' MUNIB AKHTAR, J.---By means of the present application, the plaintiff seeks interim injunctive relief against the defendants. The application arises in the context of a contract for the supply of certain equipment known as 'Auto Levels' and accessories for the same, which had been tendered by the defendant No,1, the Province of Sindh through the Directorate of Farm Water Management (the defendant No, 3). The subject matter of the contract, i,e,, the 'Auto Levels', are used for irrigation purposes, in order to measure water levels in the water courses that form part of the irrigation network.
2. Learned counsel for plaintiff submitted that a tender was published on or about 20-4-2005 for the supply of 1560 Auto Levels along with certain necessary accessories for use with the same. His case was that the plaintiff participated in the tender and was found to be the lowest bidder. By means of letter dated 27-5-2005, the plaintiff wrote to the defendant No,2, stating therein that the entire consignment (i,e,, all the 1560 Auto Levels) would be supplied by 30-6-2005, if the supply order was given before 1-6-2005. In response, the defendants, by means of their letter dated 30-5- 2005, confirmed the quantities of 'Auto Levels to be supplied by the plaintiff (being the aforesaid 1560 units), which were to be made by the well-known Nikon company of Japan, and imported from that country to Pakistan. Thereafter, the contract dated 3-6-2005 ("the contract"), was entered into and executed between the parties. Learned counsel referred to various clauses of the contract. In particular, he placed reliance on annexure-B to the contract, which made the following stipulation (in clause 2) with regard to the delivery of the Auto Levels: "The contractor shall at his own cost deliver (including assembly and commission) the Goods to the Site. Delivery schedule be finalized after Inspection of manufacturing plant and confirmation of original make by the approval of Purchase Committee."
' Learned counsel submitted that as clearly stated in the foregoing clause, the delivery schedule was to be finalized after inspection of the manufacturing plant in Japan by the representatives of the defendants. He contended that therefore, the obligation earlier undertaken by the plaintiff by means of its letter dated 27-5-2005 to supply the entire lot by 30-6-2005 stood superseded and was no longer applicable. Learned counsel contended that no date as such was given in the contract with regard to the delivery, and everything was contingent upon the inspection of the manufacturing plant by the representatives of the defendants and the issuance of a certificate by them that the factory facilities were found to be appropriate and adequate.
3. Learned counsel submitted that on account of no fault of the plaintiff's, nor for any reason that could be attributed to it, the visit to Japan by the defendant's' representatives could not take place for some time. In this regard, he referred to the letter dated 25-6-2005, which was written by the plaintiff to the defendants requesting that the names of two officers be nominated for purposes of the visit. It appears that in response thereto, the defendants nominated three officers for the visit.
Learned counsel submitted that while all this was going on, on 21-7-2005, 20 Auto Levels were in fact supplied by the plaintiff to the defendants, as evidenced by the plaintiff's letter dated 21-7- 2005, and that the relevant letter of credit was also opened by the plaintiff for the benefit of the Japanese supplier for the supply of the remaining 1540 Auto Levels. In the event, the visit to Japan by the representatives of the defendants took place in August, on or about the 28th of that month.
4. Learned counsel further submitted that in flagrant breach of the contract between the parties, and the defendants' obligations and the plaintiff's rights thereunder the defendants suddenly purported to issue to tender notice on 4-9-2005 in relatioin to the supply of Auto Levels. It appears That when the plaintiff communicated with the defendants in this regard, the latter wrote back by means of the letter dated 23-9-2005. In this letter, reference was made to what the defendants stated were the plaintiffs contractual obligations, namely, to supply all the Auto Levels by 30-6- 2005. Reference was also made to a term of the tender whereby the defendants could enhance or reduce the quantity of the supply order. The defendants stated that in view of the foregoing, the plaintiff was being given one final opportunity to supply 260 Auto Levels not later than 30-10-2005.
