1. KHILJI ARIF HUSSAIN, J.--- Plaintiff filed this application under Order XXXIX, rules 1 and 2, C.P.C. and sought relief to restrain the defendant from finalizing the tender having No,IMP/Urea-01/106, dated 27-1-2006, published in daily Dawn dated 29-1-2006 till final disposal of the main suit.
2. Brief facts for the purpose of deciding the listed application are that the plaintiff, a proprietorship concern, filed suit seeking declaration that the decision of the defendant dated 28-12-2005 is illegal, unfair, unjust and void ab initio and further sought declaration that the plaintiff is entitled and capable of performing the contract for the supply of 25,000 MT urea to the defendant and to direct the defendant to restore the contract for the supply of 25,000 MT urea to the plaintiff and give effect to the terms of the tender. The plaintiff further sought permanent injunction restraining the defendant from giving the tender any more in respect of Tender No,TCP/Urea-50/05 as well, as restraining the defendant from encashment of the bid bond. In the alternative plaintiff prayed to direct the defendant to pay an amount of US $2,000,000 as damages to the name and reputation of the plaintiff including direct damages accrued to the plaintiff by unjustified cancellation of the contract and to refund the amount of bid bond amounting to US $63,000. Along with the suit plaintiff filed application under Order XXXIX, rules 1 and 2, C.P.C. (C.M.A. No,6 of 2006) seeking order to restrain the defendant from encashment of the bid bond which application was listed for hearing on 3-1-2006, when notice was ordered to be issued on 1-2-2006, An application under rule 110 of Sindh Chief Court Rules (OS) was filed by the plaintiff for hearing of the said application at an early date, however, at the request of the plaintiff the matter was adjourned to a date in office.
3. Again on 7-2-2006, another application under rule 110 of Sindh Chief Court Rules (OS) was filed, and office was directed to fix C.M.A. No,6 of 2006 for hearing on 16-2-2006. On 16-2-2006, at the request of the learned counsel for the plaintiff, who wanted to file rejoinder affidavit, the matter was adjourned to 7-3-2006. On 22-2-2006, plaintiff filed listed application along with application under rule 110 of Sindh Chief Court Rules (OS) and while granting order restraining the defendant not to finalize the decision of opening of the tender, notice was issued for 23-2-2006, i,e, on the following day.
4. Mr. S. Mamnoon Hassan, learned counsel for the defendant filed a statement of Muhammad Ashraf, Manager Imports of the defendant and supplied copy to Mr. Anwar Mansoor Khan, learned counsel for the plaintiff.
5. Heard Mr. Anwar Mansoor Khan, learned counsel for the plaintiff, and Mr. S. Mamnoon Hassan, learned counsel for the defendant.
6. In the said statement defendant stated that the plaintiff is not a pre-qualified supplier of the defendant and as such was not entitled to submit any bid in respect of the ,tender in question. It is further stated that tender was opened on 20-2-2006 in presence of the bidders and the Bid Evaluation Committee scrutinized the bids of three bidders found responsive. The final proposal of the three bidders was opened in the morning of 21-2-2006 and out of three above bidders two were found responsive and after taking into consideration of all the aspects and due deliberation contract was awarded to Messrs Trans Ammonia AG Switzerland through their local agents in the International Trading House, Karachi on 21-2-2006 at US $ 249.93 per MT..
7. Mr. Anwar Mansoor Khan, learned counsel for the plaintiff, vehemently argued that defendant acted malafidely and in tinted manner in awarding the tender to the person of their choice and deliberately not allowed the plaintiff to participate in the tender. The learned counsel contended that no counter-affidavit to the listed application has been filed and the statement of the plaintiff on oath has not been rebutted on oath. Learned counsel for the plaintiff further argued that the documents annexed along with the statement have been manipulated by the defendant and backdated documents have been prepared to cause irreparable loss and injury to the plaintiff. He argued that it is humanly impossible that if the tender was opened on 21-2-2006, then acceptance letter can be issued on the same day for the increased quantity and thereafter on the same day the successful bidder (as alleged by the defendant) nominated another vessel and asked for the confirmation from the defendant by 22-2-2006, but acceptance was communicated on the same date, i,e, 21-2-2006.
