1. ' MRs, RUKHSANA AHMED, J.---CMA.No, 311 of 2010 is an application filed by the plaintiff No,2 under Order XXXIX, rules 1 and 2, C.P.C., whereby it is prayed for an order restraining defendants Nos.1 and 2 from releasing any funds in connection with the subject project namely "Dualisation of Hyderabad-Mirpurkhas Road" to defendants Nos.6 and 7 till the disposal of the present suit.
2. ' The facts of the case being that the plaintiffs are Company registered as consulting Engineer with Pakistan Engineering Council under the relevant Act and is carrying on business in the name and style "N.A.A Consulting Engineers", However, at present plaintiff No,2 is a shareholder and Managing Director of a private limited company in the same name i.e. N.A.A Consulting Engineers (Pvt.)
3. Limited. That on 6th September, 2008 defendant No,1 published an advertisement in the newspapers inviting expressing of interest for Dualization of Hyderabad Mirpurkhas Road on design, built, finance, operate and transfer (DBFOT) basis under private partnership mode. However, a Korean Company M/s. Deokkjae Construction Company Ltd. Korea submitted bid on DBFOT basis to defendant No,1, wherein the design partner for the project was plaintiff No,2. As per terms of Reference issued by defendant No,1, plaintiff No,2 prepared the complete engineering field surveys, soil investigations, traffic studies and plans, detailed design and drawings, costs estimate etc. By making substantial investments from his own resources. According to the plaintiff bid was submitted for Rs,9,619,325,802 in which Rs,771,332,718 was earmarked as consultancy fee of the plaintiffs. Further on the submission of plaintiff No,2 work, defendant No,1 constituted a committee of senior officials and technical experts of the Government of Sindh. Defendant No,2 was included in the committee being the owner and the relevant executing Department of the Government of Sindh. The high level committee also obtained independent evaluation of the plaintiffs' work by appointing independent vetting consultants and also due diligence consultants who provided favourable reports to Government of Sindh. Defendant No,1 accepted the plaintiffs as the official project consultants. Based on such submission, a letter of intent regarding project was issued by the defendant No,2. Learned counsel further argued that after issuance of letter of intent, defendants Nos.' 1 and 2 conspired to- exclude the plaintiffs unlawfully and granted approval to a foreign consultancy firm in violation of Pakistan Engineering Council Act, 1975 and Public Procurement and Regulatory Authority Act, 2004. The foreign consulting Engineering Firm M/s. Sambo Consulting Engineers approved by defendants Nos.1 and 2 is a non-entity in Pakistan and further it is not registered with Pakistan Engineering Council and even it did not participate in the tender for the said project. Defendants Nos. 1 and 2 approved a sum of Rs, 200 Millions to be paid to foreign consultants and hurriedly released an amount of Rs,100 Millions for payment to the foreign consultants. According to the plaintiff, money was routed to the illegal foreign consultants through the company formed by Government of Sindh in partnership with M/s. Deokjae Construction Company Ltd. Under the name and style Deokjae Connecting Road (Pvt.) Ltd. A sum of Rs,100 Million was transferred to Korea through the account of the said company held with Standard Chartered Bank. The Government of Sindh being a major partner of 70% in the company obtained permission from State Bank of Pakistan to remit the foreign exchange. It is alleged that the remittance of Rs,100 Million made through the State Bank of Pakistan and Standard Chartered Bank tantamounts to money laundering under the Foreign Exchange Act.
4. ' Further learned counsel for the plaintiffs argued that Sindh Public Procurement Regulatory Authority on gaining the knowledge of illegal acts and fraudulent practices issued warning letters to defendants Nos. 1 and 2 on 15-10-2009 which were not responded by the defendants. Further defendants Nos. 1 and 2 have appointed the Chief Executive of the 70% Government owned company namely defendant No,3 to build the Hyderabad Mirpurkhas Road who does not possess education qualifications and this has been done to usurp and plunder the public funds in excess of Rs,5 Billion. It is alleged that the Chief Executive is also embezzling huge amounts from the company account and from the funds made available to M/s. Deokjae Connecting Roads (Pvt.) Ltd.
5. In the name of the plaintiffs and no income tax payment challan has been given to the plaintiffs.
6. The defendant No,3 who is also a Government servant is involved in forged withdrawal of funds from the account of M/s. Deokjae Connecting Roads (Pvt.) Ltd. The funds have been withdrawn in the name of plaintiffs and no income tax on these funds have been paid thus violating the income tax laws. Defendant No,3 being a representative of defendants Nos. 1 and 2 has been given a free hand to usurp the public funds. Lastly learned counsel argued that plaintiffs wrote two letters to defendants Nos. 1 and 2 to perform according to law, but the same have still not been responded to. Hence the plaintiffs having no other alternate filed present suit for seeking declaration, permanent injunction and recovery of money and the present application.
7. ' On the other hand, learned counsel for the defendants argued that on 5-1-2009 in response to Government of Sindh RFP (Request for proposal), in a pre-bid process, M/s. Deokjae Construction Company Ltd. a Korean company (herein after referred to as DCCL) submitted its preliminary Technical and financial proposals. Thereafter the bid was tendered in the name of DCCL. According to learned counsel for the defendants, plaintiff No,2 was not a party in the pre-bidding and post bidding agreements executed between the defendants Nos. 1 to 3 and DCCL. It has further been argued that on 10-6-2009 the Works and Services Department of Government of Sindh issued a letter of intent in favour of DCCL for construction of the project and further DCCL was required to incorporate a Road Building and Operation Company. According to the defendants said DCCL formed its subsidiary by the name of Deokjae Connecting Roads (Pvt) Ltd. For the purpose of carrying out the subject project as the Road Building and Operation Company required by Letter of Intent. He further argued that on 11-11-2009 the Government of Sindh and the defendant No,7 entered into a Concession Agreement for the construction of project. Therefore, plaintiff No,2 has no privity whatsoever in the said Concession Agreement and was never considered as a consortium partner. He further argued that plaintiffs have failed to establish any title/right in any document relating to the project and the defendant No, 1 did not accept the plaintiff as the official project consultant and there were no privities of contract between Government of Sindh and plaintiff. Mr. Khizer Asker Zaidi learned A.A.-G. Has adopted the arguments advanced by the learned counsel for the defendants.
8. ' I have heard learned counsel for the respective parties and have perused the record meticulously.
9. It is an admitted fact that contract was awarded to DCCL on the bid submitted by the said company. However, plaintiffs have failed to show any direct nexus with the defendants and further there is no direct connection between the defendants and the plaintiff No,2 and in any event for grant of injunction the party seeking injunction has to show prima facie case, balance of convenience and irreparable losts. At this stage, the plaintiffs have failed to prove a prima facie case in their favour, hence no case for injunction is made out at this stage.
10. ' In view of the above reasons, I am constrained to dismiss CMA No,311 of 2010.
11. ' As regards CMA. No, 2744 of 2010 is concerned, the defendants have submitted that the plaintiffs have no cause of action in their favour as there is no contract between the defendants and the plaintiffs and further that the suit is barred by law. Therefore, the plaint may be rejected.
12. ' On the other hand learned counsel for the plaintiffs argued that cause of action accrued to the plaintiffs when the defendant No,6 was approved by the defendants Nos. 1 and 2 and further that the suit is not barred under any law.
13. ' I have heard both the counsel at length. This Court deems that the issue as regard to the maintainability of the present suit is concerned, the same would be decided at the time of final adjudication of the present suit after recording of evidence by both the parties. Therefore, at this stage, I am constrained to dismiss the CMA. No,2744 of 2010.