SAYED ZAHID HUSSAIN, C.J.---Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, a direction is sought to the respondents "to refrain from encashing of performance bond".
2. According to the learned counsel for the petitioner , though the mode of payment as desired and suggested by the petitioner through L.C. Was agreed to by the respondents, the delivery schedule had to be adjusted with the same accordingly. It is contended that by not doing so, the respondents are rather liable to pay damages to the petitioner who, on the other hand are seeking encashment of the security. It is contended that such an action of encashment of security/performance bond can be stayed by this Court. Makes reference to Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and another (1989 SCM R 379), M/s. Zenat Brothers (Pvt) Ltd. v. Aiwan-e-lqbal Authority and 3 others (PLJ 1996 Karachi 86) and Messrs National Construction Ltd. v. Aiwane-lqbal Authority (PLD 1994 SC 311). All these cases arose out of interlocutory orders passed in civil suits.
3. The learned counsel for the respondent, on the other hand, takes serious objection to the maintainability of the petition which according to him involves purely questions of facts concerning contractual terms and implications. It is contended that it was clearly known to the petitioner that the delivery period was of the essence of the contract which had to be made within the specified Schedule. According to the learned counsel, once the petitioner had acceded the award of contract vide their letter dated 19-4-2006, no subsequent term could be introduced therein nor any so-called implied condition could be relied upon in presence of express mention of all terms and conditions in the contract. Reliance is placed by him upon Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt. Through Secretary v. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 SC 1068) and Yousaf A. Haroon v. Custodian of the Karachi Hotel Project through Kamran Shehzad (2004 CLC 1967).
4. The salient features of the matter briefly mentioned are that respondent No. 3 invited tenders for the supply of Conductors, Shield Wire and Insulators in which the petitioner participated. The bid of the petitioner was found second lowest. In view of the negotiations between the parties, the petitioner agreed to reduce the prices. Letter dated 30-11-2005 is of some relevance which reads as follows:--- "Price We are pleased to reduce the price per K.m. Of ACSR "LYNX" Conductor under (LOT-III) from Rs. 1,10,086/-to Rs.98,000/- excluding 15% Sales Tax.
Payment Please arrange to make the payment through Inland Letter of Credit.
You are, therefore, requested to please consider our reduced price while finalizing the Tender."
On 7-2-2006 Notification of Award was issued with reference to the above letter of the petitioner dated 30-11-2005. The significant features of this document were that the delivery period was of the essence of the contract and that performance bond was to be furnished by the petitioner before the issuance of formal Purchase Order. On 17-2-2006 the petitioner took up the matter with the respondents which may be of relevance:--- "We hereby acknowledge the receipt of Notice Award with thanks. However, we have following submissions to make:---
(1) We had reduced our rates with a condition that the payment be made against irrevocable Letter of Credit. Somehow, this condition has not been accommodated in the LOI. It is submitted that payment through LC is our earnest need for financing.
(2) We also request to reckon the delivery period from the date of establishment of UC.
(3) We also request for your kind consideration for provisions of workable escalation on the rate of LOI as the LME has increased abnormally.
Submitted for your favourable consideration and approval."
To that, the respondent answered on 23-2-2006 as follows: "Ref: your letter No. LHR/ACL/06/5607, dated 17th February , 2006.
Parawise reply to your queries is as under:---
(1) Accepted. However, LC opening charges and subsequent amendment thereof, if any shall be borne by you. Besides delay if any in this account should not be accounted for EOT if claimed as the L.C. Is to be opened for your convenience.
(2) Not accepted, because it is not in line with Schedule of Deliveries specified in the Bidding Document
(3) Not acceptable, as the condition is not the part of the Bidding Documents.
Moreover, you are advised to provide a firm commitment regarding Timely Deliveries of Conductor against this subject tender to the satisfaction of NTDC."
It was also mentioned that "all other terms and conditions of the Purchase Order shall remain unchanged." This amendment in the Purchase Order was accepted by the petitioner vide letter dated 19-4-2006 with "thanks". Despite that, again an issue was raised for reckoning the delivery period from the date of establishment of L.C.. Which was not acceded to by the respondents. The respondents then started reminding the petitioner about the non-compliance of contractual obligation. It was, thus, that the respondents urged the relevant banks for the encashment of the performance guarantee which prompted the petitioner to approach this Court through this petition.
5. From the above narration of factual background and respective contentions of the learned counsel for the parties, it is evident that after participation by the petitioner through tenders for the supply of the goods, the petitioner had been desiring for the change of mode of payment whose request was acceded to i.e. Through L.C. He then wanted the delivery Schedule to be altered which was not agreed to by the respondents. The formal Purchase Order subject to amendment in the terms of payment was accepted by the petitioner vide its letter dated 19-4-2006. It may be mentioned that while allowing amendment in the terms of payment vide letter dated 18-4-2006 the petitioner was clearly put on notice that all other terms and conditions of the Purchase Order shall remain unchanged. Having, thus, accepted the other terms and conditions, backtracking or unilateral introduction/alteration in the delivery Schedule could not be insisted by him. His conduct estopped him from agitating the matter any further.
6. According to the respondents, time schedule for delivery of goods was of the essence of the contract whereas the petitioner alleges that the breach of contract has been made by the respondents causing losses to the petitioner. In these proceedings under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 such intricate questions pertaining to contractual regime and controversies cannot be gone into or resolved which necessarily entail a thorough trial and recording of evidence. Restraint order as prayed for is not ordinarily issued by the Courts. This case is no exception to the ordinary rule. The rationale behind is that the bank issuing such a document is considered to be bound by its own (documents/terms) irrespective of other disputes between the parties. Such a contract (security/performance bond) is to be construed with reference to its own terms and conditions. In Heavy Mechanical Complex (Pvt.) Ltd.
Taxila v. Attock Industrial Products Ltd., Rawalpindi (PLD 2003 SC 295) on consideration of the precedents it was held that "Rights and liabilities of parties in case of a contract of guarantee are determined strictly with reference to terms and conditions of guarantee without recourse to any other instrument or document executed by the parties for any different purposes." Moreover, as held by the apex Court in Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt's case (supra) the terms of contract can only be altered or modified by the parties with mutual consent and whenever there is a dispute arising out of contractual liabilities/obligations required extensive recording of evidence, the forum competent to undertake that exercise is the Civil Court.
Jurisdiction of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in such matters is not invokeable. Similar was the view taken in Yousuf A. Haroon's case (supra). In view of such expression of legal position the other aspects need not to be embarked upon. Therefore, I find it absolutely impermissible for this Court in writ jurisdiction to issue any such restraint order as is being prayed for.
The petition is dismissed accordingly. No order as to costs . .