I had heard the learned counsel present at quite some length on 9.06.2014 and in the order passed on such date respective contentions of the learned counsel were mentioned, which are relevant for the disposal of the application listed today as well.
Learned counsel for defendants have filed counter affidavit to this application to which Mr. Mustafa Safi has filed rejoinder and parties have exchanged such pleadings. In addition to what was argued on 19.06.2014 learned counsel for the plaintiff argued that defendants have not filed any document alongwith their pleadings and moreover proper Power of Attorney has not been filed by the defendants and therefore the replies and pleadings filed by the defendants may not be considered.
Mr. Mustafa Safvi mostly reiterated his arguments advanced on 19.06.2014, however, further submits that through listed application U/O XXXIX Rule 1 & 2 CPC, he has sought for restraining order to the effect that defendants may be restrained from inviting bid or open the tender, advertisement of which was published in daily newspaper "JANG" in its issue dated 16.04.2014. According to learned counsel in case this tender is not stopped by passing restraining order Defendant No, 2 would sell his entire capacity of 100 Metric Tons to the successful bidder and in consequence would not be able to supply L.P.G to Defendant No, 1, who is supposed to supply L.P.G in view of Contract dated 02.10.2012.
Learned counsel appearing for the defendants in reply to the contentions of advocate for the plaintiff states that Defendant No, 2 has no privy of contract with the plaintiff and the impugned Tender is an independent and normal activity of Defendant No, 2 and cannot be topped at the instance of the plaintiff, who may have remedies against Defendant No, 1 for breach of a contract at all if the same is proved in he Court of law.
I have heard both the learned counsel at length. The factual respects of the matter are mostly covered in order passed by me on 9.06.2014. The only prayer in the application listed today is that the Tender which is invited and got published by Defendant No, 2 may be stopped as according to plaintiff if that is allowed and process is completed, the entire capacity of Defendant No, 2 will be supplied to the successive bidder and as a consequence nothing would be left with the Defendant No, 2 to be supplied to Defendant No, 1 and in return the Defendant No, 1 will not be able to supply any quantity to plaintiff in consequence of contract subject matter of the present suit. Both the learned counsel have referred certain correspondence between the parties of the suit. It is not a disputed fact that there is no contract between the plaintiff and Defendant No,
2. Moreover, the documents relied upon by both the counsel available at Pages 169 and 171 show that even after claimed termination of contract there were negotiations between the parties and in last para at Page-169 it was clearly discussed that supply of the L.P.G if a fresh agreement is entered into between the parties may be from other sources as well including imported product. This fact shows that supply was not restricted to the source subject matter of the Contract dated 12.09.2012 (Annexure P-7 at Page 61 between Defendants No 1 & 2 and even if the negotiations were successive, the supply could have been made from any source, now therefore, question is that whether through Order passed on listed application entire process of business activity of Defendant No, 2 can be stopped although Mr. Mustafa Safvi says that his prayer is only to the extent of 30 Metric Tons and not for he entire activity of Defendant No,
2. That would beyond the scope of Order XXXIX Rules 1 & 2 in the circumstances prevailing between the parties with regard to subject matter of the suit.
In my humble view the correspondence filed by the plaintiff and not denied by the defendant does not show that there was a valid finding contract after claimed termination of agreement dated 12.10.2012. Defendants No, 1 & 2 are separate entities and therefore have been impleaded separately as defendants. Correspondence referred by both the counsel also shows that certain approvals were so required by Defendant No, 3 which appears to be still pending according to Mr. Asim Iqbal and only licenses which were granted were in non-profit basis. Mr. Mustafa Safvi submits that the approvals required were available, with the plaintiff and have been filed at Pages 175 and 177. It was however contended by Mr. Mustafa Safvi himself that the plaintiff applied to OGRA for 58 Licenses out of which 36 Licenses have been granted and remaining are in pipeline. It is clear that at the time of claimed termination, 58 licenses were not available with the plaintiff and the termination took place in the month of July, 2013. The suit was filed on 11.06.2014 and in the meanwhile according to Mr. Safvi parties were negotiating, correspondence of which he has annexed but it is an admitted position that no fresh agreement was executed between the parties.
In view of above situation in my humble view the plaintiff has failed to make out prima-facie case for grant of CMA No, 7867/14 and it was published as a routine business activity of Defendant No, 2 and Defendant No, 2 has no privy of contract with the plaintiff nor Defendant No, 2 can be compelled to supply. L.P.G to Defendant No, 1 only for the purpose of supplying L.P.G. To the plaintiff by Defendant No,
1. Mr. Safvi has not impugned the tender on any illegalities in the tender nor his clients intend to participate in the tender, they have not even obtained tender document if supplies are so essential they could have participated in the tender itself and could have got the supply.
The matter is between Plaintiff and Defendant No, 1 and Defendant No, 2 cannot be compelled to cancel or modify his normal business activity.
In view of above listed application is dismissed.