' CH. IJAZ AHMAD, J.---The brief facts out of which the present intra-Court appeal arises are that appellant was awarded contract by the respondents for supply of pipes to the respondents on 5- 6-1995. The appellant had to complete the work within 12 months. The appellant imported the pipes under the direction of the respondents and supplied to the respondents. The respondents failed to give benefit of section 64-A of Sale of Goods Act to the appellant. The appellant being aggrieved submitted a representation before the respondents which was forwarded by respondents Nos. 2 to 5 but the same was finally not approved by respondent No, 1 vide order dated 11-3-1997. The appellant being aggrieved filed Writ Petition No,25995 of 1997 with the following prayer:-- "In view of the above circumstances, it is most respectfully prayed that the petition may be accepted and an appropriate writ may be issued in the following terms:---
(i) That the decision of respondent No,1 communicated to the petitioner vide letter No,CDA/W&S(R/A)ZoneAccts/W-II/148(486) /153 dated 11-3-1997 with regard to the refusal of the respondent No,1 to make the payment of Rs.1,01,65.143 the amount due to the petitioner on account of statutory increase in taxes is 'absolutely illegal and without lawful authority. And the petitioner is entitled to recover the aforesaid amount from the respondents on account of statutory increase in duties and taxes and devaluation in Pak currency.
(ii) (ii) Direction be issued to the respondent No,1 to make payment of Rs.1,01,65,143 to the petitioner with mark-up at the rate of 23 per cent. Per annum and also to immediately pay the amount of verified bills of the petitioner for the work done withheld by the respondents for the stated reason "lack of funds".
2. Learned counsel of the appellant submits that the appellant was awarded a contract by the respondents on 5-6-1995 for replacement of 30" dia and 24" dia PRCC Line with ductile cast iron pipe for a sum of Rs.8.57.06.008.87. The appellant had to complete the same within 12 months. The ingredients of section 64-A of Sale of Goods Act, 1930 are applicable to facts of this case as the appellant had to supply the pipe to the respondents as is evident from the schedule agreed between the parties and in terms of the agreement arrived between the parties wherein the word 'provide' is mentioned and according to Blacks Law Dictionary the word ' provide' means 'to make'.
The word 'goods' also means according to Blacks Law Dictionary 'to supply'. Therefore, learned Single Judge erred in law to non-suit the appellant.
3. Learned counsel of the respondents submits that learned Single Judge was justified to dismiss the Constitutional petition as building contract was executed between the appellant and the respondents as is evident from the terms of the agreement, schedule and the representation filed by the appellant before the respondents. He further submits that appellant wants enforcement of contract through Constitutional petition. Therefore, Constitutional petition was also not maintainable.
4. Learned counsel of the appellant in rebutal submits that appellant wants enforcement of contractual obligations wherein the facts are admitted between the parties. Therefore, Constitutional petition is maintainable. In support of his contention he relied upon Province of Punjab v. Messrs Chaudhry Construction Company 2002 YLR 1587.
5. We have considered the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce relevant terms and conditions of the agreement, schedule for performing the work and application filed by the appellant before the respondent which are as follows:- 'Agreement'
(i) Name of work: Replacement of 30" and 24" PRCC line with 32" and 24" DI Pipe line from 7 MGR to S7/2.
(ii) Estimated cost: Rs.556.53,252/51
(1) Contract documents consisting of details plans, complete specifications, schedule of quantities of various classes of work to be done and the set of conditions of contract to be completed with by the persons whose tenders may be accepted, which will also be found printed in the form of tenders, can be seen at Divisional Office during office houri in the working days.
(2) ----------
(3) ----------
(4) ----------
(5) ---------
(6) The contractors whose tender is accepted will be required to furnish security for the due fulfilment of his contract consisting of deduction of 10% from the monthly payments to be made on account of work done. The earnest money will be attached with tender in shape of call deposit and it will be treated as part of security.
(7) ----------
(8) The contractor should not stipulate any additional condition and tender containing any such condition may not be considered and may be summarily rejected.
(13) No escalation shall be paid to contractor in any case. The rates offered/quoted by the firm/ contractor shall be considered inclusive of all increases in the rates/prices of material and labour till the completion of project in all respect.
(14)
(15)
(16)
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(19) Bulldozer/Excavator shall not be used on works/projects within territorial limits of Islamabad without obtaining prior written permission from Director W and S, Director, Maintenance, Director Electrical and Director Roads, CDA Islamabad.
(20)
(21)
(22) The Contractor are advised in their own interest to firm up their prices correctly before quoting the percentages in the tender. It must be clearly` understood that a percentage once filled cannot be revised upwards by the contractor by overwriting/ cutting in the tender or through a letter attached with the tender. Tender containing such revisions of offers will be rejected irrespective of their financial implications.
(23)The contractor should furnish a certificate that he has cleared all professional tax payable to him issued by the Excise and Taxation Department. `Schedule'
No. Description of Qty. ItemRate Unit Amount Excavation for founda--tion trenches and drains in all kinds of soil i.e. gravelly and murrum soil, wet silt, clay or mud conglometa-- tion of gravel and coulders, soft sandy or disintegrated and hard rock by hammering, chiseling and jumper work etc. complete i.e. stacking the serviceable and un--- serviceable material separately and back filling the excavated material in foundation plinth or under floor i.e. breaking clods, watering consolidation by ramming in layers not exceeding in depth to full compaction and disposal of surplus excavated stuff as directed lead up to any chain and lift as under:-- 460,211 Cft.
Rs.115.20 (Rs.
One hundred fifteen/20 Ps.)% Cft Rs.530.163 0-5 Rs. 125/64 % Cft Per Hundred Cubic feet. 5'-8' 160386 Cft.
(Rs. One hundred twenty five/64 Ps.)
Rs. 201,50 6/97 ' In case aforesaid terms and conditions of agreement, clauses of schedule and application be put in a juxtaposition then it is crystal clear that the agreement was executed between the parties with regard to the construction of work and not supply of goods. It is settled proposition of law that document must be read as a whole in order to determine its true nature, import and scope as law laid down in the following judgments:-- "Sahibzada Mansoor Ahmad's case 1993 M LD 2529 ' Abdur Razzaq's case 1995 SCM R 1489"
' In case, as mentioned above, the documents be read as a whole then only one net result emerges out of the reading of the document that it is building contract between the parties. Learned Single Judge was justified to come to the conclusion that section 64-A of Sale of Goods Act is not attracted as the ingredients of section 645-A are not applicable in the present case which is in consonance with the law laid down in the State of Madras v. Messrs. Gannon Dunkeley and Company AIR 1958 SC . The relevant observation is as follows:-- "In a building contract, the agreement between the parties is that the contractor should construct a building according to the specifications contained in the agreement, and in consideration therefore. Receive payment as provided therein, and as will C presently be shown there is in such an agreement neither a contract to sell the materials used in the construction, nor does property pass therein as movables. It is therefore, impossible to maintain that there is implicit in a building contract a sale of materials as understood in law.'
"But we are concerned here with a building contract, and in the case of such a contra of, the theory that it can be broken up into component parts and as regards one of them it can be said that there is a sale must fail both on the grounds that there is no agreement to sell materials as such.
And that property in them does not pass as movables."
' In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the learned Single Judge. Therefore, this intra-Court appeal has no merit and the same is dismissed.