8. Mr. Anwar Mansoor Khan, learned Advocate for the plaintiff, relied upon the news item appeared in daily Dawn dated 21-2-2006 wherein it is stated that opening of the tender had been delayed again. He argued that till 21-2-2006 tender was not opened. It was argued by Mr. Anwar Mansoor Khan learned counsel for the plaintiff that vide notice dated 29-1-2006 defendant invited tender for purchase of 50,000 MT urea and tender was to be opened on 13-2-2006. The plaintiff purchased the tender document on 10-2-2006 and in the evening when having information that plaintiff is interested to participate in the tender the defendant malafidely at about 6-50 p.m. on the same date informed the plaintiff about the amendment of clause [11(b)], 13, 14 and 17 of the tender document and being Saturday and Sunday holiday in Belgium, where principal of plaintiff carried on business the plaintiff on 11-2-2006 informed the defendant that such amendment could not be conveyed to the principal and requested to extend the date of opening of tender for considerable time so the required amendment mail by the defendant can be timely conveyed to international supplier/principles. On 13-2-2006, the defendant informed all parties who purchased urea tender that tender which was to be opened on Monday, the 13th February, 2006 is postponed. Mr. Anwar Mansoor Khan argued that after the postponement of the tender defendant malafidely did not inform the plaintiff about the new date of opening of tender and secretly opened the tender. He argued that since the defendant had not acted fairly and in transparent manner being Government Organization while accepting the tender of the other party, the defendant should be restrained from finalizing the tender. In support of his contention learned Advocate relied upon Zafar Ali Shah's case PLD 2000 SC 869; Messrs Airport: Support Services v. The Airport Manager 1998 SCM R 2268, (1997) 7 Supreme Court Cases 463. Learned Advocate further relied upon section 24-A of General Clauses Act.
9. Mr. S. Mamnoon Hassan, learned counsel for the defendant, in reply argued that the suit was filed on 31-12-2005 by the plaintiff as local agent in respect of the grievance about the decision of the defendant on 28-12-2005 and seeking specific performance of the contract for supply of 25,000 MT urea has no nexus with Tender No,6 of 2006 and the present application is not maintainable.
10. Learned counsel for the defendant argued that earlier also plaintiff filed application under Order XXXIX, rules 1 and 2, C.P.C., on which, after notice, defendant filed counter-affidavit and no rejoinder affidavit has been filed till date though time has been granted to him. It is contended by Mr. S. Mamnoon Hassan, learned counsel for the defendant, that the plaintiff was not qualified to participate in the tender invited by the defendant as such there was no occasion for calling the plaintiff to participate in tender even if he has managed to purchase the tender documents. He further argued that the plaintiff invited application for pre-qualification of the interested parties to participate in the tender for purchase of urea sometime in December, 2005 and only pre-qualified suppliers are eligible to participate in Tender No,6/2006 and since plaintiff was not eligible to participate in the tender the plaintiff has no cause to make grievance for award of the contract to third party. Learned Advocate for the defendant argued that the order of the Court was communicated to the defendant at about 12-30 p.m. on 22-2-2006 as well as to him whereas copy of the listed application has been received by him at about 5 p.m. in the evening and accordingly it was not possible for him to prepare counter-affidavit and file the same and in view of the urgency of the matter he asked the defendant to file statement giving details of the fact which he had placed on record. Learned Advocate argued that the tender was opened on 20-2-2006 in presence of the bidders and technical proposals of pre-qualified suppliers who had offered their bids were considered by the Bid Evaluation Committee as per procedure prescribed by Public Procurement Rules, 2004. The bids of three bidders were found responsive. The financial proposals of the above three bidders were opened in the morning of 21-2-2006 and out of the three bidders two were found responsive and Purchase and Price Evaluation Committee consisting of representatives of Ministries of Finance and Food and Agriculture besides the representative of Urea Manufacturing Factories, and the defendant after due deliberation awarded contract to Messrs Transammonia AG Switzerland through their local agent by the International Trading House Karachi. Defendant along with statement produced photocopy of letter dated 21-2-2006 of the defendant to Messrs International Trading House Karachi that their offer dated 20-2-2006 for the quantity of 40,000 MT urea has been accepted. On the same date the International Trading House, Karachi addressed letter to defendant that as per their instructions for increase in quantity from 40,000 MT urea to 50,000 MT urea informed that to ship 50,000 MT urea they need to change the vessel as per attached change nomination. The defendant replied to the letter and conveyed his acceptance.