This number was inclusive of the 20 Auto Levels already supplied, but the defendants noted that the quantity supplied was without the necessary accessories, i,e,, the staff rod and tripod, which according to them were absolutely essential. It was the defendants' case that any Auto 'Levels supplied without such accessories were effectively useless.
5. Learned counsel for the plaintiff submitted that thereafter a newspaper publication, purporting to be a legal notice dated 15-10-2005, came to the attention of the plaintiff, whereby the plaintiff was given one final opportunity to supply the entire quantity of the Auto Levels. In response thereto, the plaintiff (through its counsel) wrote to the defendants on 17-10-2005, refuting any allegation that there had been a breach of the contract by the plaintiff, drawing attention to its various terms, and the various acts that the plaintiff had done thereunder, and contending that the plaintiff was in a position to supply the entire contractual amount of Auto Levels and that the defendants could not arbitrarily alter the number to be supplied. Since no positive response was forthcoming, the plaintiff was constrained to file the instant suit, and along with the same, file the present application, seeking interim injunctive relief..
6. Learned counsel submitted that the plaintiff had a good case for the grant of interim injunctive relief, since all the ingredients for the grant of such relief existed in its favour. Learned counsel submitted that the parties were bound by the contract, and emphasized that the delivery schedule for the supply of the Auto Levels was dependent and contingent upon the visit to Japan by the representatives of the defendants. This visit, which as noted above took place in August, 2005 did not culminate in any particular or specific delivery schedule as such being agreed upon between the parties. Learned counsel submitted that for this reason, the plaintiff was not bound by the deadline of 30-6-2005 being insisted upon by the defendants, which had in any case being superseded by the contract itself. According to him, the rights and obligations of the parties were to be determined as stated in the contract, and not otherwise. Learned counsel also submitted that the subject matter of the contract, i,e, Auto Levels and accessories, were goods of a specific nature which could be used only for one purpose, namely, measuring water levels in water courses, and for no other purposes. It was only the defendants, i,e, the Provincial Government acting through its Water Management Department, which could make use of the Auto Levels, and they could not be disposed off in the open market to any other person. Hence, the contract clearly fell into that category of contracts for the sale of goods that could be specifically enforced, and as such, the plaintiff was entitled to the interim injunctive relief that it was seeking.
7. Learned counsel for defendant No, 3 strongly opposed the grant of any interim relief to the plaintiff. He drew attention to the prayer clause of the application under consideration, and submitted that since the supply of the Auto Levels was clearly time bound, which limit had been breached by the plaintiff itself, it was not entitle d to any injunctive relief. As regards the delivery schedule for the Auto Levels, learned counsel placed reliance on the "special conditions" of the contract. In particular, he referred to clause 9 of the "special conditions" which provides as follows: "(9). Delivery Period.
Item Number of items and Delivery Period as per Schedule Auto Levels with 1560 Units Metal tripo Aluminum Staff Rod 1560 Nos.
Range Poles 7800 Nos.
Fiber Glass 1560 Nos.
