' JAWWAD S. KHAWAJA, J.---This appeal has been filed by the plaintiffs under section 33(1) of the Privatization Commission Ordinance of 2000 to impugn the judgment of a learned Single Bench dated 23-11-2005, whereby a plaint filed by the appellants against the Privatization Commission (respondent No,1) and others has been rejected.
2. The facts of the case have, in some detail, been set out in the impugned judgment and need not, therefore, be reproduced here in extenso.
3. Very briefly, however, we may give an outline of the parties arrayed before us and the nature of the dispute between them. The appellants/plaintiffs were the original majority share holders of Mustehkam Cement Limited (respondent No,3) hereinafter referred to as MCL. The shares of the appellants in MCL were taken over by the Federal Government (respondent No,4) through an order dated 29-11-1973 issued under President's Order No,1 of 1972, also known as the Economic Reforms Order. Subsequently, the State Cement Corporation of Pakistan (respondent No,2) was created by the Federal Government as a corporate entity to hold the taken over shares of MCL along with the shares of certain other cement manufacturing companies.
4. On 16-9-1978, President's Order No,12 of 1978, also known as the Transfer of Managed Establishments Order, was promulgated. It provided a framework, inter alia, for the divestment of shares acquired by the Government under the Economic Reforms Order. The Privatization Commission (respondent No,1), as an agency of the Federal Government, undertook the process of divestment. It invited bids for the sale of 75.29% of the total outstanding shares of MCL. Four bids, in response to the invitation, were received by the Privatization Commission on 17-10-1991. The highest bid of Rs,127 per share was submitted by Calicon (Private) Limited. The appellants also made a bid, which, at 17-12- rupees per share, was the lowest of four bids received. For the present purposes, it is not necessary to refer to the other two bids.
5. The appellants, as original owners of the shan 3 in question, asserted their right to match the highest la Id This right was claimed on the basis of Article 4 of the Trals of Managed Establishments Order. For ease of reference, the relevant part of Article 4 is reproduced as under:- "4. Transfer of shares and proprietary interests, etc.--
(1) If the Federal Government considers it necessary in the public interest to transfer the shares, the Federal Government may, through a public advertisement, invite bids for the transfer of the shares or proprietary interest.
(2) On receipt of bids in pursuance of an invitation under clause (1), the Federal Government shall offer the transfer of the shares or proprietary interests to the persons specified in the Schedule on the highest bid so received and on such terms and conditions as it may deem fit.
(3) If the persons specified in the Schedule do not accept the offer made under clause (2) within a specified 'time the Federal Government may transfer the same to such persons, and on such terms and conditions, as it may deem fit.
(4) By way of explanation we may note that the appellants, by virtue of being the original owners of the shares in question, were persons specified in the Schedule to the Transfer of Managed Establishments Order. We may also add that the right granted to the appellants under Article 4 above is not disputed by the respondents.
6. Differences arose between the appellants and the Privatization Commission in respect of the appellants desires to enforce their rights under Article 4, reproduced above. It is not necessary for us to give details of the controversy, which, at that time, arose between the appellants and the Privatization Commission. It will suffice, for the present, to note that the appellants filed two writ petitions to enforce the aforesaid right. The litigation, so initiated, culminated in the judgment of the Honourable Supreme Court of Pakistan dated 11-12-2002.
7. The brief facts, noted above by way of background to the present lis, are not in dispute. The controversy between the parties has arisen subsequent to the judgment of the Honourable Supreme Court. Both sides, being parties before the Honourable Supreme Court, are bound by the said judgment. It is only the meaning put by them respectively, on the relevant parts of the judgment on which they differ. Learned counsel for both sides agree that the following extracts from the Supreme Court judgment set out the rights granted to the appellants, who were also appellants before the honourable Supreme Court:-- "The appellants according to their assertions were always ready and willing to accept the highest bid of Rs,127 per share and even today their learned counsel has made a statement that his clients are ready to accept the highest bid of Rs,127 per share as provided by law."
