C.M. No,1364 of 2008.
'MUHAMMAD MUNIR PERACHA, J.---The respondents/ defendants shall go through the application filed by the applicants/ plaintiffs and if they have any objection, they will file written reply to the application and if they have no objection, they will respond by admitting or refusing to admit the documents mentioned in the notice proposed to be issued to them. Relist on 14-1-2009.
C.M. No, 710 of 2008.
2. Through this application, AMZO, LLC prays that the plaintiffs be directed to implead it as party in the suit.
3. The application was contested by the plaintiffs by filing written reply to the application. The defendants support the application. The view point of the learned counsel appearing for the defendants is that the applicant is a necessary party to the suit.
4. I have heard the learned counsel for the applicant, the learned counsel for the plaintiffs as well as the defendants and have gone through the record.
5. AMZO Corporation, the applicant is a company incorporated in the State of Mary Land, United States of America. It submitted a proposal for 740-MW, Munda Multipurpose Dam Project on Boot basis for the construction and establishment of a Dam on River Swat at Munda. The proposal was approved by the competent authority. On 11-5-2004, AMZO Corporation was conveyed the letter of interest in proposal for conducting feasibility study. On 29-12-2005 Shahid P. Iqbal on behalf of AMZO Corporation informed the Private Power and infrastructure Board-defendant No,2 that AMZO Corporation has entered into a joint venture agreement with Messrs Hydro Energy Investment Ltd.
On the basis of 50% partnership and that incorporation of a project company under the arrangement is in process. The defendant No,2 was informed that Project Company will undertake and develop the project after completing the feasibility study. On March, 2006, defendant No,2 was informed by Ahmad Masood Ch. On behalf AMZO:-- "In order to legalize the undertaking of development of the MMDP in Pakistan, we are in the process of incorporating a "project Company" namely "Munda Hydropower Ltd." with AMZO Corporation and Hydro Energy Investment Ltd., as its holding Companies. The registration of Munda Hydropower Ltd. , (MHL) has been approved by the Security and Exchange Commission of Pakistan and we are in process of completing the requisite documentation in this regard. Since the MHL will be the company responsible for the development of MMDP, hence a fresh Performance Certificate valid till November,' 10, 2006 (beyond six months of the extended LOI period) on behalf of MHL will be placed.
The performance Guarantee provided earlier by AMZO, valid and effective till April, 29, 2006, will thus be replaced."
6. On 21-3-2006, Munda Hydropower Ltd., the plaintiff-Company was incorporated. On 14-4-2006, Performance Guarantee was furnished on behalf of Messrs Munda Hydropower Ltd. Describing the same to be successor of Messrs AMZO Corporation vide letter, dated 27-4-2006. The defendant No,2 accepted the plaintiff-Company as successor of AMZO Corporation. On 7-3-2008, the plaintiff-Company was informed that the Government of Pakistan has decided to implement the project as a Public/Private Partnership venture and that the WAPDA will assume the public role. The plaintiff-Company, therefore, filed the present suit for declaration and injunction.
7. The suit was contested by the defendants by filing written statements. The defendants Nos. 1 and 2 filed a joint written statement. In preliminary objection No,4, the above said defendants averred:- - "The plaintiffs have no locus standi to file the instant suit as Defendant No,2 had issued a Letter of Interest (the "LOI") to Messrs AMZO Corporation LLC, USA (the "Sponsor") for carrying out the feasibility studies for the Munda Multipurpose Dam Project (the "Project") and not to Messrs Munda Hydro Power Limited, plaintiff No, 1."
8. Similarly in paragraphs 5 and 6 of the written statement, it was pleaded by defendants Nos. 1 and 2:-- "(5). Denied as incorrect. The letters, dated 29-12-2005 and 2-3-2006 of the plaintiff do not at all state that rights and obligations of the sponsor were being novated to the plaintiff in the project. In fact the clear intention and effect of the said letters reveal that plaintiffs were in the process of incorporating a Project Company with Sponsor as in holding company with fifty one per cent (51%) shares as per the requirements of the Policy and the statement of Qualification. Moreover, the plaintiff has never submitted share layout of the Sponsor or AMZO LLC in the Munda Hydropower Ltd. (MHL) to the defendant No,2 as per the requirement of Policy. Furthermore the extension in the LOI without the payment of double the amount of the performance Guarantee does not mean that the defendants were satisfied with the performance of the Sponsor. The extension was given to the Sponsor with a view to give another opportunity to expedite the Project due to its national importance and in the public interest. The validity of the Performance Guarantee was extended commensurate with the extension in the LOI and as an independent stand alone financial arrangement between the Guarantor Bank and the Defendant No,2 without any recourse to the Sponsor and therefore, any inferences drawn by the plaintiffs on its implied recognition is far fetched and irrelevant.
