1. This order will dispose of the aforesaid two applications as all the learned counsel have agreed that they may be decided together. The first application is for grant of temporary injunction and the second is for action against defendant No. 1 and its officers or employees for breach of ad interim orders passed on the first application.
2. Taking up the main application first, the facts are that defendant No. 1 Messrs J. P. Brockhoven is a foreign company which has been awarded a contract by the Port Qasim Authority in the sum of Rs.
3. 35.5 crores for Channel Dragging and Construction and Installation of Navigation Aids works as part of the Port Qasim Project. The dispute in this case pertains to the sub-contract for civil works of Navigation Aids and detailed survey of the entire Channel of Port Muhammad Bin Qasim, Karachi.
4. Defen--dant No. 4 in this suit is Port Muhammad Bin Qasim Authority (hereinafter referred to as 'the employer'), defendant No. 3 Messrs International Consultants are the Engineers and the Consultants appointed by defen--dant No. 1. Defendant No. 5 Messrs Pacific Consultants International are the Engineers employed by the employer for consultation and advice in regard to the Port Qasim Scheme (hereinafter referred to as 'the Engineer'). The main contract envisaged the subleting of any part of the contract, but not without the prior written consent of the Engineer (defendant No. 5) of the employer. Term No. 4 of the instructions to the tenders incorporated in the tender documents was as under :- "4. Associate with other Contract.-(I) In principle the maximum possible employment of sub- contractors, local technicians, skilled and unskilled labour in Pakistan is to be encouraged.
(2) The employment of any non-Pakistani sub-contractor shall be limited to a minimum extent except that such non-Pakistani sub-contractor is not avoidable as for example, due to his being a patent right holder, possessing a high degree of experts or possessing specialized equipment needed for the works.
(3) The list of intended sub-contracts shall be submitted with Tender, showing their names and addresses, type of works and reasons for sub-letting in accordance with the Appendix 'F' to the Form of Tender."
5. In November 1977, the defendant No. 1 invited tenders for the sub-contract in dispute through their Consultants defendant No. 3. Pursuant to this on 12-12-1977 the plaintiffs submitted tender for the sub-contract. The last date for submission of tenderers as to the main contract was 20-12-1977. The tenders . Submitted by the tenders for the sub-contract were opened some--time before 18-12- 1977 on which date according to the allegation of the. Plaintiffs their tender was accepted as being the lowest, subject to the award of the main contract to defendant No. 1. Accordingly their name was mentioned in Appendix 'F' to the tender submitted by defendant No. 1 for the main contract. It is the case of the plaintiffs that the award of the main contract was subject to the study and appraisal of the tender by the Engineer to ensure compliance with the instructions contained in the tender documents including Term No. 4 thereof set out above, so that normally the sub-contract had to be given to Pakistani contractor.
6. According to the allegations of the plaintiffs they were "led to believe that their name was the only name submitted as sub-contractor for approval of the employer and the engineer which was to be approved by the Asian Development Bank and the Government of Pakistan". As subsequently discovered by the plaintiffs the name of Messrs Volkarvan (Pakistan) Limited (defendant No. 8) was also included in Appendix 'F' but this fact was fraudulently suppressed from the plaintiffs. The grievance of the plaintiffs is that the defendant No. 1 had mala fide intention ab initio to give the sub-contract to defendant No. 8 and in pursuance thereof defendant No. 1 now maintains that the sub-contract must be given to the latter and not to the plaintiffs. It is further contended that the plaintiff submitted a performance bond on 19-12-1977 and had incurred expenses in making preparations and mobilizing their resources for the sub-contract. It is common ground that defendant No. 1 was selected and awarded the contract by the employer in consultation with its engineer on 8-8-1978. The plea of the plaintiffs is that upon the awarding of the main contract to the defendant No. 1 the sub-contract between the latter and the plaintiffs also became final and concluded. However, in the meeting of 3-8-1978 with the Managing Director of defendant No. I the plaintiffs were informed that the latter were intending to award the sub-contract to defendant No. 8 which is a Dutch concern with 90 % of its shareholding held by Dutch Nationals and having association with defendant No. 1.