11. Mr. S. Mamnoon Hassan, learned counsel for the defendant, in support of his contention stated that the plaintiff is not entitled for injunction.
12. It is further contended by the learned counsel for the defendant that the plaintiff was informed by the defendant that his principal is not qualified for participation, vide letter, dated 17-1-1985 and present application was filed with mala fide intentions.
13. Mr. S. Mamnoon Hassan, learned counsel for the defendant, further contended that the suit, on the face of it, is not maintainable under Order XXX, rule 10, C.P.C. as the same has been filed by a proprietorship concern and not by the proprietor himself. In support of his contention he relied upon the case of Bhagavan Manaji Marwadi and others v. Hiraji Premaji Marwadi AIR 1932 Born. 516; Messrs M.A. Majeed Khan v. Karachi Water and Sewerage Board and others PLD 2002 Kai. 315.
14. Learned counsel for the defendant argued that the plaintiff has no prima facie case, nor any cause of action has accrued to the plaintiff in respect of Tender No,1/06, which, according to the learned counsel, is not subject-matter of the suit and further that the balance of convenience lies in favour of the defendant and plaintiff will not suffer irreparable loss and injury if the injunction application is not granted. In support of his contention learned counsel relied upon the cases of Muhammad Javaid Iqbal v. The Government of Pakistan 1974 SCM R 481; Messrs Kohinoor Trading (Pvt.) Ltd. v.
15. Magrani Trading Co. and others Lashkari and 4 others v. The State PLD 1981 Kar. 1; Euro Distributors Establishment, Lugano, Switzerland v. Bank of Credit and Commerce International, London and others 1982 CLC 2369; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhry and 2 others PLD 1961 .SC 531; Muhammad Farooq Khan v. Sulaiman A.G. Panjwani PLD 1977 Kar. 88; The National Electric Radio, Refrigeration Co. Pakistan Ltd., Karachi v. Messrs Sachiliae Lauro, Naples, Italy and 3 others PLD 1977 Kar. 264 and Tauseef Corporation (Pvt.) Ltd. v. Lahore Development Authority and others 2002 SCM R 1269.
16. In reply Mr. Anwar Mansoor Khan, learned counsel for the plaintiff, argued that the defendant invited tender for the purchase of 75,000 MT urea, out of which 25,000 MT urea was initially awarded to plaintiff and present 50,000 MT urea is part and parcel of the initial bid invited by the defendant and represent the quantity of the urea left in the previous tender. It is contended that Tender No,1/06 has been invited by the defendant only with the object to frustrate the pending suit.
