balochistan.
(vi)Lease No.ML-MARBLE (2488) dated 23-7-2010 for an area of 276.682 acres, shown on Survey of Pakistan Topo Sheet No.30-0/8, situated near Butak, District Chagai, Balochistan.
Which are annexed to the plaint as annexure A to A-5.
The learned counsel for the plaintiff states that the lands at Sr. Nos.(i) and (ii) above situated near Jhuli, District Chagai, are known for the most unique and beautiful "Dark Green Onyx/Marble (Zarghoon)" which is exclusively available in that particular area/mines and it is not found anywhere else in the entire Pakistan or any other part of the world. The plaintiff has also joint collaboration venture with the top most company of China, which was duly appreciated by the Economics and Commerce office of the Consulate General of Peoples' Republic of China at Karachi, and letter of compliments was also issued by the aforesaid office to the Ministry of Foreign Affairs, Government of Pakistan mentioning therein the quarries and mines pertaining to the plaintiff company. Pursuant to the aforesaid joint venture for more than decades, the Chinese Engineers and workers are working at the site office of plaintiff's mines. It is submitted by the learned counsel for the plaintiff that a day light robbery was committed at the aforesaid plaintiff's mines/quarries both situated adjacent to each other near Jhuli, District Chaghi between the period from 7-11-2012 to 24-11-2012 when the defendants Nos.1 to 3 and their accomplices duly armed with deadly automatic weapons, sent as many as 11 trucks on which the aforesaid "Dark Green Onyx/Marble (Zarghoon)" was loaded and the said armed persons virtually hijacked the entire mines and in the early morning hours of 24-11-2012, the defendants Nos.1 to 3 along with their accomplices, took away all the 11 trucks, fully loaded with the aforesaid "Dark Green Onyx/Marble (Zarghoon)" thereby committing a day light robbery of the onyx/marbles extract and owned by the plaintiff, however, the employees noted down the number plates of the aforesaid trucks showing the registration numbers as under:--
(i)TKF-385
(ii)TKL-287
(iii)TKZ-257
(iv)TKD-859
(v)TKV-934
(vi)TAA-081
(vii)TKB-586
(viii) TKN-993
(ix)TKL-385
(x)TKW-934
(xi)TKZ-923
An FIR of the aforesaid incident was accordingly lodged being FIR No.39/2012 with Police Station Naukundi District Chagai on 24-11-2012 at 5.00 p.m.
The plaintiff approached the relevant authorities but the whereabouts of the stolen marbles could not be located, however, in order to inform the general public as well as Government agencies, as well as to ensure that the stolen marble could not be shifted from Balochistan as well as shall not cross Pakistan's territorial limits, the plaintiff through its Advocate on 4-12-2012 published public notices in widely circulated newspapers i.e. Daily Dawn, Daily Jung simultaneously which are published in the major cities of Pakistan, as well as got another notice published in the local newspaper namely Daily Intikhab, Quetta. The said notice notified that no person/body shall indulge in the purchase of stolen goods as aforesaid which is case property in the aforesaid FIR. Further hectic efforts were made to find out the whereabouts of the aforesaid stolen goods, it was transpired to the plaintiff that defendants Nos.1, 2 and 3 and their accomplices through defendants Nos.4 and 5 are trying to export the plaintiff's stolen goods i.e. "Dark Green Onyx/Marble (Zarghoon)" stuffed in 12 containers, to China, in this regard, the defendants Nos. 4 and 5 on 20-3-2012 have filed Bill of Export bearing No.CRN No.KPEXSB 22135150313 with defendant No.7 the aforesaid CRN was logged in by the defendant No.5 in which Custom Agent License No.1873 was specially mentioned together with the name of shipper as Ali & Co. the defendant No.4 herein. The containers numbers are mentioned herein below:--
(i) CLHU2754906
(ii) CPSU1628118
(iii) FCIU4050252
(iv) GATU0067889
(v) HLXU2259250
(vi) HLXU2307174
(vii) HLXU3078494
(viii) HLXU3181820
(ix) SCZY7396791
(x) TEXU2492629
(xi) GESU3632649
(xii) CPSU1700594
The plaintiff immediately informed the official defendants i.e. Customs, PICT, KPT and served upon them a legal notice dated 20-3-2013 explaining about the aforesaid robbery and asking them not to allow export of the aforesaid shipment of stolen goods of the plaintiff.
