1. ' ARSHAD NOOR KHAN, J.---By this order, I intended to dispose of C.M.A. No,995/2008 filed by the plaintiff under Order XXXIX rules 1 and 2 C.P.C. And C.M.A. No,7411/2008 under Order VII, rule 11, C.P.C.
2. Filed by defendants for rejection of the plaint, as the facts involved in both these applications as well as submissions advanced by the learned counsel for the parties are identical.
3. ' The facts leading to file the present suit in brief are that the plaintiff company is a construction concern of repute and has been in the business of contractors and engineers for a long time and successfully constructed several projects in the country and are enjoying good reputation. In the month of January 2008 the defendant No,1 invited a bid for Linning of Distributaries and Minors in Rohri and Dadu Divisions, Sukkar Barrage Left Bank Region, Package-LDMSP-SLB-RCC(A). The plaintiff was pre-qualified by the defendants for the said contract and participated in the said contract. The plaintiff as well as other bidders submitted their bids in the said contract which were opened on 31-1-2008 and the bid of the plaintiff for Rs,2488 millions was found to be lowest. The said bid was supported by a bid security for an amount of Rs,50 millions in the shape of Bank Guarantee bearing, No,2-3-2008 expiring on 29-4-2008. As per the Instructions to the Bidders, part of the bidding documents Volume-1, clause 18.15 speaks about the qualification of the security as well as the conditions under which the bids security may be forfeited. It is further submitted in the plaint that the provisions in the said documents regarding Examination of Bids and Determination of Responsiveness, obliged the defendant No,1 to examine and evaluate the bid submitted by the plaintiff in view of clause IB.26 and the plaintiff in compliance of the requirement of clause IB. 26 submitted the aforesaid Bank guarantee dated 30-1-2008 for Rs,50 millions to defendant No,2. The period for validity of the said Bid Security was 90 days which had to expire on 29-4-2008. It is further stated in the plaint that as per clause 14.1 of the Bidding Data part of the Bid Document Volume-1 the period of validity of the bid was 120 days. Since it is stated that the bid security has to be valid for a period of 28 days beyond the bid validity date, the minimum validity period of Bid Security is thus to be 148 days instead of 120 days of the bid validity period. It is further submitted in the plaint that. The bid security submitted by the plaintiff to defendant No,2 therefore did not meet the prescribed requirement and the bid had to be treated as an unresponsive bid liable to be rejected under Clause 15.3 of Instructions of Bidders. Hence the defendants No,1 was required either to accept the bid or to reject the same being unresponsive, in view of clauses (26) and (26.2) of the Instruction to Bidders, but instead of adopting the prescribed procedure the defendant No,1 started pressurizing the plaintiff to extend the period of validity of the bids security and bring the same at par with the prescribed requirement to which the plaintiff refused. It is further stated in the plaint that the defendant No,1 through its consultants Messrs. NESPAK, Karachi approached defendant No,2 with the direction to extend the period of security for which they had no lawful authority. The plaintiff, therefore, filed the present suit for permanent injunction against the defendants with the following prayers:--
(i) Permanently restrain defendant No, 1 or any other person acting on his behalf or under his authority from in any manner or to any extent approaching defendant No,2 with a view to seek, any extension in the validity period of Bid Security being Bank Guarantee No,2/032008 dated 30-1-2008 issued by defehdant No,2 in favour of defendant No,l at the request of the plaintiff.
(ii) Permanently restrain defendant No,2 from dealing with or entertaining any request from defendant No, 1 or any other person acting under his authority or on his behalf for extension of the validity period of Bank Guarantee No,2-3-2008 dated 30-1-2008 issued by defendant No,2 at the request of the plaintiff in favour of defendant No, 1.
(iii) Permanently restrain defendant No,l from taking any further steps towards the award of contract in dispute to any bidder before taking a final decision on the responsiveness of the bids and rejecting any non-responsive bid as stipulated in the Instructions of Bidders.
(iv) Costs of the above suit to the plaintiff.
(v) Any other/fiirther relief deems appropriate in the circumstances of the case.
4. ' Along with the plaint, the plaintiff filed application under Order XXXIX rules 1 and 2 C.P.C. (C.M.A.
5. No,995/2008). The notice of the suit as well as injunction application has been served on the defendants and defendant No,1 has filed written statement as well as counter-affidavit to the injunction application. In the written statement as well as in the counter-affidavit to injunction application, the defendant No,1 has denied the allegations contained in the plaint and in the injunction application and have stated that bid of the plaintiff amongst other bidders was found lowest for which a letter of acceptance dated 12-2-2008 was issued which was received by the plaintiff. The plaintiff thereafter did not act upon the letter of acceptance and malafidely the present suit. In counter-affidavit the defendants have also stated about nonexistence of prima facie case in favour of plaintiff nor balance of inconvenience lies in favour of plaintiff nor the plaintiff shall suffer irreparable loss, if injunction is refused and prayed for dismissal of injunction application.