7. Upon the aforesaid allegations the plaintiffs brought this suit on 9-9-1978 praying for the relief of declaration that the sub-contract between the plaintiffs and defendant No 1 concluded on 18-12- 1977 is binding upon the defendant No. 1 and other defendants. They further prayed for permanent injunction against defendant No. '1 from awarding the sub-contract to any other party including defendant No. 8 except to' the plaintiffs or to undertake to execute the civil works themselves; and further to restrain the engineer of the employer from approving the proposed sub-contract in favour of defendant No. 8. Alongwith the plaint the present application for temporary injunction was also submitted seeking to restrain defen--dant No. 1 from awarding the sub-contract in question to defendant No. 8 or any other party or to undertake to execute the civil works themselves, as well as to restrain defendant-engineer from approving the proposed sub-contract in favour of defendant No. 8. On this application orders in Chambers were passed by me on 10-9-1978 ordering notice to defendants and in the meanwhile restraining defendant No. 1 from awarding the contract in suit to defendant No. 8 or any other party.
8. The application has been mainly resisted by defendant No. 1 on whose behalf a counter affidavit has been filed by its Manager Overseas and Branch Manager, inter alia, controverting the allegations of fraud made by the plaintiffs. It is asserted in the affidavit that defendant No. 3 are not employed by defendant No. 1 as Engineers or Consultants, but were engaged for the purpose of advice and assistance. On this plea it was contended that defendant No. 3 had no authority to take any decision on behalf of defendant No. 1. It is further alleged that an incomplete tender was submitted by the plaintiffs on 10-12-1977 subject to various conditions and further that besides the plaintiffs there were eight other tenderers for the sub-contract including defendant No. 8.
9. Defendant No. 1 also repudiated the allegation of the plaintiffs that theirs was the lowest tender and that it was accepted by defendant No. 1. They went on to plead that no agreement wag entered into between the plaintiffs and defendant No. 1 on 18-12-1977 or any other date. In any case acceptance of the tender on the aforesaid date was premature as the main contract had not yet been awarded to defendant No. 1. As to the inclusion of the, name of the plaintiffs in Appendix 'F of defendant No. 1's tender their plea was that they had recommended the names of four companies to the employer and its engineer as possible sub-contractors. Out of these defendant No. 8 was the only tenderer who had given a complete bid. It was also denied that the sub-contract of the plaintiffs was approved by the employer or its engineer or by the Asian Development Bank and Goverment of Pakistan. According to the defendant No. 1 certain discussion had taken place between the plaintiffs and defendant No. 1 from time to time along with other tenderers with a view to evaluating the tenders which had been submitted to them. During these discussions the plaintiffs were informed that their tender was incomplete and qualified by many unacceptable conditions. They were, therefore, advised that in order to seriously consider their tender it was essential that they should submit a revised and complete tender. Finally after detailed scrutiny of the various bids including that of the plaintiff-defendant No. 1 decided to award the sub-contract to defendant No. 8 and the plaintiffs were informed accordingly. Defendant No. I expressly repudiated that defendant No. 8 was in any manner identified or associated with defendant No. 1. It was also denied that it was a Dutch concern. Defendant No. 3 has supported defendant No. 1 fully.
10. Defen--dant No. 5, the engineers of the employer have also filed counter-affidavit through their Project Manager. It is disclosed in their affidavit that defendant No. 1 had written to the engineer for approval to engage defendant No. 8 as sub-contractor for the work in dispute upon careful and examination and investigation of the case, the engineer came to the conclusion that defendant No. 8 failed to qualify as Pakistani firm within the meaning of clause 4(.l) of the instructions to Tenderers. This decision was conveyed to defendant No. 1 through a letter dated 19-8-1978. No counter affidavit has been filed on behalf of the employer. Defendant No: 8 has, however, filed an affidavit opposing the application for grant of injunction. It is submitted therein that the foreign Dutch shareholding of defendant No. 8 has the approval of the Government of Pakistani and their relevant bodies and authorities. It is also denied that defendant No. 8 has any association with defendant No. 1. It is further disclosed that defendant No. 8 independently and in association with another Dutch company have carried out major Civil and Hydraulic and Marine Engineering and Construction works in Pakistan in the course of their working since the last 21 decades. It was asserted that they are a Pakistani company and their working is regulated in accordance with the law for the time being in force in Pakistan including Foreign Exchange Regulation Act. Defendants Nos. 6 and 7 claim to be associate sub-contractors along with the plaintiffs and support the case of the latter. Their names were also mentioned as associates of plaintiffs in Appendix `F' to the tender of defendant No. 1.