The plaintiff also appeared before the concerned custom official more particularly the defendant No.7(b) M.R. Akram, who also called the defendants Nos.4 and 5 who disclosed and conceded before the defendant No.7(b) that the aforesaid 11 trucks were off-loaded by the defendants Nos.1 to 3 and their accomplices at the warehouse of defendant No.6 Marina Industries, situated at Plot Nos.5 to 12-A, Sector 1-A, Marble City, Main RCK Highway, Gadani, District Lasbella, and thereafter the defendant No.4 again loaded the same stolen goods in 12 containers and brought the same direct to Karachi port for onward export to China, hence the robbery committed by the defendants Nos.1 to 3 stands fully proved, it is contended by the learned counsel for the plaintiff.
It is next contended by the learned counsel for the plaintiff that the defendant No.7(b) immediately issued detention notice on 21-3-2013 addressed to defendants Nos.8 and 9 as the aforesaid stolen goods stuffed in 12 containers was withheld. In addition to above, the Tehsildar Naukundi on 20-3-2012 also informed the Master of the ship M.V. Reo Delta, Chairman, KPT, PICT, intimating that the aforesaid stolen goods belonged to the plaintiff and are involved as case property in the aforesaid FIR No.39/2012, therefore, the aforesaid goods cannot be exported and shall not be allowed to leave Pakistan. The value of the stolen goods of the plaintiff about rupees two crores, therefore, this Court are restrained the defendants from exporting the stolen goods of the plaintiff.
Learned counsel for the plaintiff Mr. Khawaja Shamsul Islam, in order to substantiate his arguments has relied upon section 27 of the Sales of Goods Act, which is reproduced as under for the sake of convenience:-
"27. Sale by person not the owner. Subject to the provisions of this Act and of any other law for the time being force, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner the goods is by his conduct precluded from denying the seller's authority to sell:
Provided that, where a mercantile agent is, with the consent of the owner, in possession of the goods or of a document of title of the goods, any sale made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorized by the owner of the goods to make the same; provided that the buyer acts in good faith and has not at the time of the contract of sale notice that the sell has no authority to sell"
Learned counsel for the plaintiff while referring to the aforesaid section states that admittedly the defendants Nos.1, 2 and 3 are not the owners of the goods in question, therefore, they did not have any right, title or authority to sell the same, therefore, the defendants Nos.4, 5 and 6 have acquired no better title for the aforesaid goods in this regard. Learned counsel for the plaintiff has placed his reliance PLJ 1989 Karachi 389(sic).
Thereafter, the learned counsel for the plaintiff has relied upon section 131(1)(a) of the Customs, 1969 and has argued that no goods shall be loaded for exportation until the owner of those goods has made a declaration in the prescribed manner by filing a goods declaration to the customs containing correct and complete particular of his goods, and assessed and paid his liabilities of duty, taxes and other charges, if any. For convenience section 131(1)(a) is reproduced as under:-
"[131 Clearance for exportation.---(1) No goods shall be loaded for exportation until,--
(a)The owner of any goods to be exported has made a declaration in such form and manner as prescribed by the Board, by filing a goods declaration to Customs containing correct and complete particulars of his goods, and assessed and paid his liability of duly, taxes and other charges, if any;
At the end of his arguments learned counsel for the plaintiff states that balance of convenience for the grant of injunction lies in favour of the plaintiff, the plaintiff has made out prima facie case to the grant of injunction and if injunction application is not allowed, and the stolen goods of the plaintiff are allowed to export the plaintiff is likely to suffer an irreparable loss inasmuch as the plaintiff has got the exclusive right to excavate, sell and export the unique product namely; "Dark Green Onyx/Marble (Zarghoon)", throughout the world including Pakistan.
