C.M.A. No,7924 of 1999 ' This is an application under Order 39, rules 1 and 2 read with sections 94 and 151, C.P.C. Whereby the plaintiffs are seeking a restraining order against the defendants from awarding the Channel Maintenance Dredging' Works for Port Muhammad Qasim for the year, 1999-2000 to any person other than the plaintiffs.
2. The parties entered into a contract agreement dated 22-1-1999 Annexure "P-2" to the plaint for carrying out the Channel Maintenance Dredging Work 1998-99 at Port Qasim. Per clause (3) of the agreement the letter of intent dated 26-12-1998, Annexure "P.1", was to be read and construed as part of this agreement. Clause (2)(p) of Annexure. "P.1" provided that the option for undertaking the Dredging Works for 1999-2000 shall rest with P.Q.A. However, the cut of date for instruction for Dredging Works 1999-2000 shall be 30th June, 1999".
3. The case of the plaintiff is that on assurances of the defendant that the Dredging contract for the year 1999-2000 would be awarded to the plaintiff he agreed at the lowest rates and also on the legitimate expectancy based on firm assurances given by the defendant for the contract of year 1999-2000 he invested substantial amount and fully mobilized and equipped to carry out the contracted work for two years ending in June, year, 2000; the plaintiff carried out the work for 1998- 99 to the satisfaction of the defendants without any complaints; the defendants have not exercised the option within the stipulated period in negative, and therefore, the plaintiff became legally and contractually entitled to the grant of Dredging Work for the year 1999-2000 also; the defendants in breach of the assurances given to the plaintiff invited fresh tenders for the Dredging work for the year 1999-2000; the plaintiff's legal notice dated 10-9-1999 addressed to the defendants was replied that the matter is under the "acute consideration of the Board of P.Q.A."; the defendants some higher ups are hostile to the plaintiff for motivated reasons and are bent upon with ulterior motives to by-pass the plaintiff and award the contract to their favourites. The plaintiff along with the affidavit in rejoinder filed summary submitted for the Board of the defendant on the subject contract and in that he has relied upon the various paragraphs to show that the said summary has recommended to the Board for awarding the contract for the year 1999-2000 to the plaintiff. A copy of decision of the Board of the defendants has also been relied upon in the affidavit in rejoinder wherein it was resolved that "(iv) Extension of Channel Maintenance Dredging contract 1998-99 to the 1999-2000 Dredging season approved. The contractor i,e, Balochistan Construction Limited to be informed accordingly by 30th June, 1999 subject to the condition that the contractor will get all his disputes with Customs Authorities resolved by 31st, July, 1999 and also submitted duly authenticated by authorities an agreement with procurement of the Dredger with same specifications. In the event of the contractor's inability to meet this dead line otherwise Channel Maintenance work are to be retendered by July 7, 1999". Apart of the above the plaintiff have also placed before the Court letters dated 15-10-1999 and 18-10-1999. The first is addressed by P.Q.A. To the plaintiff whereby the decision of the Board was communicated and defendants were asked to confirm whether they were willing to carry out the Dredging for the year 1999-, 2000 on the conditions mentioned in the 'letter; and the second is the plaintiff's reply wherein in para. 2 he had stated that "We hereby reiterate our confirmation of the said Dredging work (1999-2000) in terms of LOI (letter of intent) dated 26-12-1998", and in the last para. He stated that "as regards items (d), (h), and (i) of your letter under reply, since they are new, we would suggest that same may be sorted out by mutual discussions between P.Q.A. And ourselves". It is asserted on behalf of the plaintiff that in fact the defendants have offered the contract by letter, dated 15-10-1999 and the same has been accepted by the plaintiffs by letter dated 18-10-1999 and therefore, the contract stands executed between the parties and as such the defendants cannot be allowed to commit a breach by not awarding the contract to the plaintiffs. In support of the case of the plaintiff the cases of Mst. Narmeen S. Hussain v. The Administrator, Abandoned Properties Management and another PLD 1999 Kar. 250, Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283 and Messrs Dadabhoy Investments (Pvt.)
Limited Karachi v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and another PLD 1995 Kar. 33 have been relied upon.
