' IQBAL HAMEEDUR RAHMAN, J.-Through this constitutional petition, the petitioner company seeks payment of Rs,19,65,240 deducted from the total amount of Rs,4,86,54,000 as per contract for the supply of jute bags at the rate of Rs,51.00 per bag.
2. Brief facts giving rise to this writ petition are that the petitioner firm runs a business of manufacturing jute grain sack bags (BARDANA) at Khan Pur Bagga Sher Multan Mianwali Road, District Muzaffargarh. Respondent No,2 through advertisement in the Daily National Newspapers on 3-2-2006 vide its tender No,SOF-V-I(1)2006 called for tender for 26110 of grain sack jute bags required for the storage of wheat for the season 2005-2006. The petitioner firm offered tender for 2907 bales, which was accepted at rate of Rs,51.00 per bag on 12-4-2006 vide contract No,SOF-V- I(i)/2006-Addl/ Madina, dated 31-5-2006 as per Annex: A and B. The petitioner firm as per terms and conditions of the contract supplied the complete consignment of .2907 and 273 bales of BARDANA within time and as per specification but it is stated that after receiving the consignment, the respondents did not make payment at the agreed rate of Rs,51.00 per bag, instead they made payment of Rs,4,66,88,70 at the rate of Rs,48.94 per bag. Thus, an amount of Rs,19,65,240 was to be paid to the petitioner. The petitioner in this regard approached respondent No,2 for the payment of the remaining outstanding balance of Rs,19,65,240. Although the respondents acknowledged the deduction being made but vide his letter No,SOF-V-1(1)/2006 (Prov), dated 27th July, 2006, respondent No,2 informed the petitioner firm as under:--- ' "I am directed to refer to your letter No . MJM/P- Food/04/2006 , dated 18-7-2006, on the subject cited above and to inform you that the matter has been considered and rejected by the Chief Purchaser Officer as the same is not tenable under the rules."
' The petitioner has attached copies of letter, dated July 18th 2006 and letter, dated 27th July 2006 as Annex: C and D. Against the said deduction, the petitioner has filed this constitutional petition.
3. It is contended by learned counsel for the petitioner that after the execution of the contract, respondent No,2 by not fulfilling its contractual obligations has acted in an arbitrary and capricious manner in deducting the amount of Rs,19,65,240 in an illegal and unlawful manner which cannot sustain in the eyes of law; that the petitioner had fulfilled all the terms and conditions of the contract, as such the deductions have been made malafidely.
4. On the other hand, the learned A.A.-G. Has supported the comments submitted by the respondents and stated that the deduction has been made in accordance with law and in this regard as drawn the attention of this Court towards Purchase Manual of the Food Department and in terms of its para 38, the respondents through a letter, dated 30-3-2006 requested the petitioner firm to provide a certificate of undertaking to the effect that:--- ' "Certified that the prices quoted against Tender No,-----------are not more than the prices charged from any other Purchase Organization in the country and in case of any discrepancy, the tendrer hereby undertakes to refund the price charged in excess."
' In pursuance of letter, dated 30-3-2006, the petitioner firm on 5-4-2006 Provided the Price Reasonability Certificate, which was to the effect that:--- ' "It is certified that the prices quoted to the Department against tender No, S 0 F-V-I (1) 2006, dated 21-2-2006 are not more than the price charged from any other purchasing agencies in the country and in case of any discrepancy, the tendrer undertakes to refund the price charged in excess."
' The respondents after obtaining the Price Reasonability Certificate from the petitioner firm as directed by the Finance Department in terms of para No,38 of the Purchase Manual had awarded the formal contract. At the time of execution of the contract, the petitioner firm had also certified that the prices quoted to the Department against Tender No.. Are not more than the prices charged from any other Purchasing Agencies in the country and in case of any discrepancy, the tendrer hereby undertakes to refund the price charged in excess. The respondents in terms and conditions of the Purchase Manual and undertaking of the petitioner comparing its rates approached different departments as well as the PASSCO to whom the petitioner firm also make supplies. The PASSCO in response to the department letter, dated 17-5-2006 confirmed that the petitioner firm had supplied the same goods at a contractual rate of Rs,48.94 per bag and the same was confirmed vide letter, dated 22-5-2006. Thus, keeping in view the undertaking of the petitioner firm, the petitioner has been made payment at the rate of Rs,48.94 per bag, therefore, the deduction of Rs,19,65,240 from the bills of the petitioner firm has been made strictly in accordance with the provisions of the Purchase Manual and undertaking of the petitioner firm. It is further urged by the learned A.A.-G. That even otherwise this writ petition is not maintainable as there is a disputed question of fact and contractual liabilities, for which the petitioner has the alternative remedy of filing a civil suit. Therefore, this petition merits to be dismissed with costs.
