MAULVI ANWARUL HAQ, J.--- As per facts stated by Ch. Naseer Ahmad learned counsel for the respondents, to begin with a Memorandum of understanding (MOU) was arrived at between the Federal Government of Pakistan and the respondent (the respondent is stated to be a Company organized and existing under the laws of Kingdom of Saudi Arabia with its office in Jeddah with a representative in Pakistan present in Islamabad). According to this MUO, the Government of Pakistan (GOP) was interested for taking on lease reliable housing facilities in Makkah Mokarrama for Pakistani pilgrims while performing Hajj and Umra while respondent No. 1 had agreed to acquire the necessary real estate and to construct required structures and buildings for the said purpose and to lease out the same to G.O.P. The costs of the said facility was stated to be US $ 242 Million.
Upon completion of the said facilities these were to be leased out to the G.O.P. For 99 years. An advance payment of U.S. $ 100 Million was to be paid to respondent. This was subject to respondent arranging the necessary financing for G.O.P. On terms approved by G.O.P. This MOU was signed by Mr. Shezi Nackvi for the respondent and Mr. M. Lutufullah Mutfi, Secretary, Ministry of Religious Affairs, Government of Pakistan. Thereafter, an agreement was executed and signed on 10.9.1996 between the "Awami. Hajj Trust" established under Section 3 of the Awami Hajj Trust Ordinance, 1996 and the respondent. This agreement was signed on behalf of the respondent by the same Mr. Shezi Nackvi and by Mr. Zubair Kidwai, Managing Trustee of the said Awami Hajj Trust. One of the conditions of this agreement was that the said Awami Hajj Trust (hereinafter referred to be as the Trust) was to pay a lump sum of US $ one hundred million to the respondent by way of advance within 30 days from the date of execution of the said agreement. This was subject to respondent arranging through one of its affiliates a US one hundred million financing facility for the Trust against a guarantee of G.O.P. It was further subjected to respondent submitting to the Trust a performance bond covering the said payment and a counter-guarantee issued by the Trust and Al-Baraka Islamic Investment Bank, E.C., Bahrain (appointed by the Board of Trustees pursuant to Section 8 of the Awami Hajj Trust Ordinance, 1996) in favour of G.O.P.
2. The said agreement also contained the following Clause 23 as an arbitration agreement:- "23. Any dispute or difference of any kind whatsoever between the Trust and Dallah arising out of or in connection with this Agreement shall be settled by arbitration held under the Rules of the Conciliation and Arbitration of the International Chamber of Commerce, Paris, by three arbitrators appointed under such Rules."
3. On 19.1.1997 a letter was addressed by the said Mr. M. Lutfullah Mufti, Secretary to the Chairman of the respondent stating that since it has failed to submit the specifications and drawings for the approval of the Trust it is in breach of a fundamental term of the agreement which tantamount to a repudiation of the whole agreement and which repudiation is accepted. It was fui. Their stated that the effectiveness of the agreement was conditional upon respondent's arranging the requisite financing facility amounting to US $ one hundred million within 30 days of the execution and the respondent has failed to provide the same and as such there is no agreement in law.
4. On 20.1.1997 the Awami Hajj Trust filed a declaratory suit against the respondent seeking a declaration that the said agreement stood repudiated for the said reasons. This suit was consigned to records vide order dated 21.2.1998 of a learned Civil Judge, Islamabad, for the reasons that the said Awami Hajj Trust is no more a legal person as it had legal entity only during the life of the Ordinance and whin the Ordinance was elapsed the said person is no more a legal person.
5. On 19.5.1998 the respondent invoked the said arbitration clause and filed its claim with the International Chamber of Commerce at Paris naming the respondent to be the Ministry of Religious Affairs, Government of Pakistan, Islamabad. Notice was issued by the said Chamber to the said Ministry of the Government of Pakistan on 29.5.1998.
6. On 2.6.1998 a suit was filed by the Government of Pakistan against the respondent seeking a declaration that the said agreement stood repudiated. While the suit was pending the Government of Pakistan filed an application under Section 33 of the Arbitration Act, 1940. On 14.1.1999 the learned Court seized of the civil suit was informed that the said petition had been filed and the suit is to be withdrawn. The suit was accordingly allowed to be withdrawn.
