1. C.M. No,90 of 2014 MUHAMMAD ANWAR KHAN KASI, C.J.--- Applicant is respondent no,1 in the main Arbitration petition and through present application he seeks return of Arbitration petition on the ground that the same does not fall within the pecuniary jurisdiction of this Court.
2. Learned counsel submits that court-fee of Rs,20 has been affixed upon the Arbitration petition which corresponds to item 12 of the second schedule of Court Fees Act, 1870 which embodies fixed rate of court-fee. It is added that Article 13 of Schedule "D" of the Suit Valuation Act, 1887, relates to value of suit for the purpose of jurisdiction, in the said schedule, jurisdictional value has been rendered inapplicable regarding the applications, therefore, even though a petition under section 20 of Arbitration Act is registered as suit under section 40 of the Act, yet the same remains an application and value for the purpose of jurisdiction in all applications remains the same and falls within the jurisdiction of learned Civil Court.
3. Learned counsel for respondent-Arbitration petitioner repelled the above submission by taking the position that court-fee does not regulate value of a case in all circumstances, but the value of the subject-matter of arbitration and dispute under reference governs the pecuniary jurisdiction and as in the instant case value of dispute and reference to arbitration was more than USD 6,789,811.72 i,e, than hundred millions rupees, therefore, this court retains jurisdiction.
4. It is next submitted that present application is intended to delay the proceedings through abuse of the process of court. Applicant in his reply of Arbitration petition filed in 2011 did not raise any objection of this nature and subsequently came up with a misconceived version for the purpose of creating confusion and delay in the proceedings. Learned counsel in support of his submissions relied on case-law titled as M.A. Jalil v. Group Captain (R) Salahuddin Khan [1983 CLC 1685 Lahore].
5. Heard and record perused.
6. Jurisdiction of a court under Arbitration Act is dealt under section 2(c) of Arbitration Act, 1940 wherein a court has been defined as a Civil Court having jurisdiction to decide the questions forming the A subject-matter of the reference, therefore, no exception is warranted from the ratio set in case of "M.A. Jalil" (supra). Since the value of dispute is admittedly above one hundred million rupees, this Court IA retains jurisdiction to adjudicate upon the instant application.
7. In view of above, the application is dismissed.
8. C.M. No, 410 of 2013 Applicant is respondent no,2 in the main petition. He has filed present application for rejection of Arbitration petition under Order VII, Rule 11, C.P.C. On the ground that the petition is not maintainable as the plaintiff/OMV Maurice Energy Ltd. Has got no locus standi.
9. Learned counsel submits that petitioner for seeking Arbitration has not tendered any agreement wherein they are shown as party, therefore, no question with regard to reference of the matter to arbitration arises. Explaining this point, learned counsel submits that petitioner claims to be party to agreement as a successor to Petronas Carigali Pakistan, however, the question with regard to their being successors of said company is pending adjudication under I.C.A. No,73 of 2012 which has been sent for opinion of the referee Judge in support of this contention, learned counsel referred observation recorded by this Court in order dated 30-12-2013 passed in C.M.A. No,371 of 2013.
10. Learned counsel submits that section 20 of Arbitration Act applies to those persons only who are parties to Arbitration agreement and a difference amongst them has arisen, while such situation is not available in the present case. Learned counsel adds that plaintiff is wrongly assuming himself to be party to form out agreement on the basis of illegal NOC dated 19-1-2011 whereby Patronas Carigali was going to sell its shares which is violative of proiailing law. Petroleum Concession Agreement and Joint Operating Agreement as well as Pakistan Petroleum Rules, 1986 and this Act has been challenged through Writ Petition no,94 of 2011 prior to filing of this petition. The decision in Writ Petition no,941 of 2011 went up to the Hon'ble Supreme Court wherefrom it was remanded to be decided under I.C.A. No,73 of 2012, therefore, at present, transfer of shares as well as assumption of ownership of 75% of working interest in Mehar Block and taking over the operatorship by OMV Maurice cannot be termed legal.