11. The parties have produced a number of documents in support of their respective pleas. Elaborate arguments exhaustively dealing with the points of fact and law were advanced at the bar on either side. However, regard being had to the scope of enquiry and examination of the case for the present purposes it is but necessary only to deal with the case in the light of established norms for the grant of temporary injunctions, namely, prima facie case, irreparable injury and balance of convenience.
12. As will appear from the foregoing narration of facts pleaded by parties, this case involving as it does a building and engineering work of a very substantial value requiring specialized skill and experience, presents questions both of law and fact of complex nature, which are difficult to resolve in a summary enquiry on insufficient material at the pretrial stage. Another aspect of the case that has injected an element of complexity in the matter .Is the fact that the plaintiffs rely for their rights on the sub-contract. Hudson on Building and Engineering Contracts, referring to the subject has stated that the growth of specialization, and hence of sub-contracting, in modern industrialized society makes this one of the most important developing parts of modern contract law. However, in order to satisfy the requirement of the rule of prima facie case it becomes necessary at least to undertake a tentative appraisal of the scope of the case that is presented for trial.
13. Mr. Fazlur Rehman, learned counsel for the plaintiff's at the very outset stated that the plaintiffs do not wish to press the relief of declaration and will, therefore, drop this prayer confining their suit to prohibitory relief---s prayed for. Stating very briefly the case of the plaintiffs is that they have been awarded the sub-contract for the work in question and hence defendant No. 1 cannot be allowed to award the same sub-contract to defendant No. 8 or to any one else or to do the work themselves as that would amount to breach of the contract with the plaintiffs. In this broad frame work of the case the fundamental point was whether a contract between the plaintiffs and defendant No. 1 was concluded. In this regard the basic document on which strong reliance was placed is a letter of 18-12-1977 (Annexure IV to the plaint). This letter was addressed to the plaintiffs by Mr. S. M. Kazmi on behalf of defendant No. 3 and purports to embody the results of the deliberations of a meeting between Mr. Groot and Mr. Bol representing defendant No. 1, Mr. Kazmi representing defendant No. 3 and Mr. 7sidi from the plaintiffs. The material part of this letter stated thus "The terms and conditions of your bid were discussed, and Mr. Groot has in principle agreed to your acceptance as a sub-contractor for Civil Works, subject to the withdrawal of conditions 7 and 12 of your tender bid, and submission of Insurance Bond today or at least, by tomorrow. You have already agreed to the withdrawal of conditions 7 and 12 in spirit of co-operation, and it is hoped that the Insurance Bond would also be furnished by you immediately.
14. The whole deal is subject to the final award of the main contract to Messrs Broekhoven by Messrs Port Qasim Authority."
15. Mr. Rehman, all through his argument strenuously urged that this document unequivocally established the acceptance of the offer of the plaintiffs and sought to weave the case of fraud around this document and the consequential correspondence flowing therefrom. It was argued that in the background of the principles stipulated in the instructions contained in the tender documents of the main contract, enjoining the maximum possible employment of local sub- contractors with a view to prevent the outflow of foreign exchange from the country coupled with the rejection of the name of defendant No. 8, the letter amounted to a representation that the contract was to be awarded to the plaintiffs. As to the award of the sub-contract to the plaintiffs the learned counsel relied upon the following circumstances :-
(i) Acceptance of plaintiff's offer by letter dated 18-12-1977 referred to above as modified by letter of the plaintiffs dated 12-7-1978.
(ii) Rejection of the offer of defendant No. 8 as disqualified on the ground that 90 % of its shareholding was in foreign hands, leaving the plaintiffs alone in the field.
(iii) Furnishing a "Performance Bond" by the plaintiffs (Annexure III to the plaint).
(lv) In view of the above rejection and the plaintiff's name having been approved as entered in Appendix "F" to the tender of defendant No. 1 for the main contract by the employer in consultation with its engineer, no further sanction was necessary.