Measuring Tapes ' He then drew attention to the specific delivery times and completion schedule which was part of the contract, and appended at the end of the "special conditions", and which gave specific quantities and times of supply with regard to each of the 16 districts of the Province as noted therein. Learned counsel submitted that the aforesaid completion schedule clearly stipulated as follows in its opening paragraph:- "The delivery schedule from the date of signing of agreement expressed as weeks stipulates hereafter a delivery date, which the date of delivery required". [typographical errors in original] ' Learned counsel submitted that the completion schedule clearly and expressly provided, in respect of each of the .16 districts, that the Auto Levels had to be specifically supplied within eight weeks. Thus, his case was that there was no ambiguity in the contract at all with regard to the delivery schedule, which was categorical and specific. He finally placed reliance on the opening paragraph of the "special conditions" which provided as follows:-- "The conditions of contracts shall be the conditions of sale accompanying the tender together with such amendments or other conditions as shall have been agreed in writing between the Purchaser and the Contractor prior to the date of the contract and the following conditions, the following shall prevail." [typographical errors in original]
8. Learned counsel contended that the clauses relied upon by learned counsel for the plaintiff came within the "general conditions" of the contract and his case, therefore, was that since the "special conditions" had overriding effect, anything contained in the "general conditions" had to be read subject to what was stated in the "special conditions". Since the "special conditions" laid down, in categorical terms, a detailed and specific delivery schedule, learned counsel contended that that was binding on the parties and the plaintiff had manifestly failed to comply with the terms thereof. He submitted that such breach entitled the defendants to terminate the contract between the parties. Learned counsel also submitted that the visit by the defendants' representatives to Japan had revealed that in fact the maximum production capacity of the plant was only 20 Auto Levels per month, and that the supply of 20 Auto Levels actually made by the plaintiff had to be considered in this context. Even as regards the supply of the 20 units, learned counsel submitted that the required accessories had not been supplied, which effectively rendered the Auto Levels useless for the defendants' purposes. He also drew attention to the defendants' letter dated 23-9- 2005, already noted above, and submitted that as was clear from this letter, the defendants had immediately drawn the plaintiff's attention to the incomplete supply. As regards the reduction in the supply of Auto Levels to 260 units by means of aforesaid letter of 23-9-2005, learned counsel submitted that this was in fact done to facilitate the plaintiff after taking into account the limited capacity of the plant in Japan to manufacture the contractual goods. He submitted that the plaintiff was unable even to abide by this concession that was granted to it. Learned counsel submitted that the situation become so critical that eventually the Province was forced to take on hire the necessary Auto Levels from the Punjab Government. He submitted that it was on account of the repeated material breaches of the contract by the plaintiff that ultimately forced the defendants to cancel the same. He submitted that since the contract had been cancelled, no injunctive relief could be granted to the plaintiff. Furthermore, the contract was of a commercial nature, and in such cases, interim injunctive relief was not the entitlement of the plaintiff.
Furthermore, since the loss, if any, suffered by the plaintiff was easily quantifiable, learned counsel submitted that that was another reason why the plaintiff was not entitled to injunctive relief. He therefore prayed that the application be dismissed.
9. Learned A.A.G., while adopting the submissions of learned counsel for the defendant No,3, pointed out that the plaintiff was not the lowest bidder when the tender was originally opened, but was in fact the third lowest, and it was only on account of the specific undertaking given by the plaintiff that the entire quantity would be supplied by 30-6-2005, that the contract was ultimately awarded to it. Learned A.A.G. Emphasized that the plaintiff was however, unable to comply with the terms of the contract and therefore, the contract was ultimately rightly cancelled by the defendants.
10. I have heard learned counsel for the parties and have examined the various documents, including in particular, the terms of the contract, as also the case-law relied upon by them. The first and most important question that requires determination is as to whether or not the contract contained any stipulation by way of delivery of the Auto Levels, and the effect, if any, of what the plaintiff had stated in its letter dated 27-5-2005 with regard to the supply. (It may be noted at the outset that 'the various clauses of the contract, including those reproduced above, contain many obvious typographical errors, but in my view, the same can be safely ignored, since the gist and meaning of the clauses is clearly ascertainable.) As noted above, the plaintiff's case is that the contract did not contain a specific delivery schedule, and that in any case such delivery was contingent upon the outcome of the visit to Japan, whereas learned counsel for the defendants contended that the contract did in fact contain a specific delivery schedule, which had overriding effect. The relevant clauses relied upon by learned counsel for the plaintiff on the one hand, and learned counsel for the defendants on the other have been reproduced above. It has been noted that the clause relied upon by learned counsel for the plaintiff falls in annexure B to the contract.
Annexure B is titled "Conditions Of Contract", and it opens with a paragraph which states as follows:-- "The conditions of contracts shall be the conditions of sale accompanying the tender together with such amendments or other conditions as shall have been agreed in writing between the Purchaser and the Contractor prior to the date of the contract and the following conditions. Where there is a conflict between the following conditions and any other conditions, the following shall prevail."