7. The said application under Section 33 of the Arbitration Act was filed by the petitioner on 11.1.1999. It was stated that the petitioner is not a legal representative/successor or assignee of the erstwhile Awami Hajj Trust and it is not a party to the said arbitration agreement dated 10.9.1996 executed between the said Trust and the respondent and there being no privy between the petitioner and the respondent and that the petitioner is not a signatory to the arbitration agreement, the same is non-existent and the petitioner is not bound by it. Accordingly, the following reliefs were prayed:-
(i) That Pakistan is not a legal representative/successor or assignee of the defunct Awami Hajj Trust and it cannot be termed as a party to the Arbitration Agreement dated 11.9.1996 executed between Awami Hajj Trust and Dallah Real Estate.
(ii) That Pakistan had not taken the responsibilities of the defunct Awami Hajj Trust by any agreement and it had never agreed to go into arbitration in place of Awami Hajj Trust.
(iii) That there is no privity of contract between Pakistan and Dallah Real Estate and Pakistan is not a signatory to any Arbitration Agreement.
(iv) That Agreement dated 10.9.1996 executed between Awarni Hajj Trust and Dallah Real Estate is an illegal and invalid instrument which under the law could nor have been acted upon and form basis for assumption of jurisdiction by lnternational Court of Arbitration. Paris, and the same are illegal, without jurisdiction and of no legal effect.
(v) That the arbitration proceedings initiated by Dallah Real Estate in the International Court of Arbitration, Paris, being against a non-juristic person L e. Ministry of Religious Affairs, Islamabad, are incompetent.
(Mauivi Anwarul Haq, J.J.
(vi) That the Agreement dated 10.9.1996 executed between Awami Raj] Trust and Dallah Real Estate is against public interest and the same as such is void and cannot be enforced at law."
8. The respondent filed a written reply on 12.2.1999. The very first objection taken on behalf of the respondent to the said application needs to be reproduced here and is accordingly reproduced as follows:-
1. Under Section 33 of the Arbitration Act, 1940, only a party to an arbitration agreement or any person claiming under such party can file an application before the Court. Since the petitioner denies being a party to the arbitration agreement which is subsumed in the Agreement dated 10.9.1996 (copy attached as ' A') between the Awami Hajj Trust (hereinafter referred to as AHT) and the respondent and disclaims any relationship (even as successor) with AHT, it does not have locus standi to file the application under reply . The application is, therefore, incompetent."
On merits reference was made to the said MOU and the said agreement stating that notwithstanding the fact that the said Trust was a party to the said agreement, the Government of Pakistan is bound by the said agreement.
9. The learned Trial Court framed the following issues:- "(1) Whether the petitioner has no locus standi to file the instant application? OPR
(2) Whether this Court lacks jurisdiction to try the matter in dispute? OPR
(3) Whether the petitioner is not the legal representative of the defendant Awami Hajj Trust. If so, its effect? OPP
(4) Whether the agreement dated 10.9.1996 executed between Awami Hajj Trust and Dallah Real Estate is an illegal and invalid instrument? OPP
(5) Whether the assumption of jurisdiction by the International Court of Arbitration, Paris is of no legal effect? OPP
(6) Relief."
10. The learned Trial Court heard the parties on the basis of their respective affidavits. It proceeded to decide issue No. 1 and to decide it against the petitioner. The application was accordingly dismissed vide order dated 19.6.1999.
11. Learned counsel for the petitioner with reference to the judgment in the case of Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. (PLD 1970 SC 43) argues that notwithstanding the position taken by the petitioner that it was not a party to the agreement yet it had locus standi to file the application. Now the learned counsel for the respondent finds himself at the horns of a dilema. His client has not opted to challenge the said finding and while insisting that this civil revision is time-barred and ought to be dismissed, in fact, he has argued that the finding of the learned Trial Court is not correct and ought to be set aside in view of the said factual background explained in detail by him and as noted by me above. According to the learned counsel the Government of Pakistan was fully involved in this case and is liable under the said agreement between the said Trust and the respondent and has rightly been proceeded against before the said International Tribunal of Arbitration.
12. I have gone through the records appended with the civil revision as also the records appended by the learned counsel for the respondent vide C.M. No. 284-C/2003, with the assistance of the learned counsel for the parties. I have already re-produced above the factual history of this case.
