Suit No.325/2009

Date Order with signature of Judge

1.For Orders on Nazir Report dated 04.05.2009.

2.For hearing of CMA No.2279/2009(U/O XXXIX R 1&2 CPC)

3.For hearing of CMA No.4661/2009 (U/S 151 CPC)

26.05.2009.

Mr. Sajid Zahid Adv. for the Plaintiffs.

Mr. Khalid Jawed Khan Adv. for Defendants No.1 & 2.

Mr. Muhammad Sarfraz Sulheri Adv. for Defendant No.4.

1. Nazir Reference whereby it has been informed that the Plaintiff has furnished Bank Guarantee in terms of order dated 11.03.2009, subject to all just exceptions, is taken on record.

2. Learned counsel for the Plaintiffs states that since the consignment of the Plaintiffs has been released, therefore, this application has borne its purpose and has become infructuous, therefore is dismissed as not pressed.

3. Through this application, Defendants No.1 & 2 have prayed for release of Pay Order No.60574996 dated 02.02.2009 drawn on City Branch of UBL in favour of Defendant No.2 in the sum of Rs.1,67,27,144.00. Learned counsel for Defendants No.1 & 2 states that there was dispute between the Plaintiffs and Defendants regarding charging of freight as the Plaintiffs were paying through said Pay Order an amount which was much less than what was due and was not acceptable to the Defendants. However, upon filing of the instant suit this Court directed release of the goods vide its order dated 11.03.2009 upon depositing the said Pay Order with the Nazir alongwith a Bank Guarantee for the disputed amount and since the goods have been released, therefore the admitted amount of freight i.e. Pay Order be released in favour of the Defendant. Learned counsel for the Plaintiffs has vehemently opposed the request on the ground that due to the unreasonable demand of high freight the Plaintiff has to rescind the contract with the Defendants and had to engage a new transportation company at a much higher price resulting in substantial losses payable by the Defendants, for which the Plaintiff has issued legal notices.

The record reflects that the Plaintiff was ready and willing to pay the admitted amount of freight and that is why a Pay Order in the sum of Rs.1,67,27,144.00 was prepared even before filing of the instant suit. A perusal of order dated 11.03.2009 (first para at page 2) reflects that the Plaintiff has unequivocally shown his willingness to pay said amount to the Defendants and for the remaining undertook to furnish Bank Guarantee and on such assurance the goods were released, therefore raising objection to the release, of Pay Order which the Plaintiffs themselves were ready and willing to give to the Defendants No.2 even prior to filing of this suit appears to be malafide. The application is allowed. Nazir is directed to hand over said Pay Order to Defendants No.2 upon proper identification and verification.

Judge