"Admittedly, the appellants are specified persons whose establishment was acquired and private respondents having backed out from their offers, the appellants are entitled to the transfer of shares and proprietary interests of the managed establishment, therefore, we allow these appeals and direct respondents Nos.1 to 3 to ask the appellants to match the highest bid of Rs,127 per share which was offered by Calicon (Pvt.) Limited."
8. Correspondence was commenced between the appellants and the Privatization Commission within a month of the Supreme Court judgment. Various letters were exchanged between the parties which reflect the conflicting positions taken by the two sides. The letters on file are admitted documents. The contents of these letters, being .Relevant for deciding the controversy before us, are discussed later in this judgment.
9. After hearing learned counsel for the parties at length, both sides are agreed that the point in contention between them boils down to one simple question, which we have framed as under:-- "In terms of the Supreme Court judgment, was the bid of Rs,127 per share (made by Calicon (Private) Limited) required to be matched based on the terms applicable at the time of the bidding in 1991 or was the said bid to be adjusted on account of subsequent intervening events such as deletion and addition of assets and the altered state of MCL?"
10. On a query specifically put to learned counsel for the appellants, he stated that subsequent events had to be factored into the amount calculated as being payable by the appellants and it was not necessary that the figure, so arrived at, would be Rs,127 per share. The entire thrust of the letters written by the appellants to the Privatization Commission and even the contents of the better statement submitted before the learned Single Bench by the appellants, indicate that the figure per share, which the appellants had in mind as the adjusted bid price payable by them, was substantially lower than Rs,127 per share.
11. We, however, first of all, need to decide the question in the preceding paragraph. The relevant parts of the judgment of the Honourable Supreme Court, reproduced above, show, firstly, that the appellants had categorically stated before the Court that the appellants were ready to accept the highest bide of Rs,127 per share, as provided by law. It is this readiness on the part of the appellants, which led to the concluding paragraph of the judgment directing the respondents "to ask the appellants to match the highest bid of Rs,127 per share which was offered by the Calicon (Private)
Limited."
12. In our humble opinion, the wording of the Supreme Court judgment can only mean that the bid of Rs,127 per share made by Calicon (Private) Limited had to be matched on the basis of the balance sheet and financials of MCL as on 30-6-1990 because that was the basis of the bidding.
No adjustment in the said figure was either sought by the appellants from the Honourable Supreme Court nor could any such adjustment, on a reasonable interpretation of the said judgment, be read into it. On the contrary the clear and explicit language of the Honourable Supreme Court leaves us in no manner of doubt that what was required to be matched was the Calicon bid plain and simple, without any qualification or rider.
13. We now take up for consideration the correspondence exchanged between the appellants and the Privatization Commission. From the extracts of the said correspondence, it is clear to us that from the very beginning of this correspondence, the appellants proceeded on the assumption that the figure of Rs,127 per share was merely a notional figure and that the Honourable Supreme Court had meant to allow an adjustment therein on account of subsequent events. In fact, learned counsel for the appellants repeatedly argued that it was not conceivable that the Honourable Supreme Court was not mindful of the events, which intervened between the date of bidding i,e, 17- 10-1991 and 11-12-2002, when the above referred judgment was announced.
14. The aforesaid thinking is reflected in the letters, which the appellants addressed to the Privatization Commission. Their first letter, written by appellant No,1 after the pronouncement of the Supreme Court judgment, is dated 8-1-2003. It was stated therein that the bid of Rs,127 per share was based "and the setting out was of the audited balance sheet of 3C 1990". This was followed by the following revealing sentence:-- "Kindly let me know when the Unit can be transferred to me taking into account the State of assets and liabilities and other relevant consideration (sic) on the date on which the unit is transferred to us." (Underling is ours).
15. The next letter written by the appellants dated 15-1-2003 is even more clear. In view of the importance of this letter in disclosing the mind of the appellants in terms of the question posed by us above, the relevant part thereof is reproduced as under:-- "We are prepared and willing to match as per order by the Supreme Court.