Now before I proceed further I may note that although the learned Trial Court had dismissed the application yet it has been dismissed on the basis of findings which to my mind by all means are in favour of the petitioner inasmuch as the learned Trial Court had held that the petitioner is neither a party to the arbitration agreement nor claims under any of the parties to the agreement. I may re- produce here the rather brief findings of the learned Trial Court:- "The agreement was signed between Awami Hajj Trust and Dallah Real Estate. The Government of Pakistan did not sign the agreement. It was signed by Awami Hajj Trust which was creation of a statute. The applicant has also claimed that it is not a legal representative or assignee of the Awami Hajj Trust. The Ordinance which created the Awami Hajj Trust was also silent on the question of legal representative/assignee of Awami Hajj Trust. The applicant cannot move the instant application not being "person claiming under party to an arbitration agreement". In this view of the matter, the applicant has no locus standi to file the instant application. This issue is decided in favour of the respondent and against the applicant."
13. I have already referred in some detail to the agreement dated 10.9.1996 which contains the said arbitration agreement vide Clause 23 thereof. There is no denial of the fact that the agreement was executed by the Awami Hajj .Trust on the one hand and the respondent on the other. Now this Awami Hajj Trust was created under Section 3 of the Awami Hajj Trust Ordinance, 1996. I am told that this Ordinance in terms of Article 89 of the Constitution was promulgated and re-promulgated by the President of Pakistan. Lastly, it was re-promulgated vide Ordinance No. LXXXI of 1996 published in the Gazette of Pakistan on 12.8.1996. Now the Preamble of this Ordinance narrates that the President deems it expedient to provide for the establishment of an Awami. Hall Trust to mobilize savings from the pilgrims desirous of performing Hajj and investment thereof in the Islamic modes of investment and for facilitating Hajj operations and matters connected therewith and incidental thereto. Now as stated by me above, the Trust was established under Section 3. The purposes and objects of the Trust were to:- '(a) mobilize savings from members;
(b) invest savings of the members in appropriate schemes yielding maximum returns and credit profits accrued therefrom in the members' accounts;
(c) defray the expenses of Hajj of individual members out of their savings and profit accrued thereon; and
(d) adopt measures for facilitating the performance of Hajj by members."
14. Under Section 5 the general direction and administration of the Trust and its affairs was to vest in the Board of Trustees consisting of the persons mentioned therein and these include the Federal Minister for Religious Affairs as Chairman, and, inter a/ia, Federal Minister for Finance as Member.
The Secretary, Religious Affairs Division, Government of Pakistan, was to act as Secretary of the Board. I also need to refer to Section 10 of the said Ordinance which provides for establishment of a "Fund" to be known as "Awami Hajj Savings and Investment Fund" to be maintained by a Trustee Bank appointed under Section 8 of the said Ordinance. Now according to this provision the Fund was to be financed from the following sources:- "(a) contribution and savings by the members;
(b) contributions by philanthropists for the welfare of Hujjaj;
(c) profit earnings and capital gains from the investments made out of savings of members; and
(d) income from moveable and immovable properties of the Trust."
15. A bare reading of the provisions of the said Ordinance would show that the Government of Pakistan and more particularly the Treasury/State exchequer of Pakistan does not figure anywhere in the whole of the scheme of the said Ordinance. Now according to the said agreement between the said Trust and the respondent, the Trust was to pay US $ one hundred million in advance within 30 days of the date of execution of the agreement. This was subject to respondent's arranging a financing facility for the "Trust" against a guarantee of the G.O.P. And a counter-guarantee issued by the Trust and the Trustee Bank in favour of G.O.P. Now under Section 8 of the said Ordinance the Trustee Bank was to be appointed by a Board of Trustee for collection of savings, maintenance of the accounts of the members, investments of the Fund in accordance with the directions of the Board and for efficient management of the Fund. I have already stated above the composition of the said Fund vide Section 10 of the said Ordinance.