6. ' The defendants also filed application for rejection of plaint under Order VII rule 11, C.P.C. Stating therein that no cause of action has accrued to the ' The plaintiff has filed counteraffidavit'to this application, denying therein that the suit is not barred by any provision of law that the bid of the plaintiff after following the procedure of clause T13.15 of the contract document being non-responsive was liable to be rejected but the defendants did not reject incomplete bid which was also accompanied with insufficient Bank guarantee.
7. ' I have heard Mr. Bilal A. Khawaja, Advocate for the plaintiff and Mr. Muhammad Yousuf Leghari, Advocate-General, Sindh, for the defendants.
8. ' Learned counsel for the plaintiff vehemently contended that by virtue of clause 15.3, of bid document, it was incumbent upon the defendants either to accept the bid or reject the same but they cannot compel the plaintiff to improve the bid, which they forced the plaintiff to improve and that by virtue of clause 28.2 of the bid documents, non-responsive bid cannot be accepted by the defendants and the responsive bid ought to have been accepted and since they required security/Bank guarantee demanded by the defendants for a period of 120 days was not being fulfilled, the bid of the plaintiff was non-responsive and was required to be rejected but the defendants in order to forfeit the Bank guarantee issued letter of acceptance to plaintiff which the plaintiff did not abide for the reason that his bid was non-responsive. He further contended that the defendants by acceptance of the bid of plaintiff for A category has deprived the plaintiff to participate in B category of the bid as it was condition precedent of category B that, in case, of acceptance of bid of category A, the successful bidder cannot participate in the auction of bid for category B. It is further contended that since the work has been awarded to the plaintiff by the defendants by issuance of letter of acceptance, therefore they cannot award the same to any other person prior to rejection of the bid of the plaintiff. He further contended that as the plaintiff has made out a good prima fabie case and balance of inconvenience lies in favour of the plaintiff and the plaintiff shall suffer irreparable loss, in case, if the injunction is refused, as such, the injunction application may be allowed, as prayed. He further contended that the suit filed by the plaintiff is not hit under any provision of law, therefore the application under Order VII rule 11, C.P.C.
9. Merits no consideration and is liable to be dismissed.
10. ' Mr. Muhammad Yousuf Leghari, Advocate-General, Sindh for the defendants while vehemently refuting the contention advanced by the learned counsel for the plaintiff has contended that after acceptance of bid, the plaintiff was required to fulfil the obligations imposed on him by the terms and conditions of the bid documents and since he failed to comply with the obligation on his part, as such, his security/Bank guarantee has been forfeited and because of the present suit the defendants 'have suffered heavy loss due to sky rise prices in material. He further contended that the plaintiff has no prima facie case in his favour nor the balance of inconvenience lies in his favour and plaintiff will not suffer irreparable loss, if the injunction is refused, as it is settled principle of law that, in case, if the loss, if any, which could be measured in terms of money, the injunction against the Government functionaries could not be granted. He further contended that the suit is hit under sections 39, 54 and 56 of the Specific Relief Act as well as under the instructions of the bid, submitted by the plaintiff which provides arbitration clause, as such the plaint without disclosing any sufficient cause of action, is liable to be rejected.
11. ' I have considered the arguments advanced on behalf of the parties and have gone through the entire material before me.
12. ' There could be no cavil to the proposition that for the purpose of grant of interim injunction, the Court has to consider three cardinal principles regarding grant of interim injunction, viz. (i) existence of a good prima-facie case in favour of the plaintiff; (ii) balance of convenience lies in favour of the plaintiff and (iii) plaintiff shall suffer irreparable loss and injury, in case, if the injunction is refused.
13. ' The case of the plaintiffs will be considered on the touchstone of aforesaid principles of interim injunction. The case of the plaintiff is that he participated in the bid of construction of the work advertised by the defendant No,1 and the bid documents were accompanied with the security/Bank guarantee which was the condition of submission of bid documents. It is an admitted position that three firms competed and tendered their bids which were opened and rates quoted by the plaintiff were found lowest. The statement of bidders who participated in the bid as well as their quoted rates, is reproduced herein below for the sake of convenience:- S. No.Name of FirmName of Representative 1 Messrs. Ramzan China Beijing Karachi (JV) Bid not 2Messrs China International Water and Electric Corporation (CWE) & ATL (Pvt.) Ltd. (J.V)Mr. Deng Hsfeng
3. Messrs. Sardar Muhammad Ashraf D Baloch, Karachi. Mr. Irfan Hyder 4.Messrs. Muhammad Ayoob & Brothers, Karachi Mr. Siraj Khan 5.Messrs. Hafiz Rab Nawaz Chachr, Hyderabad Bid not 6.Messrs. Sher Muhammad Mugheri, Hyderabad Bid not Designation SignatureRead Out Price (Rs.)