5. In rebuttal, learned counsel for the petitioner in order to substantiate its claim has drawn the attention of this Court to certain documents attached with the petition and contended that the assertion of the respondents that they approached the PASSCO vide letter, dated 17-5-2006 and in reply to the said letter the PASSCO vide letter, dated 22-5-2006 had confirmed that the petitioner firm had supplied bags at the rate of Rs,48.94 per bag is not sustainable as per Annex: .E the agreement entered into by the petitioner firm on 15-5-2006 with the PASSCO for the supply of 1000 jute bales at the rate of Rs,51.00 per bag and the same is belied through this documentary evidence on the record Annex-E, agreement between the petitioner firm with the PASSCO. That the terms of the contract had been fulfilled by the petitioner firms in toto and in accordance with the undertaking of the petitioner firm. In support of his contention learned counsel for the petitioner relies upon Bayindir Insaat v. Pakistan through Ministry of Communications and 3 others (PLD 2001 Lahore 426) and Mahmood Ali Butt v. I.G. Punjab and others (PLD 1997 SC 823). In these circumstances, this petition be accepted.
6. Arguments heard. Record perused.
7. Admittedly, the petitioner firm had, entered into a contract for the supply of 2907 bales of jute bags at the rate of Rs,51.00 per bag on 12-4-2006 and thereafter the petitioner had fully complied with the terms and conditions of the contract and supplied the same according to specification and within the time frame and accordingly payment of Rs,46,68,870 was made to them, out of total contractual amount of Rs,4,86,54,000 by deducting the amount of Rs,19,65,240. The assertion of the respondents that according to para 38 of the Purchase Manual, the petitioner firm had provided the Price Reasonability Certificate and the respondents had verified the same through PASSCO, which confirmed that the petitioner firm had supplied the same jute bags at the rate of Rs,48.94 per bag to them and at the said rate of Rs,48.94 the petitioner firm was made payment, which according to them, is according to the terms of the contract as well as liability, is not sustainable as the PASSCO entered into an agreement with the petitioner firm (Annex-E), in which it was agreed that the petitioner firm shall supply to the PASSCO 1000 jute bags at the rate of Rs,51.00 per bag. Therefore, as the rate agreed through the said agreement Annex. E is Rs,51.00, the fixation of the reasonable price by respondent No,2 at the rate of Rs,48.94 cannot sustain. Even otherwise this writ petition is maintainable as this Court has jurisdiction to direct for payment of money in exercise of constitutional jurisdiction. Reliance in this behalf is placed upon Mahmood Ali Butt v. I.G.
Punjab and others (PLD 1997 SC 823), wherein it has been held that: "Art.185(3)---Leave to appeal--- Whether High Court in exercise of constitutional jurisdiction can direct for payment of money-- Question of---High Court normally does not entertain a constitutional petition to enforce civil liability arising out of a breach of contract to pay amount of money due to claimant and ordinarily leaves it to aggrieved party to agitate question in a civil suit filed for that purpose but an order for payment of money may be made in constitution petition against State or its functionaries to enforce a statutory obligation."
' It was also held in Bayindir Insaat v. Pakistan through Ministry of Communications and 3 others (PLD 2001 Lahore 426):--- ' "Art. 199--- Constitutional jurisdiction of High Court--Scope---Contractual disputes either in private or public contracts are not subject to judicial review unless it is shown that public functionary in a contract has committed breach in violation of the statutory duty and the dispute can be resolved without examination of controversial question of fact---Essential conditions for exercise of constitutional jurisdiction in the contracts with the Government enlisted."
8. In view of the above circumstances, this writ petition is accepted and the respondents are directed to clear the outstanding balance of Rs,19,65,240 as per contract made between the parties in accordance with law.