11. It is also argued that until and unless the legal status of petitioners replacing Patronas is decided, the petition cannot be allowed to proceed under doctrine of privity as petitioner is claiming to be third party under farmout agreement.
12. Learned counsel also mentioned that a cause of action presupposes existence of a right and since Arbitration petitioner is not a party in any agreement with respondents, no question of any right arises and consequently cause of action cannot be considered to be available. Learned counsel relied on case-laws titled as "Lithusanian Airlines v. Bhoja Airlines" [2004 CLC 544 Karachi], "Lahore Stock Exchange v. Fredrick White Group Pakistan Ltd." [PLD 1990 SC 48], "S.M. Sham Zaidi v. Malik Hassan Ali Khan" [2002 SCMR 338], Dost Muhammad v. Khair Muhammad" [PLD 2006 Lahore 727], Yasmeen Qureshi v. Tariq Qureshi" [PLD 2006 Lahore 311], "Farooq Ahmad v. Privatization Commission" [2006 CLD 1], Rashid Ahmad v. Federation of Pakistan" [1998 SCMR 405], Hidayat Ullah Khan v. Yagoob Khan Marwat" [2006 YLR 2236] and Abdul Rehman v. Sher Zaman" [2004 CLC 1340].
13. 'On the other hand, learned counsel for Arbitration petitioner [respondent herein] vehemently opposed the petition by submitting that application has been filed with mala fides to delay the proceedings. It has been specifically mentioned that respondent filed reply to main petition in November, 2011 and the grounds agitated in present application were not given in the said reply, therefore, this application amounts to improvement of previous position without permission of the Court which is not permissible under the law.
14. Learned counsel next submits that several disputed questions of facts have been raised through this application which contravenes the mandate provided under Order VII, Rule 11, C.P.C. He goes on by saying that factual disputes cannot be decided through the application and only pleadings are considered for determination under Order VII, Rule 11, C.P.C.
15. Learned counsel next submits that main Arbitration petition is now ripe for final adjudication and the summary provision under Arbitration Act, 1940 does not accommodate the tenure of procrastination adopted by the applicants.
16. Learned counsel presented another propositive by submitting that Arbitration petitioner is party to arbitration agreement contained under farmout agreement. Dated 30-3-2000 which was executed between OMV Maurice Energy of one part and OPL and ZPCL of the other part, therefore, it cannot be said that there is no arbitration agreement between the parties. He dealt with the arguments of supersession through deed of assignment dated 11-5-2000 by submitting that authorization for expenditures dated 29-12-2010 shows that respondents/applicants themselves sought benefit accruing from Article 4 of farmout agreement, therefore, they cannot be allowed blow hot and cold at the same time.
17. It is also averred that there is no share transfer transaction as applicants tried to cast the impression rather it is mere change of the name of company which has been done in accordance with law of Mauritius, the country of origin and such name change has been undertaken by the respondent no,1 who was previously known as Orient Petroleum Ltd. And was subsequently came to be known as Ocean Pakistan Ltd. Therefore, if one thing is permissible for one party, it cannot be construed prohibited for another party.
18. Heard and record perused.
19. The application mainly revolves around the disputed legal character of OMV Maurice as successor of Patronas Carigali. This factual dispute is admittedly under adjudication before learned Division Bench of this Court in I.C.A. No,73 of 2012, therefore, same could not be decided by this Court at this stage. It is to be kept in mind that if legal status of petitioner as 75% wording interest owner in Mehar Block has not been decided, it cannot be considered an adverse element to the rights of petitioner.
20. Scope of jurisdiction under Order VII, Rule 11, C.P.C. Is limited to pleadings and documents annexed therewith while no such objection, as taken in the instant application, has been raised in reply and the factual disputes beyond the pleadings cannot be employed to reject Arbitration petition under Order VII, Rule 11, C.P.C. Specifically where the case is at final stage and disputed question of facts with regard to validity of arbitration agreement falls within the jurisdiction of arbitrator.
21. In view of above, the application being devoid of force is dismissed.