IN THE HIGH COURT OF SINDH AT KARACHI

Present:-

Mr. Justice Aqeel Ahmed Abbasi,

Mr. Justice Muhammad Junaid Ghaffar

C.P.NO.D-3437 of 2010

Asif Chamdia---------------------------------------------------------Petitioner

versus

Trading Corporation of Pakistan (Pvt)

Limited (TCP) & others----------------------------------------Respondents

C.P.NO.D-3438 of 2010

Abdur Rasheed--------------------------------------------------------Petitioner

Versus

Trading Corporation of Pakistan (Pvt)

Limited (TCP) & others------------------------------------------Respondents

Date of hearing: 13.1.2015

Date of Order: 13.1.2015

Petitioner: Through Mr. Sami Ahsan, Advocate

Respondent No.1: Through Mr.Mazhar Ellahi Jafri,

Advocate

Respondent No.4 Through Mr. Azizullah, DAG

Respondent No.5 Mr. Saifullah, AAG A/W Ms.Nasreen

Sehto State Counsel.

O R D E R

Muhammad Junaid Ghaffar J:- Through this common order, we intend to dispose of the aforesaid petitions, which involve common facts and questions of law. For the sake of brevity, the facts as stated in CP No. D-3437 of 2010 have been discussed. Through instant petition, the petitioner has impugned letter dated 25.11.2010, whereby, the respondent No.1 has directed the petitioner and other parties, to immediately lift the allocated quantity of sugar by 3.12.2010 failing which, penalty of Rs.10/- per Metric ton per day would be imposed in addition to forfeiture of earnest money.

2. Precisely the facts as stated in the Memo of Petitions are that on 3.11.2010, the respondent No.1 invited bids through Newspapers for selling 50,000 Metric ton of imported sugar, equally divided in five sub-tenders of 10,000/- Metric Ton, each, whereas, minimum quantity, which could be offered was fixed at 1000 Metric tons. The petitioner had participated in the aforesaid tender and the bid of the petitioner for 1000 Metric ton was accepted @ Rs.65000/- per Metric ton excluding Sales tax at the rate of 8%. It is the case of the petitioner, that at the same time, Government of Sindh was also selling the sugar purchased from respondent No.1 at the rate of Rs.65000/- per metric ton inclusive of all taxes, whereas, purchase price of the petitioner including Sales Tax at the rate of 8% worked out to be Rs.70,200/- per Metric ton and the petitioner was required to sell its sugar @ of 71,000/- Metric ton, which was the retail price fixed by the Government of Sindh. Being aggrieved with such position the petitioners have filed instant petitions by impugning letter dated 25.11.2010 as stated hereinabove.

3. Learned Counsel for the petitioner has contended that the petitioner could not lift its sugar from respondent No.1 within the stipulated time as it was impossible for the petitioner to sell the said sugar @ Rs.71000/- per metric ton, which was the retail price fixed by the Government of Sindh, therefore, according to the petitioner either the retail price fixed by the Government may be set aside or in the alternative, Sale tax @ 8% may not be charged from the petitioner. Per learned Counsel, since the circumstances had prevented and were beyond the control of the petitioner, the petitioner could not lift the sugar within the stipulated time and hence the operation of the impugned letter dated 25.11.2010 may be suspended. In support of his contention, learned Counsel has relied upon an earlier decision of this Court dated 12.10.2010 passed in C.P.No.D-2878/2010 in the case of M/s Merium Enterprises and another versus Trading Corporation of Pakistan and others.

4. Conversely, learned Counsel for respondent No.1 has contended that the instant petition is not maintainable, as this controversy has already been decided by another Division Bench of this Court vide order dated 31.3.2013 passed in C.P. No. D-3291 of 2010 and submitted that instant petition may also be disposed of in the same terms. Learned Counsel further submitted that since the matter pertains to a factual controversy and so also enforcement of contractual obligations, hence, instant petition is otherwise also not maintainable.

5. We have heard both the learned Counsel, perused the record and have gone through the order dated 31.3.2013 passed in C. P. No. D-3291 of 2010 whereby, the petition on somewhat similar facts was disposed of in the following terms.

“ Looking at the nature of present controversy involved in the instant petition, we also agree with the contentions advanced by Mr.Mamnoon Hassan that the contractual obligation cannot be enforced by invoking Constitutional jurisdiction under Article 199 of the Constitution as no writ cold be issued in favour of petitioners against the respondent TCP being a private company though controlled and managed by the Federal or provincial Government in respect of purely contractual controversy.

In view of the foregoing discussions, we are not inclined to exercise extraordinary writ jurisdiction in the instant petition to resolve contractual dispute. However, the petitioners will be at liberty to seek such remedy as may be available to the petitioners either in civil proceedings or by invoking clause (xx) of tender [of] subject sugar as may be deemed expedient.

The petition in above terms stands disposed of along with the listed application.

6. On perusal of the aforesaid order as well as the record of instant case, it appears that instant petition also involves similar facts, as in the instant matter, the case of the petitioner is, that on the one hand, the petitioner is buying sugar at the rate of Rs.70200/- per Metric ton which includes Sales Tax @ 8%, and on the other, is being asked to sell the same in the market on the basis of retail price fixed by the Government of Sindh, therefore, could not lift sugar from the Warehouse of respondent No.1 as agreed through the terms and condition of the tender, whereas, same facts were involved in the aforesaid case which already stands dismissed / disposed of vide order dated 31.3.2013 as referred to hereinabove. We are in agreement with the observations as recorded by the learned Division Bench in the aforesaid order that the issue in hand is of enforcement of contractual obligations which otherwise could not be looked into by this Court while exercising writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. The proper remedy for resolution of such disputes lies before the Civil Court of competent jurisdiction. Reliance in this regard may also be placed on the case of Nizamuddin and another Vs. Civil Aviation Authority and 2 others (1999 SCMR 467) and Pakcom Limited & Others Vs. Federation of Pakistan & Others (PLD 2011 SC 44)

7. Therefore, in view of hereinabove facts and circumstances of instant case and for the fact that a learned Division Bench of this Court has already dismissed/disposed of a similar petition as referred to hereinabove, which was also in respect of seeking enforcement of contractual obligations against respondent No.1 (Trading Corporation of Pakistan (Pvt) Limited (TCP), we did not find substance in the aforesaid petitions, which appeared to be misconceived in fact and law. Accordingly we had dismissed the same vide short order dated 13.1.2015 and above are the reasons for short order.

JUDGE

Talib