17. The learned counsel drew my attention to Public Procurement Rules, 2004 and argued that the present tender has been invited in violation of said Rules. It is argued by the learned counsel that the plaintiff has not been allowed to participate in the tender treating him as defaulter, whereas in fact the plaintiff has not committed any default in performance of the contract awarded by the defendant. It is yet to be decided whether the plaintiff is a defaulter or not. In reply to the objection of Mr. S. Mamnoon Hassan, learned counsel for the defendant, that the plaintiff's principal was not qualified to participate in the tender, learned counsel argued that the very fact that the plaintiff's tender was initially accepted by the defendant itself establishes that the plaintiff's principal was pre-qualified to participate in the tender. It was contended by the learned counsel that till the execution of integral pact between the defendant and party in whose favour letter of intent was issued, defendant cannot say that a concluded binding contract came into existence between the parties. It was argued that in case application as prayed is not granted plaintiff will be put in more inconvenience than the defendant as in any case the defendant will get the urea either from the plaintiff or from any other party but if the plaintiff is not allowed, then plaintiff will likely to face irreparable loss and injury. The learned counsel relied upon the cases reported in Muhammad Iqbal v. Fatima Jinnah Medical College and another 1989 M LD 4237 and Rehim Khan v. Division Superintendent, Pakistan Railways, Rawalpindi and another 2003 YLR 63.
18. I have taken into consideration respective arguments advanced by the learned counsel for the parties. I will first deal with the question whether the quantity of 50,000 MT urea offered by the defendant through Tender No,1/06 in any way is subject-matter of the suit or not. From the perusal of the plaint and documents filed along with it, it appears that the defendant by public notice invited bids from the interested pre-qualified foreign supplier for the supply of 75,000 MT urea, to be opened on 20-12-2005. The plaintiff purchased the tender documents and offered to supply 25,000 MT urea at the rate of US $ 251.00/MT. It appears that after negotiation plaintiff reduced the price from US$ 251 to 250/MT and his offer for supply of 25,000 MT urea granular at US$ 250/MT CFFO Karachi was accepted by the defendant on 21-12-2005. In terms of the tender accepted by the defendant, plaintiff was required to furnish performance bond, but the same was not furnished and defendant vide its letter dated 28-12-2005 cancelled the contract and informed the plaintiff about the encashment of the bid bond amount. I am not going in detail whether the plaintiff has committed breach of the contract in furnishing performance bond or not as the same will adversely affect pending application, which is not listed for hearing. From the above facts it appears that though the defendant had invited tender for the purchase of 75,000 MT urea, but in response to said tender the plaintiff has offered to supply only 25,000 MT urea and further from the perusal of the plaint it appears that entire cause in the matter revolves around the dispute about the award of the contract in respect of 25,000 MT urea and its cancellation by the defendant.
19. After publication of tender notice inviting bids from the interested TCP pre-qualified foreign suppliers on 27-1-2006, the plaintiff has not filed any application seeking to restrain the defendant from inviting the tender if he had any right in the quantity approved by the defendant. The plaintiff purchased the tender documents as per paragraph 8 of the affidavit in support of the application and not objected for inviting the bids by the defendant. It also appears from the record on the file that though the plaintiff has purchased the tender documents, but did not submit the same so as to participate in the tender, nor it is the case of the plaintiff that he was not allowed to participate except that the plaintiff was not informed about the date of opening of the tender. Initially tender was to be opened on 13-2-2006 at 1100 hours, but the plaintiff did not submit any bid although tender was not opened on 13-2-2006 and according to the plaintiff, defendant informed all the parties about the postponement of the tender on 13-2-2006 at 1-09 p.m., i,e, after the time of opening of the tender. As I have held hereinabove that the quantity of 50,000 MT urea, offered by the defendant through Tender No,1/06 is not the subject-matter of the suit, injunction to restrain the defendant cannot be granted. My view finds support from the case of Muhammad Jawed 'Iqbal v.
20. Government of Pakistan 1974 SCM R 481, where the Honourable Supreme Court has held that "It is, therefore, difficult to understand how the petitioner could seek interlocutory injunction with regard to a matter which is not subject-matter of the suit".
21. The application on this sole ground is liable to be dismissed. However, I would like to discuss various points taken by the learned counsel for the parties. There is no cavil to the proposition advanced by the learned counsel for the plaintiff that a corporate body controlled by the Government ought to have acted fairly in a transparent manner and their acts and deeds should not be tinted with malice and ulterior motives and I respectfully agree to the principle laid down by the Court in the case of Zafar Ali Shah PLD 2000 SC 869 and Messrs Airport Support Services' case 1998 SCM R 2268. I would like to add that the Court never hesitate in setting aside any order passed by an organization or authority which, if established, has been passed with ulterior motives and organization has not acted in a transparent manner or acted to benefit persons of their choice at the cost of Government exchequer, but nonetheless burden lies upon the party who alleged malice.
