1. ' MAQBOOL BAQAR, J.--- In the instant appeal, the appellant has assailed judgment and decree dated 31st May, 2002 passed by a learned Single Judge of this Court in Civil Suit No,97 of 1988.
2. ' The facts of the case, in brief, are that, the appellant awarded to respondent No,1 "a contract of earthwork and lining of Sadiq Feeder Canal 80-162 R.D. And in pursuance of above contract, the appellant paid to the said respondent an amount of Rs,93,19,151 by way of mobilization advance, who furnished, in favour of the appellant, a mobilization advance payment bond. Whereas respondent No,3, at the request of respondent No,1, furnished a performance bond in favour of the appellant in the sum of Rs,93,19,151.55. In terms of the contract the entire work was to be completed by 17th December, 1988 and in the event of respondent's failure to complete the work within the stipulated period the said respondent was liable to pay to the appellant, liquidated damages at the rate of Rs,5,000 per day. However, the respondent No,1 failed to complete the project by the stipulated date of 17th December, 1988, causing heavy losses to the appellant. It is also claimed that at the request of respondent No,1 advance of Rs,5.800 millions was made to the said respondent in June, 1987 for purchase of spare parts but the respondent No,1 did not spend the entire amount received by them. Subsequently a sum of Rs,10 million being part of Rs,16.050 millions demanded by respondent No,1 was also released to respondent No,1 in June, 1988 for the spare parts. However, despite the above the respondent failed to perform his part of contract, and to complete the work within the stipulated time, and instead filed the aforesaid suit for a declaration that the bank guarantee dated 23rd December, 1986 and the performance bond in question are not enforceable and that the appellant is not entitled to demand payments under the same, and for permanent injunction restraining the appellant from demanding any payment under the guarantee and the performance bond. The appellants contested the suit and filed their written statements denying the respondent No, l's claim. Subsequently, respondent No,1 granted the contract for the remaining work to a sub-contractor namely, Messrs Mid East Construction Company, vide letter dated 8th October, 1989. By order dated 4th March, 1998 M. Suhail K. Zaidi was by consent, appointed commissioner to examine the account in relation to the mobilization advance. The Commissioner after examining the accounts submitted his report on 13-5-1998, however, by order dated 1-12-1998 the said Commissioner was directed to re-examine the accounts, by taking into consideration the documents filed by the respondent No,1 as well as the objections filed by the appellant. The Commissioner after complying with the order submitted his report afresh. The respondent No,1 submitted their objection to the commissioner report and such objections were replied by the appellants. After hearing the parties the learned Single Judge through the impugned judgment, held that mobilization advance of Rs,8.63,321 stood adjusted and is not due and payable by respondent No,1 to the appellant.
3. ' It is an admitted position that after filing of the suit the respondent No,1 has, through his sub- contractor, done extra work -to the extent of Rs,15,293,972, out of which amount the appellant has admittedly adjusted/retained, towards so-called risk and costs, a sum of Rs,1,755,623. In addition to the above, a sum of Rs,31,26,026 was withheld by the appellant towards retention money, out of the running bills paid to the respondent No,1, and his sub-contractor. It was contended by respondent No,1 that although the Commissioner, upon scrutiny of the accounts, found that the above amounts have been withheld and adjusted as noted above, and also the fact that a substantial amount payable towards the extra work done, and withheld by the appellant, has been released/paid to the sub-contractor but the aforesaid amount of Rs,1,755,623. Similarly withheld, was not paid to respondent No,1 has further contended on behalf of the respondent No,1 that withholding of the said amount, besides being discriminatory, was also illegal, as neither the contract nor any other document, authorised the appellant to adjust any amount towards the purported risk and cost.
4. According to the appellant, the amount outstanding towards the mobilization advance was Rs,8,63,321, however according to respondent No,1, such amount was Rs,8,57,891. Admittedly, an amount of Rs,31,26,026 is lying with the appellant as retention money and a further amount of Rs,1,755,623 has been withheld by the appellant on account of the so-called risk and cost. The total of the above two amounts comes to Rs,48,81,649. The learned counsel for the appellant has failed to refer any document to justify retention of any amount towards the so-called risk and cost. It is also an admitted position that some amount retained by the appellant towards the so-called risk and cost has been released to the sub-contractor. In .The circumstances, the purported retention of an amount of Rs,1,755,623 towards the so-called risk and cost is wholly unjustified which amount alone is far in excess of the amount of the mobilization amount of Rs,8,63,321 claimed by the appellant and thus, there was absolutely no justification for the appellant's invoking the mobilization advance payment bond and the learned single Judge has rightly held that the appellant is not entitled to seek refund of the amount of mobilization advance.
5. ' We, therefore, find no merits in the appeal. The appeal is accordingly dismissed.