4. The case of the defendant is that the suit is barred under section 21 of the Specific Relief Act; the application cannot be granted as the same would lead to the grant of final relief claimed in the suit; the work carried out by the plaintiff was not satisfactory and the plaintiff's performance was marked with undue delays; and in support of this Annexure "CA-2" to "CA-6" to the counter-affidavit has been relied upon; the LOI dated 26-12-1998 was issued for the contract of year 1998-99 and not for the future contract for the year 1999-2000; it is denied that any assurances were given to the plaintiff for the work for the year 1999-2000; it is also denied that the plaintiff invested a sum of Rs,35 (Thirty-five) million to carry out the work for two years; the contract document clearly provided that the contract was for the year 1998-99 and the P.Q.A. May, at its option award the contract for the year 1999-2000; however, such option has not been exercised by the defendant in favour of the plaintiff and as such no award should be deemed to have been made by the defendant in favour of the plaintiff; the defendants have invited the fresh tenders for the work for the year 19992000; the defendants were not under legal obligation to notify the plaintiff of their intention of exercising the option in negative respect of the contract for the year 1999-2000; such reading of the option clause is unwarranted and contrary to the clear wording thereof; the plaintiffs are not entitled to the award of the contract for the year 1999-2000; the plaintiffs failed to make a prima facie case; balance of convenience is not in favour of the plaintiffs nor there is any likelihood of irreparable loss to them.
5. I considered the cases of the parties and also the submissions made on their behalf. The plaintiffs have relied upon clause 2(p) of the letter of intent dated 26-12-1998 and submitted that since the defendants have failed to exercise their right in negative on or before 30-6-1999, therefore, the option by the defendant is deemed to have been exercised in favour of the plaintiff and as a result of which the contract can only be awarded to the plaintiff only; that in the inter- departmental correspondence/exchange of the defendant recommended that the contract for the year 1999-2000 be awarded to the plaintiff; that in view of the contents of the letters dated 15- 10-1999 and 18-10-1999 exchanged between the parties the contract stand offered and accepted between the parties and the defendants are bound to award the same to the plaintiffs; that in the last tenders for the year 1999-2000 the plaintiff have offered the lowest bid and therefore, they are entitled for the award of the contract.
6. As to the contention about the option clause it is clear that the exercise of the right of option to award the contract for the year 19992000 rested with the defendant unconditionally and the plaintiffs have no right to compel the defendants to exercise the same in their favour the contention of the plaintiffs that since the defendant failed to exercise their right in negative the defendants deemed to have exercised the option in favour of the plaintiff is perhaps not sustainable as the wording of the clause itself is very clear and the proposition suggested on behalf of the plaintiff cannot be read into the same. As to the inter-departmental correspondence/exchanges of the defendant it may be appreciated that such correspondence and exchanges are the part of the normal course of business and in that number of suggestions and recommendations are being made by one department and rejected by the other and unless those are officially communicated and forwarded the same are of no help to the plaintiffs; if such internal correspondence/recommendations of the departments are made binding on the defendant by the outsiders perhaps the entire working of inter-department exchanges/correspondence will come to a stand still and the department will not reduce any suggestion or recommendation in writing fearing that the same will be made binding upon them by the outsiders; in view of the above the internal correspondence referred to by the plaintiff is not binding on the defendants and the plaintiffs legally cannot seek protection thereof to improve their case; the letter, dated 15-10-1999 made no reference to LOI dated 26-12-1998 but the plaintiff while replying the same by letter dated 18-10-1999 had reserved his right under the said L.O.I. And also did not unconditionally accepted the items (d), (h) and (i) of the plaintiffs letter dated 15-10-1999; it cannot therefore, be held that there was an offer and an unconditional acceptance which will amount to execution of contract between the parties. None of the parties have placed before the Court the details of the tender for the year 1999-2000 and therefore, no comments can be made in respect. Thereof.
7. In view of the above the plaintiffs have failed to establish a prima facie case in their favour for injunction. The balance of convenience is also in favour of the defendant and not that of plaintiff because the defendants are a public corporation where public money is involved; at the expiry of the contract for the year 1998-99 it is not only the right of the defendants but a bounden duty to invite the tenders openly in a transparent manner so that on the one hand the public corporation should get the maximum benefit and on the other the all persons dealing in the similar business should be allowed to participate as bidder into the tender proceedings. The plaintiffs alleged that they have. Invested huge sum of money on the mobilization for carrying out the contract for two years i,e, 1998-99 and 1999-2000 on the expectation that they will definitely be awarded contract for 1999-2000 by the defendants. The plaintiffs are in a position to assess their damages and can made their claim against the defendants, if so permitted by law; apart of the above they can also participate into the proceedings of fresh tenders and therefore, it cannot be said that the plaintiffs are likely to suffer irreparable loss; on the other hand if the defendants are made to award the contract only to the plaintiffs it will be the public exchequer which is likely to suffer irreparable loss and not the plaintiffs. With great respect of facts of the case-law placed on behalf of the plaintiff are not applicable to the facts of the present case and so of no help to the case of the plaintiff.
8. In the circumstances the tender proceedings, if any taken, as to the job for 1999-2000 are set aside and the defendants are directed to act fairly, justly and invite the fresh tenders in a transparent manner affording all the bidders including the plaintiffs, in case they choose to participate in the tender proceedings, an opportunity to offer their bids and thereafter take a decision strictly in accordance with law and keeping in view the interest of the public exchequer.
' In terms of the above the application is disposed of.