22. However, it is also for the organizations, controlled by the Government, to place on record prima facie evidence that while discharging their duties dealing with the "public money", they have acted fairly and in transparent manner. In the instant case plaintiff placed on record public notice inviting applications from foreign urea suppliers/exporters for pre-qualification. The defendant also placed on record that on 17-1-2006, by which they informed the plaintiff that their pre-qualification application dated 13-12-2005 was considered by the Pre-qualification Committee and since principal of the plaintiff, namely, Messrs Omaco B.B.B.A. have failed to supply adequate documentary evidence to prove themselves as suppliers of urea as required in TCP Pre- qualification criteria, he has not been pre-qualified. This information that the plaintiff's principal is not qualified to participate was communicated to the plaintiff much before opening of the tender and invitation of the bids. In view of these facts prima facie defendant established that they have acted fairly in not calling the plaintiff to participate in the tender dated 27-1-2006, i,e, almost ten days after the plaintiff was informed that his principal is not qualified. The plaintiff has not called in question decision of the defendant for not accepting their request for pre-qualification.
23. From the letter, dated 17-1-2006, it appears that plaintiff's foreign principal was not refused request for pre-qualification because of litigation with defendant, but for want of evidence as supplier of urea, as required in pre-qualification notice. In view of this fact principle laid down in the case of Premier Mercantile Services (Pvt.) Ltd. v. Trustees of Port of Karachi 2003 M LD 1064 is not attracted to the facts of the case, wherein party's tender was not considered due to litigation.
24. As regards the cases of Rehim Khan v. Divisional Superintendent, Pakistan Railway 2003 YLR 63 and Muhammad Iqbal v. Fatima Jinnah Medical College 1989 MLD 423 the question decided by Court of 'blacklisting the party without affording him any opportunity to show cause.
25. In the case of Balochistan Construction Co. v. Port Qasim Authority 2001 YLR 2716, the petitioner was not allowed to participate in the tender without assigning any reason, and the Court directed the respondent to communicate the reasons to petitioner for declining the petitioner to participate in the tender.
26. In the instant case respondent on 17-1-2006 informed the plaintiff that his principal's application for pre-qualification is not accepted for want of evidence to prove themselves as supplier of urea as required in pre-qualification notice.
27. As regards the question whether there was any binding contract existed between the defendant and the bidder, whose bid has been accepted. I would not like to discuss this question in detail for the reason that the bidder, whose bid has been accepted by the defendant, is not party to these proceedings and any findings whether there is a binding contract or not would likely to effect his interest.
28. It is an admitted position that the plaintiff has submitted bid as a local agent of, its foreign principal and I am afraid that a suit for specific performance of the contract executed or entered into by agent on behalf of the principal can be enforced by the agent in his own name. Section 230 of the Contract Act puts a bar on agent to personally enforce contract entered into by him on behalf of his principal. However, I am leaving this question to be addressed at appropriate time as none of the parties argued on this point.
29. For the foregoing reasons the plaintiff failed to make out prima facie case.
30. Coming to the question of irreparable loss, from the record it appears that the plaintiff offered to supply the urea at the rate of US $250/MT, whereas defendant have accepted offer of another party at the rate of US $ 249.93/MT and whatever the loss suffered by the plaintiff due to non- acceptance of its offer can easily be compensated in terms of money. As regards the question of convenience and inconvenience of the parties, if the defendant is restrained from importing the urea, same is likely to affect on agricultural production in Pakistan and further defendant is purchasing the urea at a price lesser than the price offered by the plaintiff, the balance of inconvenience lies in favour of the defendant.
31. For the foregoing reasons listed application (C.M.A. No,1116 of 2006) is dismissed.