16. It will thus be seen that the entire exercise seems to be undertaken for the benefit of an entity which is not in picture at all i.e. The Haji intending to perform Hajj. It is his savings or the funds provided by him or on his behalf by philanthropists which was to form part of the said Fund against which a counter-guarantee was to be given. Be that as it may, this was an arrangement between the said Trust and the respondent. The said Ordinance stood enacted and its provisions are referred to in the said agreement dated 10.9.1996. It is but to be assumed that the respondent was fully aware as to whom it is dealing with and what is the financial source available. These certainly do not include the State exchequer of Pakistan.
17. I, therefore, do find that the learned Trial Court has very correctly found that the petitioner G.O.P.
Is neither a party to the said agreement nor it claims under any of the parties to the same. This being so the petitioner cannot be proceeded against under the said arbitration agreement which forms part of the said agreement dated 10.9.1996.
18. The learned counsel informs me that the International Tribunal of Arbitration has given a partial Award on 26.6.2001. I do find that the said learned Tribunal has held by way of a partial Award dated 26.6.2001 that the petitioner is bound by the arbitration agreement contained in Clause 23 of the agreement dated 10.9.1996 and it is a proper defendant before the said Tribunal and as such the learned Tribunal has the jurisdiction in the matter. As stated by me above, the proceedings had commenced under Section 33 of the Arbitration Act, 1940 in the year 1999 and the question gone into and decided by the learned Tribunal was being adjudicated by a Competent Court in Pakistan.
This being so, Section 35 of the Arbitration Act, 1940 shall take effect read with Section 33 of the said Act, 1940.
19. The revision against the impugned order dated 19.6.1999 was initially filed in the Court of the learned District Judge at Islamabad. It was entrusted to a learned Additional District Judge. It will further be noted that the impugned order was announced on 19.6.1999 but was corrected by the learned Civil Judge on 17.7.1999. The copy of this order was applied for on 22.7.1999 and it was delivered on the same date. The revision was filed in the Court of learned District Judge on 1.9.1999. The respondent raised the objection in the course of limine hearing on 25.11.1999 regarding the pecuniary jurisdiction of learned ADJ. However, the case was admitted to regular hearing after rejecting the said objection. It appears that this order was challenged by filing W.P. No. 2585/1999 in this Court.
Interference was declined with a direction to the learned ADJ to attend to the question of jurisdiction in accordance with law. This was done vide order dated 24.1.2000. The matter was then taken-up by the learned ADJ who vide judgment dated 25.10.2000 decided that he has no pecuniary jurisdiction and returned the revision for presentation in this Court. The revision was accordingly filed in this Court on 21.11.2000. C.M. No. 2043C/2000 has been filed for condonation of delay. It has been stated that in the first instance the objection to pecuniary jurisdiction was rejected. The matter was questioned in this Court and vide order dated 24.1.2000 the ADJ was directed to dispose of the matter of said jurisdiction. On 25.10.2000 the revision was ordered to be returned which was then returned on 3.11.2000. It has been stated that the civil revision was filed before the learned District Judge under a bona fide belief that jurisdiction vests in the said Court.
Learned counsel for the respondent on the other hand vehemently urges that this is a case of gross neglect and not of a bona fide mistake. Now I find that starting from delivery of copy of the corrected judgment on 22.7.1999 the petitioner had three months to file the civil revision in this Court. The civil revision was filed within the said time on 1.9.1999 but before the learned District Judge, Islamabad. Although an objection was raised but was found by the learned ADJ in favour of the petitioner vide order dated 25.11.1999. Then the matter remained pending in this Court in W.P. No. 2585/1999 till 24.1.2000. The matter was ultimately decided by the learned ADJ on 25.10.2000. In the peculiar circumstances of the case, the said lapse of time is not wholly attributable to the petitioner and an act of Court is certainly involved. To my mind the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case of Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCM R 584) is squarely attracted. I, therefore, allow the said application and condone the delay in the filing of this civil application and condone the delay in the filing of this civil revision in this Court. The fact, however, remains that since the judgment of the learned Trial Court by all means is in favour of the petitioner and the learned counsel for the respondent has remained unable to convince me to set the same aside, the petitioner cannot be termed to be a person aggrieved of the said judgment. Be that as it may, I have examined the records within the meaning of Section 115, CPC in the light of the arguments submitted by the learned counsel for the respondent. The civil is dismissed with the above observations. No orders as to costs.
C. Rev. Dismissed.