Turning now to the arguments extended by the learned counsel for the defendant No.4, it is firstly contended that the application is not maintainable and is barred by sections 42 and 56 of the Specific Relief Act, the listed application and suit as filed is incompetent and are liable to be rejected on this sole ground. No prima facie case has been established and the plaintiff has come to this Court with unclean hands, the defendant No.4 cannot be deprived from the enjoyment of his property which was lawfully acquired by him against a sizeable consideration.
The plaintiff has no locus standi to file the present suit or the listed application. The learned counsel for the defendant No.4 states that it is not understandable that defendants Nos.1 to 3 sent 11 trucks with armed men who over a period of 18 days leisurely loaded the trucks with goods belonging to the plaintiff while the plaintiff and his men watched and waited for the loaded trucks to flee the scene of the crime. In addition, the plaintiff has failed to produce any documents or proof to substantiate their claim. In any case, the defendant No.4 is an independent proprietorship and nothing to do with the defendants Nos.1 to 3 and/or their representative or agents and that they are bona fide purchaser for value of the case in question. The mark "SSZ" is neither claimed to be owned by the plaintiff nor substantiated by any evidence. It is specifically denied that the plaintiff has any exclusive rights over "Dark Green Onyx/Marble (Zarghoon)" as alleged in the plaint. Ms. Arjumand Khan, learned Advocate for the defendant No.5 further states that the accused in FIR No.39/2013 have been acquitted. However, Mr. Khawaja Shamsul Islam, Advocate for the plaintiff states that the said acquittal has been challenged in appeal before the appellate forum.
Learned counsel for defendant No.4 has vehemently opposed the grant of injunction application on the ground that the plaintiff is not entitled to the same inasmuch as it lacks the guidelines for grant of temporary injunction.
In support of her arguments the learned counsel for the defendant No.4 relied upon PLD 1993 Karachi-90, PLD 1993 Karachi 262, PLD 2012 SC AJ&K page-7, PLD (sic) SC AJ&K page-13, 2001 YLR 327, PLD 2004 SC 860.
Aforesaid case-law cited by the learned counsel for defendant No.4 are of general application and do not focus particularly to the situation and circumstances of the present case wherein admittedly the plaintiff is exclusive exporter of "Dark Green Onyx/Marble (Zarghoon)" and admitted the plaintiff's goods have been stolen and surreptitiously sold to the present defendants who are trying to export the stolen property to China. The learned counsel for the plaintiff has also drawn attention to annexure B/1, page-223 to the plaint along with which the plaintiff has filed certain photographs of the marble blocks excavated from the mines and quarries of the plaintiff bearing a special mark with read pencil SSZ and a number. According to the learned counsel for the plaintiff this mark SSZ is synonymous with and strongly suggesting that the marble blocks bearing the same belong to the plaintiff and none else. He next contended that the seized marble blocks also bear the aforesaid SSZ mark of the plaintiff upon them. The said marble blocks also bear the inscription SSZ, which admittedly belongs to the plaintiff. In my view the stolen property which is subject matter of the case FIR No.39/2012 might turn out to be belonging to the plaintiff and if the same is exported, it will cause irreparable loss to the plaintiff's reputation by sole act of export of the same. In my view the plaintiff has made out a prima facie case for the grant of injunction and balance of convenience is also in favour of the plaintiff and the plaintiff is likely to suffer irreparable loss if injunction is refused, I, therefore, allow this application C.M.A. No.3183/2013 with no order as to cost. The interim injunction order granted earlier is hereby confirmed in terms of the foresaid order.
Above are the reasons for the short order announced in the open Court on 11-11-2014.
MH/S-104/SindhApplication allowed.