16. On the other hand, it was urged on behalf of defendant No. 1 as under :- "(i) As to letter dated 18-12-1977 it was denied that defendant No. 3 was the agent of defendant No. 1 having authority to accept the offer, their function being purely to render assistance "in obtaining the lowest Bid and supervision of the same." Mr. Kazmi the author of the letter has explained in his affidavit that the letter was issued to the plaintiffs at their request to enable them to obtain a bid bond from the Insurance Company. Similarly Mr. Groot shown as representing defendant No. 1 was only an engineer having no authority in the matter to take a final decision . Additionally the letter expressly stated that the acceptance was "in principle" and was conditional upon the withdrawal of conditions Nos. 7 and 12 of tender bid.
(it) As to rejection of the name of defendant No. 8, it was urged that this fact can by no stretch be deemed as acceptance of the offer of the plaintiffs. The approval of the names mentioned in Appendix "F"` by virtue of the acceptance of the tender of defendant No. 1 was also not material, for the reason that Appendix "F" clearly indicated that the names were of the "intended sub- contractors". Additionally the names of both the plaintiffs as well as defendant No. 8 were included therein and, therefore, it is inconceivable that the employer was approving the same sub-contract in favour of two sub-contractors. Referring to Term No. 4 of the conditions of the main contract on the subject of sub-letting of a part of the contract was permissible only after written consent of the engineer, whereas the purport and object of disclosure of names of the intended sub-contractors in Appendix "F" was entirely different.
(iii) The bond (Annexure III to the plaint) was ex facie a bid bond as it was a prerequisite for tendering a bid and was not a performance bond."
17. It was pointed out that as per replies to the interrogatories filed by defendant No. 5 the mere mention of the name of the intended sub--contractors in Appendix "F" did not mean approval of the sub-contractors upon acceptance of tender for the main contract, as approval envisaged in the conditions of the contract was a separate and independent approval with reference to the concrete proposal of a sub-contractor as a specific case. Further defendant No. 5 stated that the sub-contract can be considered for approval only upon a request on the part of the main contractor and, therefore, approval cannot be granted at large. . Upon the aforesaid broad submissions on behalf of defendant No. 1, it was contended that no concluded contract bad yet come into being between the defendant No. 1 and the plaintiffs.
18. Further learned counsel for defendant No. 1 referring to letter dated 12-8-1978 addressed by defendant No. 5 to defendant No. 1 submitted that the matter regarding the rejection of defendant No. 8 was not final in so far as defendant No. 5 is prepared to reconsider the question. It was not submitted by the learned counsel for defendant No. 1 that the plaintiff's own letters written after 18- 12-1977 conclusively show that they themselves regarded the sub-contract as still inchoate and at the stage of negotiation for completion of the bid. In this behalf reference was made to the letter of 12-7-1978 (Annexure VI to the plaint) which refers to the bids submitted by the associate sub- contractors of the plaintiffs. In the next letter of the same date (Annexure VII to the plaint) the subject' is shown to be "bid for the construction of Navigational Aids; Port Qasim" and the body of the letter also speaks of the bid submitted by the plaintiffs. Another letter of the same date (Annexure VII (a) to the plaint) purports to contain the revised bid with the details of the terms and extends an assurance on the part of the plaintiffs to provide the performance bond. Lastly letter dated 3-8-1978 (Annexure VIII to the plaint) which was apparently written after the dispute had arisen between the parties also speaks of the bid and makes an admission that an assurance was.
19. Given to the plaintiffs on 15-3-1978 that "as soon as the work is awarded to Messrs Broakhoven, Civil Works will be allotted to Messrs Quality Building Limited". At the close of the letter the plaintiff purport to demand the execution of the formal agreement and the letter of intent.
20. I have set out above the brief outline of the respective contentions of both parties on the question whether the sub-contract was concluded between the plaintiffs and defendant No. 1. But I do not propose to express any opinion on the issue raised in this behalf for two reasons. Firstly, because even if this was a concluded contract it being a contract for rendering services, it was conceded on behalf .Of the plaintiffs that it cannot specifically enforced. Therefore, in terms of clause (f) of section,56, Specific Relief Act, its breach cannot be prevented by an injunction. Secondly] the main, thrust of the argument in support of this application was that the relief was being sought only to enforce the negative covenant comprised in the contract by means of an injunction as provided by section 57 of the Specific Relief Act. In my opinion, this application can, therefore, be disposed of on this point alone.