' Now, it is necessary for you to establish the present value of that offer because the company has been under your and Government control and management for over last 12 years, from Bid date 17- 10-1991.
' The real value today of that offer is very differentand this you will find in the present Balance Sheet and other related documents as on 2002/2003. Supreme Court order has to be read as being based on, the assumption that the value of the company and its Assets today are roughly the same as it was in the Balance sheet in 1990 (as per clause 4(iv) of the bid documents) and if there is substantial and substantive changes and variations then the Privatization Commission will work out the correct corresponding figures as applicable today and the figures of Rs,127 will continue to apply as a yard stick for determining the corresponding figures of date." (Underling is by us).
' There could be no clearer indication of the fact that the appellants were not prepared to match the Calicon bid though they may have been willing to match an adjusted bid chased on the financials of MCL as in 2002-2003.
16. The other letters written by the appellants which followed the two letters discussed above, are dated 7 2-2003, 15-4-2003, 2-5-2003, 15-6-2004 and 25-6-2004. It is not necessary to reproduce the contents of these letters because the same do not, in any manner, alter the basic premise on which the appellants interpreted the judgment of the Honourable Supreme Court. We would, at this stage, also like to advert to the better statement, which was submitted in the suit by the appellants pursuant to an order passed-by the learned Single Bench. In paragraph 4 of the better statement, it has, inter alia, been noted that the net assets of MCL have declined from Rs,15.82 crores to a negative amount of Rs,82.16 crores representing a total diminution of Rs,97.98 crores in the interregnum between the bid made in 1991 and the date of the latest balance sheet dated 30-6- 2005.
17. The contents of the better statement also show another important facet of the appellant's thinking. It is clear from clause (e) of paragraph 4 of the better statement that the basis of the original bid of Rs,17.12 per share, which was submitted by the appellants on 17-10-1991, was the break-up value of Rs,17.12 per share as per audited balance-sheet dated 30-6-1990. It becomes abundantly clear, therefore, that the appellants were fully aware that the bid of Rs,127 per share submitted by Calicon (Private) Limited, was way above the break-up value. It is this bid (which clearly had little nexus with the break-up value per share), which had to be matched by the appellants and not some revised bid based on the current breakup value of the shares in question.
18. The consideration of the letters written by the appellants and their better statement submitted in Court leaves us in no manner of doubt that the appellants did not, at any point in time, intend to match the bid made by Calicon (Private) Limited.
19. Learned counsel for the appellants did advance the argument that the appellants could only have matched the Calicon bid if they had been provided the bid documents. We note that in some of the letters written to the Privatization Commission by the appellants, a request for the bid documents and the Calicon bid has been made. It is, however, to be noted that the appellants themselves were bidders for the MCL shares in question in 1991. It follows that they were fully aware of the bid documents, including the instructions to bidders, etc. No grievance, on this score, can, therefore, be countenanced by us. We cannot, in the circumstances, help concluding that the request for the Calicon bid was merely made as a ploy to unnecessarily complicate the straightforward adjudication made by the Honourable Supreme Court. We would like to add that even if the Privatization Commission had refused to provide the Calicon bid and bidding documents to the appellants, this alone would be of no avail to them because of our finding recorded above that the appellants were not prepared to match the Calicon bid as per terms of the Supreme Court judgment.
20. At this point, it is to be noted that the Privatization Commission complied with the judgment of the I Ionourable Supreme Court by repeatedly asking the appellants to match the Calicon bid. This was done through various communications addressed by the Privatization Commission to the appellants, including letters dated 8-1-2003, 16-7-2003 and 20-5-2003. We are not in any doubt that the obligation imposed on the Privatization Commission by the Honourable Supreme Court in its judgment, was fully met.
21. We now come to a submission on which great emphasis was placed by learned counsel for the appellants. He stated that the plaint in the case could not have been rejected by the learned Single Bench. The prayer in this appeal is also to the effect that the rejection of plaint by the learned Single, Bench be set aside and the suit filed by the appellants be ordered to be adjudicated on merits.