(6) Denied as incorrect. The defendant No,2 letter, dated 27th April specified submission of performance Guarantee by MHL, and does not in any manner whatsoever recognizes or approves or consents to the assignment or novation of the Sponsor rights and obligations in the LOI to MHL, and that is why it was specifically reaffirmed that all (other than extension) terms and conditions will remain the same and the letter for LOI extension continued to be addressed to MAZO LLC, USA, the Sponsor of the Project. The defendants have never acted in collusion with each other and with mala fide intent. As stated above the share holding dispute resulted in simultaneous litigation between shareholders of the Sponsor in Pakistan and USA causing a doubt on commitments and undertaking by the Sponsor as per requirement of Policy. This litigation gave rise to serious concern to the financial wroth, technical expertise and further development of the project by the Sponsor.
This can be corroborated by the contents of letter, dated 25-12-2007 (Anx E) by Mr. Amran pasha, Chairman and CEO of the Sponsor."
8. It is this background that the present application for implement has been filed. The learned counsel for the applicant submits that the object of Order I Rule 10 of the Civil Procedure Code is to avoid multiplicity of suit and separate actions and to completely and effectively dispose of the questions involved in the suit.
9. The learned counsel for the applicant contends that expression "necessary party" used in Order I Rule 10 of the Civil Procedure Code connotes that a person who ought to have been joined and in whose absence no effective decree can be passed was a necessary party. Relies on case of Muhammad Ayoub v. Lahore Development Authority and others (2000 M LD 1809). He further submits that wide judicial discretion is vested in the Court to add parties at any stage of the suit in whose absence no effective decree can be passed. Relies on Ghulam Ahmad Chaudhry v. Akbar Hussain through Legal Heirs and another (PLD 2002 Supreme Court 615). Further adds that a party should be joined in a suit if its presence was required to complete and conclusive adjudication of issue in dispute. Relies on case of Mansoor v. Tassaddaque Ahmad Khan and 27 others (PLD 1995 Karachi 197).
10. On the other hand, the learned counsel for the plaintiffs Mr. Abdul Hafeez Pirzada, Advocate cited Motiram Roshanlal Coal Co. v. District Committee, Dhanbad (AIR 1962 Patna 337), Gonsalo De Filomena Luis and others v. Inaclo Piedade Hildeberte Fernandes and others (AIR 1977 GOA 4) and the case of Atid Navigation Co., Ltd. v. Fairplay Towage and Shipping Co., Ltd. (All England Law Reports 1955 Vol-698) to contend that a plaintiff cannot be compelled to add a person as defendant against his wish. He further submits that there are only two circumstances in which a person can be added a party to a suit under Sub-Rule (2) of Rule 10 of the Civil Procedure Code, one when he ought to have been joined as plaintiff or defendant and is not so joined and second when without his presence, the questions involved in the suit cannot be completely decided.
11. Apart from other questions involved in the suit, one of the questions involved is whether the plaintiff has locus standi to file the instant suit as according to the defendants, the letter of interests was issued to Messrs AMZO LLC, the applicant. Another question involved is whether the rights vested in AMZO Corporation by issuance of letter of interests were assigned to the plaintiff- company and whether the defendants accepted the plaintiff-company as successor of the applicant. The applicant has not filed any suit against the defendants. Any decision on the above questions would not affect the rights of the applicant in the absence of the suit filed by it against the defendants. The findings on the said question could have affected the rights of the applicant if it had filed a suit against the defendants. The evidence of the applicant-company may help the Court in adjudicating the above mentioned questions. However, the presence of the applicant as a party in the suit is not at all required. The defendants may summon the record of the applicant- company and if need examine the representatives of the applicant-company. No right or interests of the applicant-company is going to be affected by the A judgment passed in the suit.
12. In my opinion, the applicant is neither a necessary party nor a proper party in the suit and an affective decree can be passed in the suit even in the absence of the applicant. This application is, therefore, dismissed with no order as to costs.