21. How the suit as it is framed, does not contain a prayer for specific performance of the contract and as already stated, the plaintiffs pray for injunctive relief to restrain the defendant No. 1 from having the work covered by sub-contract done through any other sub-contractor or by themselves. The case of the plaintiffs as put by their learned counsel is that the sub-contract by its very nature was to be regulated and controlled by the terms for the main contract which expressly barred the subletting of the works under it to non-Pakistani contractors as stipulated by Instructions to the Tenders and this embargo, therefore, formed an integral part of the offer of the plaintiffs. Upon acceptance of the offer of the plaintiffs the said stipulation became an express term of the contract providing for a negative agreement that the sub-contract shall not be given to the foreign policy. It was argued that the negative covenant thus stipulated was further re-enforced by the express representation on the part of defendant No. 1 in their letter dated 18-12-1977 through their agent that the contract shall be awarded to the plaintiffs, which itself implies that the contract will not be given to any one else. Thus the case of the plaintiffs was firstly that there was an express negative agreement and in the alternative that the positive agreement spelled out an implied negative covenant, which can be enforced by injunction even though the positive part of the agreement contained in the contract is incapable of specific enforcement.
22. Now section 57 of the Specific Relief Act provides -as follows :-- "Notwithstanding section 56, clause (f ), where a contract comprises an affirmative agreement to a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: Provided that the applicant has not failed to perform the contract in so far as it is binding on him."
23. As far as the first point is concerned, it does not appear to me to be reasonable to apply to section 57 in the manner contended for so as to incorporate what were only intended to be instructions for the guidance of tenderers in connection with the main contract as concrete terms of the sub- contract. The terms of the main contract embodied in the tender documents provide for a built in provision whereby no sub-contract would be effective without the prior written consent of the employer through its engineer. Besides qua the main contract, there does not appear to be any privity between the plaintiffs and defendant No. 1. It is between the employer and the main contractor to work out the terms of the main contract, including the question whether a particular sub-contract be approved or not. Prima facie the plaintiffs being sub-contractors have no locus stands in the matter of approval of a sub-contractor or the qualifications and fitness of a sub-contractor. As to the alternate submissionbased on the implied negative covenant, reliance was placed on the dictum laid down by Scrutton, L. J., in Reigate v. Union Manufacturing Company ((1918) 1,K,B 592) that "a term can only be implied if it is necessary in the business sense to give efficacy to the contract". It was argued that the positive agreement to give the sub-contract to the plaintiffs necessarily implies a negative stipulation not to give the same contract to any one else or to do the contract work by the main contractors themselves. In support of this submission Mr. Rahman placed reliance on two judgments Subba Naidu v. Haji Badaha Sahfeb (I L R 26 Mad. 168and Hurn & Co. v. McDonald (1 L R 36 Cal. 354). The Madras case does not seem to lay down any proposition of law relevant for the present purposes and in any case the decision in that case turned on the peculiar facts of that case. All that was laid down was that the grant of temporary injunction is a matter of discretion of the Court and is , governed by the Code of Civil Procedure. The Calcutta case, however, is a decision in which section 57 of the Specific Relief Act was construed. In that case the respondent was engaged by the appellants a firm of Engineers in Calcutta, as an Assistant in their firm for a period of five years, and it was, inter alia, agreed that he should deligently and to the best of his ability devote himself to the duties enjoined upon him under the contract of service. However, during the term of his engagement, the respondent left the employment of the firm and entered that of another firm.
24. Thereupon the employer firm instituted a suit for injunction to restrain the respondent from serving, working or being employed by any other person or persons and for damages. It was held that although there was no negative condition in the terms of the contract, a negative covenant could be properly implied, under section 57 of the Specific Relief Act, and illustration (d) thereto. Which gave legislative sanction in India to the law laid down by Selborne, L. J. In Wolverhampton and Walsall Railway Co. v. Lonlon & North Western Railway Co. Maclean, C. J., who wrote the judgment for the Court after noticing Lumley v. Magner (1 De G M & G 604) went on to quote the observations of Lord Selborne in Wolverhampton's case to the effect that the dictum laid down in the case of LUMLEY does not limit the ordinary jurisdiction of the Court to do justice between the parties by way of injunction and expressed the opinion that the Court should in all cases look to the substance and not to the form of the contract, in order to determine whether remedy sought is within the purview of common law of the Court of equity. The learned Judge then proceeded to make the following observations :- "Surely when a man says that he will devote himself during a period of years to the business of a particular firm. It does imply that he will not give his services during that period to any other firm. It would be dangerous to hold the contrary. Here to my mind, an injunction is not only the most effective, but the only remedy according to the principles of equity, justice and good conscience."