22. We have gone through the impugned judgment and note that in para.17 thereof the learned Judge has referred to ten precedents and, applying the principles enunciated therein, has proceeded to reject the plaint. The learned Judge has concluded that the suit filed by the appellants is "a speculative venture aimed to prevent market based privatization" of the shares in question and thereby to extract favourable terms from the Privatization Commission. Based on the circumstances of the case discussed above, we cannot say that the conclusions reached by the learned Single Judge were without basis. We can, however, give some weight to the argument advanced on behalf of the appellants that the provisions of Order VII, rule 11, C.P.C., as consistently interpreted by the superior Courts in our jurisdictions, may not be applicable strictly in the present case. This, however, in our opinion, is of no avail to the appellants for the reasons which follow.
23. The correspondence and other documents, which we have discussed above, are admitted by both sides. The facts, therefore, which are relevant for deciding the controversy between the parties, are clear to us and are not, in fact, disputed between the parties. No evidence is required to prove these facts. We have only to interpret the judgment of the Honourable Supreme Court and to decide whether on the given facts the suit filed by the appellants could have been decreed. Having concluded that the Privatization Commission fulfilled its obligation under the Supreme Court judgment by asking the appellants to match the bid for Rs,127 per share, submitted by Calicon, the question is whether the appellants accepted such offer and were ready and willing to match the Calicon bid. For reasons already discussed, we must conclude that the appellants did not match the Calicon bid and nor did they intend to do so. It follows, therefore, that the suit filed by the appellants was liable to be dismissed. The term "rejection of plaint", in this context, might not be apt, but this is merely a question of semantics because in effect the judgment of the learned Single Bench amounts to a dismissal of the suit. Furthermore, the outcome of this appeal is not effected by the terminology used by the learned Single Bench.
24. At this point we would like to say a few words about the procedure which we have adopted in deciding this appeal. Section 29 of the Privatization Commission Ordinance, 2000 requires the High Court to "follow the procedure, as nearly as possible as provided in the Code of Civil Procedure". It is important to bear in mind that the C.P.C. Itself is not made applicable to suits filed under the Privatization Commission Ordinance. Where the relevant facts are not in dispute, as in the present case, the Court merely has to apply the law to such facts and render its decision. There is no need, in such case, to call for evidence and to embark on a regular trial. Even the C.P.C. Envisages decision of cases on preliminary issues without a full trial. The departure from the C.P.C. To the extent that no issues (whether preliminary or otherwise) were framed by the learned Single Bench in this case, is of no consequence because the point in contention between the parties stood crystallized before us and has been encapsulated in the question framed above. Had we come to the conclusion that the Supreme Court judgment permitted an adjustment in the Calicon bid of Rs,127 per share, it might have been possible to consider the argument advanced on behalf of the appellants that a regular trial in the case was necessary to determine the extent of the adjustment.
We may add though, that even on the question of adjustment of the bid price, we cannot find fault with the reasoning of the learned Single Bench.
25. Lastly, to complete the picture as to the parties arrayed before us, we need to mention Bestway Cement Limited (BCL) (respondent No,5). BCL originally was not a defendant in the suit. However, it participated in bidding held for the shares of MCL during the pendency of the suit before the learned Single Bench. It made a bid of Rs,305 per share, and, being the highest bidder, applied to the Court to be impleaded as a defendant in the suit. This application was allowed, and it is on this basis that BCL is before us as a respondent. We may only add that the bidding, held on 15-9-2005, did not present a fait accompli because it was subject to the decision of the case. We would also like to note that the bid of Rs,305 per share should not be compared with the Calicon bid of Rs,127 per share because the balance sheet of MCL had been materially restructured before the fresh bidding. This observation is made in the light of the impugned judgment, which creates the impression that the higher bid for the shares given by BCL was made on the same basis as underlay the earlier bidding in 1991.
26. In view of the foregoing discussion, the appeal filed by the appellants is dismissed with costs.