14. Submitted Engineer Sd/- 2,998,528,266 Quality SurveyorSd/- 3,698,712,749 Director Sd/- 2,114,977.126 Submitted Submitted 'A perusal of the statement of firms, which was accepted by the defendants vide letter dated 12-2- 2008. The receipt of this letter has not been disputed by the plaintiff. The plaintiff failed to abide the terms and conditions of the bid documents nor completed the documentation after receipt of letter of acceptance and for one or the other reasons protracted the matter on the ground that bid submitted by him was nonresponsive, because the Bank guarantee submitted with the bid documents was of short amount and that too for short period than the period required by the defendants as such his bid was non-responsive, but the plaintiff completely failed to raise this plea before the defendants after receipt of letter of acceptance nor such letter or application has been produced before this Court claiming himself disqualified for the said work on any ground inclusive of a submission of non-responsive bid. The stand which has been forcefully taken in the suit by the plaintiff is that his bid was nonresponsive whereas as per instructions contained in the bid documents the responsive bid had to accept by the defendants and therefore the bid submitted by the plaintiff was non-responsive but the defendants did not reject his bid. Learned counsel for the plaintiff has also vehemently argued the said defence and has taken me to the various clauses of the bid documents. He first, has relied upon the clause IB.
15. 15.3 to emphasis that the bid which is not acceptable, is liable to be rejected by the defendants as nonresponsive bid but the arguments seem not to be persuasive for the reason that as per condition of the bid document the bidder was required to submit a Bank guarantee with regard to the rates offered by them in their bid and on the basis of the said rates the plaintiff calculated amount of Bank- guarantee/security and submitted the same with the bid papers as such, it does not lie in their mouth to contend that the bid was not accompanied with the sufficient security/Bank guarantee, therefore, in my humble opinion clause IB.
16. 15.3 of the bid documents does not Come in operation.
17. ' Leamed counsel for the plaintiff has also taken me to clause 28.2 as well as clause 29.1 of the instructions to bidders, which clauses provide about the determination of the bids as well as award of the contract whereby the contract is to be awarded to the bidder whose bid has been determined to be substantially responsive to the bidding documents and who has offered the lowest evaluated bid price. The statement showing the names of the firms with their quoted rates, referred to above shows that three bidders participated in the bid and the rates quoted by the plaintiff were found lowest, therefore the defendants had no option, in view of clause 29.1 of the instructions of bidders, to award the same to any other persons or company than the plaintiff.
18. Therefore, it could not be said by the plaintiff that his bid being non- responsive was liable to be rejected. The terms and conditions of the bid documents produced by the plaintiff, therefore does not support the case of the plaintiff. The plaintiffs have not put forward any reasonable or plausible explanation to deviate from his bid, which has been accepted by the defendants. It appears that after acceptance of the bid, the plaintiffs have changed their mind and have raised flagrant plea which was not available to them to offer themselves to be non- responsive bidder.
19. ' The assertion of the plaintiff that defendants wants to block their ways to participate in the bid of category B as it was condition precedent to the bid of category B that the bidder who has been declared successful in the bid of category A, is not entitled to participate in the auction of bid for category B. The said stand of tlte plaintiff also appears not to be impressive for the reasons that the said stand of the plaintiff was considered by this Court while passing the order dated 6-3-2008, which is usefully quofpd herein below, in extenso, for the sake of convenience:- 6-3-2008: "Leamed counsel for the plaintiffs has moved this application under Order XXXIX mles 1 and 2 read with section 151, C.P.C, for suspension of the operation of the Letter of Acceptance dated 12-2-2008, issued by defendant No,l, in respect of Contractor Package LDMSP-SLB-RCC(A). Learned' counsel- for the plaintiffs states that they have issued this letter to the plaintiffs in order to deprive the plaintiffs from participating in the other tender i.e, Tender "B", in which the plaintiffs want to participate. Learned counsel for the plaintiffs has informed that the condition to participate in Tender "B" is that if one is qualified in Tender "A", he caimot participate in Tender "B". He says that malafidely the Tender "A" of the plaintiffs is being accepted in order to deprive the plaintiffs from participation in.Tender "B".