25. In my opinion. The learned Judge laid down too wide a proposition that every positive undertaking in a contract to do a thing implies a negative agreement not to do the contrary of it. All contracts where the promissor undertakes to do a certain thing, irrespective of whether such a contract is not specifically enforceable by virtue of section 21 of the Specific Relief Act, could be the subject matter of an injunction under section 57 will obviously offend against the provisions. Of section 56(f) of Specific Relief Act. The same point came up for consideration by a D. B. Of this Court in Yousuf Hussain Shirazi v. Muhammad Alam Shaikh (PLD 1966 Kar. 472in somewhat similar circumstances and it was observed :-- "We are inclined to the view that in order that a negative term may be held to be implied and which may be enforced by injunction it must be such which should be severable from the opposite obligation. If we were to hold otherwise it would lead to obvious anomoly, viz.. Where a positive term of an agreement could not be enforced by an injunction because of the reasons stated in section 54 the same object could be indirectly achieved by imputing an implied negative agreement merely out of a positive term and enforce it under the provisions of section 57. We do not think that it was intended by section 57 to destroy the effect of the provisions contained in section 54 and clause (f ) of section 56."
26. The learned Judges quoted the famous exposition of Lindley, L. J., in Whitwood Chemical Co. v.
27. Hardman (1891) 2 Ch. 416which summoned up the position as under :- "Every agreement to do a particular thing, in one sense involved a negative. It involves the negative of doing that which is inconsistent with the thing you are to do . . . . . But it does not at all follow that because a person has agreed to a particular thing, he is, therefore, to be restrained from doing everything else which is inconsistent with it."
28. In Ehram v. Bartholomew ((1898) 1 Ch. 671the employers a business firm of wine merchants sought to enforce the negative covenant by injunction in the contract of service whereby the employee had undertaken not to directly or indirectly engage or employ himself in any other business.
29. Refusing the motion Romer, 1., following the principles laid down in Whitwood Chemical Company's case observed that "to enforce such a general negative stipulation as I find here would be in my opinion a dangerous extension, fur here the stipulation extends to business of any kind, while the negative stipulations enforced in the prior cases, such as Lumley v. Wagner, were confined to special service." The dictum is with equal force applicable in the present case, for, to grant the injunction as prayed for would amount to putting a total prohibition on defendant No. 1 to undertake the works covered by the sub-contract by themselves or through any other sub- contractor resulting in the failure of the main contract as a whole. More recently Russell, J. In Relay v. Ball Burglar & Fire Alarm Co. v. Eisler ((1926) 1 Ch. 609) cited with approval the analysis of all the aforesaid precedent cases made by Warrington, J. In Chapman v. Westerby in the following words :- "Those cases showed that it was essential that the negative stipulation which the Court was asked to enforce should be a stipulation requiring the contracting party not to do some particular act on which the Court can put its finger, and so frame the injunction as to restrain him from doing that act."
30. The latest pronouncement on the point so far as the English Courts are concerned. Can be found in the Page one Records Ltd. v. Briton ((1967) 3 All E R 822which in fact is the only case that has come to my notice of an employee seeking to enforce a negative stipulation against the employer in a service contract. The point of mutually was closely examined in the light of decided cases and injunction prayed for was declined for the reason that by granting the same the Court would be enforcing a contract for personal services indirectly which cannot be done directly. The principle3 laid down in the aforesaid English cases have been followed by the Courts in Sub-continent. See Rubenstain Co. v. Francis (AIR 1930 Lab. 597and S. A. Mills Coron v. Custodian of Evacuee Property (AIR 1957 Bom. 119 Cheshire and Fifoot on the Law of Contract (1976 Edition) at page 616 summed up the latest trend of judicial opinion in English Courts on the Principles postulated in the case of Lumley v. Wagner in the following words :- "The distinction which the Judges have drawn in these cases borders upon sophistry, and suggests that, while bound to follow Lumley v. Wagner when it forms a precise precedent, they are ready to adopt any possible argument to avoid it. Thus in recent years they have insisted that in no circumstances will an injunction be granted unless the defendant has entered into an independent negative stipulation by which he expressly precludes himself from acting inconsistently with his positive contract."
31. Having regard to the terms in which the injunction is prayed for m this case, if granted would leave no option with defendant No. 1 but to perform the contract in specie which the Court can not order in view of the bar contained in section 21 and section 56(f) of the Specific Relief Act. It will amount to doing that indirectly what cannot be done directly. Thus it was held in Ehrman's case already cited that the Courts invariably refuse issue of an injunction if it will inevitably result in the enforcement in specie of a contract not otherwise specifically enforceable.
32. In view of what has been stated above, I have no hesitation to hold that the plaintiffs have failed to make out a prima facie case for the grant of injunctive relief. It was, however, rightly contended on behalf of defen--dant No. 1 that no attempt was made to show whether the balance of convenience lay on the side of the plaintiffs or by withholding the relief of injunction they would be exposed to what is generally called as irreparableinjury. Apparently the loss if any resulting from the breach of a contract of the kind in question in this case would be assessable in terms of money as the obligation in favour of the plaintiffs was to receive pecuniary remuneration for services rendered under the contract. For all these reason the plaintiffs have not made out a case for grant of temporary injunction prayed for.
33. In the result, I dismiss the application and discharge the rule issued earlier.
34. I will now consider the other application for breach of injunction. As already stated Orders in Chambers were passed on the application for interlocutory injunction on 10-9-1978 whereby defendant No. 1 was restrained from awarding the contract in suit to defendant No. 8 or any other party. The grievance of the plaintiffs in this application is that in violation of the Order of the Court the defendant No. 1 have either directly or indirectly awarded part of the contract which is the subject matter of this suit, Le. The job of Soil Investigation to Messrs Associated Drillers Limited."
35. Defendant No. 1 has filed counter affidavit denying the allegation that any part of the contract in suit has been given to any party. They have also specifically denied having awarded part of the contract to Messrs Associated Drillers Limited. It has been pointed out that the ad interim Order was confined only to the awarding of the contract to any one including defendant No. 8 but the purport of the Order was that defendant No. 2 was free to undertake the execution of the work itself.
36. It was stated that on 7-9-1978 (i.e. before Orders passed by the Court), defendant No. 1 entered into a verbal agreement with Messrs Associated Drillers Ltd. For hiring equipment and staff of the said company. In support of this allegation defendant No. I produced the letter dated 8-9-1978 addressed by the defendant No. I to their Consultants and the letter dated 10-9-1978 from Associated Limited to the defendant No. 1 quoting their rates for hiring their equipment and personnel for which payment was to be made on monthly basis. The rates quoted in the Schedule of quotations speak of charges per day in respect of most of the equipment and personnel. On these averments it was contended on behalf of defen--dant No. I that the work of Soil Investigation was being carried on directly by defendant No. 1 with the use of staff and equipment of Messrs Associated Drillers Limited.
37. Now there is no doubt that in terms of the Order dated 10-9-1978, there was no restriction on defendant No. 1 to undertake the execution of the work themselves. The injunction only operated to the effect that the contract for the work in question shall not be awarded to any one else. This position was conceded to by Mr. Fazlur Rehman, learned counsel appearing for the plaintiffs. He, however, argued that in order to save themselves for the consequence of breach of injunction, the defendant No. 1 should have employed the hired personnel on their staff directly, but in this case the contract was given to the firm whose employees carried on the work. Thus, it was contended that this amounted to sub-contracting. I, however, find no. Force in this submission. The obvious intendment and the purport of the order was to permit the defendant No. I to carry on the work themselves but not to award the work by means of a sub-contract. There is no evidence on record that any particular part of the work has been given independently to Messrs Associated Drillers Limited as a sub-contract. From the documents on record it appears that defendant No. I entered into a hire contract with the aforesaid firm. Obviously, in order to undertake the work themselves for which they did not have the necessary technical know-how, equipment or trained personnel on their pay-roll for doing a particular part of the works, they had necessarily to resort to hiring equipment and personnel. To my mind, there would have been a breach of the Order if it had been shown that a particular portion of work constituting an independent sub-work as a whole had been awarded by means of a contract to any party in a manner whereby defendant No. I did not have direct control over such work. But there is no such evidence forthcoming on the record. I have, therefore, come to the conclusion that the plaintiffs have not established that the defendant No. 1 has committed breach of injunction.
38. In the result, I dismiss this application as well