20. ' Learned A.A-G, who was present in Court in othCr cases, has waived notice of this application.
21. Iftikhar Hassan, Divisional Accounts Officer, Rohri Division, is present in Court and under his instruction the learned A.A-G. Has volunteered that the Department is ready to allow the plaintiffs to participate in Tender "B" on Saturday. He further says that the Bank Guarantee of Rs,50,000,000 (Rupees fifty million), submitted by the plaintiffs, shall remain in force till disposal of the suit.
22. ' With consent all the parties, the plaintiffs are allowed to participate in Tender "B". In case the plaintiffs are declined to accept Tender "A" and they make such statement, the Irrigation Department will be entitled to encash the Bank Guarantee."
23. ' In view of the aforesaid opportunity afforded to the plaintiff, admittedly the plaintiff did not participate in the bid of category B, therefore, it could not be said that the defendants had deprived the plaintiff to participate in the bid of category B.
24. ' All the circumstances and facts discussed above, show that the plaintiff possess no good prima facie case in their favour, nor the balance of inconvenience lies in their favour, and they will suffer no irreparable loss or injury, in case, if the injunction is refused, as it is settled principle of law that in case, if the loss; if any, which could be measured in terms of the money, injunction could not be granted as such, I do not find any force in the submissions advanced by the leamed counsel for the plaintiff, and loss if any. Can be recovered as damages by filingof a suit against the defendants, if advised.
25. 'The endeavour of the plaintiff throughout the proceedings is that to get him declare4 as non- responsive bidder as his bid was liable to be rejected in view of clause IB.
26. 15.1 of the instmction to the bidders. It is therefore, not disputed that the plaintiff is heavily resting his case on the terms and conditions of the bid documents as such he is required to abide by the terms and conditions of the bid documents and clause 67.3 of the bid documents provides an arbitration clause, by which the provisions of Arbitration Act, 1940 have been made applicable, in case, if dispute arises in between the parties, along with venue at Hyderabad. It is, therefore, evident that in the bid documents an arbitration clause has been provided and in case, if any dispute arises in between the parties, they must refer the dispute to the Arbitrator in view of provisions of Arbitration Act, 1940 by virtue of clause (67.3) of Conditions of Contract (Part-11, Particular Conditions of Contract) and not by way of filing of civil suit.
27. ' A pemsal of the contents of the plaint shows that the main anxiety of the plaintiff is to get released the Bank guarantee, which because of, implied conduct of the plaintiff has been forfeited by the defendants, therefore, he is required to approach to the Arbitrator, which is an admitted fomm amongst the parties for q resolution of their grievances. In view of the specific condition provided in the documents of control viz. Clause 67.3, Conditions of Contract, the suit appears to be barred under the provisions of Arbitration Act, 1940. The learned counsel for the plaintiff has not controverted the applicability of clause 67.3 of Condition of contract, as such, in my humble opinion; the forum, which has been agreed in between the parties, is to approach to the Arbitrator and not to this Court.
28. ' A perusal of the coptents of the plaint also shows that plaintiff firm is a registered partnership firm, who is being represented in the suit, against the' defendants by a person namely: Zubair Khan son of M. Ayub Khan, who according to plaintiffs is their authorised officer and the said Zubair Khan has also filed counter- affidavit to the application filed by the defendants for rejection of plaint under Order Vll, rule 11, C.P.C, but no resolution, authority or attorney, thereby authorizing the said Zubair Khan by the plaintiff firm, has been filed along with the plaint or even relied upon the said authority of the said officer to sign, verify and represent the plaint. In absence of any authority or resolution in favour of the said Zubair Khan, it could not be said that he possesses lawful authority to sign, verify and present the plaint on behalf of the plaintiff. Plaint has, therefore, not been filed through a competent person. On this score also, the suit filed by the plaintiff is not maintainable.
29. ' In view of the aforesaid discussion, I am of the firm opinion that no injunction can be granted against day to day functioning of public functionaries, and the loss if any, which could be measured in terms of money, a general rule is that injunction could not be granted, as such injunction application (C.M.A. No,995 of merits no consideration and is hereby dismissed.
30. ' In view of the aforesaid discussion and applicability of clause 67.3 of the Conditions of Contract, the forum ::vailable to the plaintiff is to approach to the Arbitrator, as such application under section Vll rule 11, C.P.C. (C.M.A. No,7411/2008) is allowed and the plaint is rejected with listed applications with cost. Plaint rejected.