' Thus, it will be seen from the foregoing that in fact both the clauses respectively relied upon by learned counsel for the parties, though contained in different parts of the contract, are in parts that open with paragraphs which purport to state that in case there is a conflict between the conditions as therein contained, and a condition contained in any other part, the former are to prevail. In other words, it seems that both portions of the contract as presently relevant have overriding effect.
Secondly, it is to be noted that it is expressly provided in both cases (i,e,, the opening paragraphs of both annexure B and the "special conditions"), that the conditions of the contract are to comprise of three elements: (a) the conditions of sale accompanying the tender; (b) such amendments or other conditions as have been agreed in writing between the defendants and the plaintiff prior to the date of the contract; and (c) the other conditions stipulated in the relevant part. In view of these express stipulations in the contract, when the plaintiff's letter dated 27-5-2005 and the defendant's letter dated 30-5-2005 are read together, the undertaking by the plaintiff with regard to the supply of the entire consignment by 30-5-2005, must be regarded as a condition that had been agreed in writing between the parties within the meaning of element (b) above, and hence was a condition of the contract. The stand taken by learned counsel for the plaintiff, namely, that the stipulation contained in the plaintiff's letter dated 27-5-2005, stood superseded by the contract subsequently entered into between the parties cannot therefore be accepted since the contract itself expressly negates any such conclusion.
11. Since, as noted above, the clauses of the contract relied upon respectively by learned counsel for the parties both appear in parts that have overriding clauses, in my view the proper interpretation of the contract must be to read it, if possible, in a way that these apparently conflicting provisions are reconciled. This is so because the overriding clause with which each part begins brings the clauses therein at par, and one cannot be read' subject to the other. In my view, on a proper reading of the contract and reconciliation of the relevant clauses, the contract did contain a specific delivery schedule with respect to the supply of the Auto Levels, which was the detailed delivery schedule referred to and relied upon by learned counsel for the defendants, and which stipulated specific deliveries to be made in respect of each of the 16 districts within eight weeks of the execution of the contract. This delivery schedule, however, remained subject to any change after inspection of the manufacturing plant and its confirmation by the representatives of the defendants. Thus, the word "finalized" appearing in the clause relied upon by learned counsel for the plaintiff (as appearing in clause 2 of annexure B reproduced above) does not and cannot mean that there was no delivery schedule but must be given, in the context of the contract as a whole, a more restricted and narrower meaning, namely, that the delivery schedule agreed upon could be modified after the visit by the defendants' representatives to the manufacturing plant.
Obviously, it would be open to either party to request for such a modification. However, it appears that no such request was made by the plaintiff, and hence no such modification took place. It was therefore the delivery schedule as expressly provided in the contract itself that remained applicable.
12. Learned counsel for the parties also relied on certain case law in support of their respective submissions. Learned counsel for the plaintiff relied on Petro-commodities (Pvt.) Ltd. v. Rice Export Corporation of Pakistan PLD 1998 Kar. 1, a division Bench decision. As held therein, a contract for even the supply of goods can be specifically performed, and reference was made to section 58 of the Sale of Goods Act, 1930. However, as is clear from that section, the plaintiff who is the aggrieved party, and demands specific performance of such a contract, cannot himself be in breach of the agreement. In the present case, in my view, as noted above, it was the plaintiff that was prima facie in breach of the contract. Furthermore, section 58 applies only in relation to specified or ascertained goods, which are terms which have a well understood meaning in the context of the Act, and it is not at all clear whether, in the facts and circumstances of the present case, the goods to be supplied by the plaintiff came within either category. Learned counsel also relied on Syed Waqar Hussain and another v. National Refinery Ltd. 1993 CLC 2497, a single Bench decision of this Court. In that case, an interim injunction was granted in respect of a contract for the supply of goods (steel drums). However, the learned single Judge found (at least for purposes of the interim injunction) that the plaintiff was the aggrieved party and not the party in breach of the contract.
Thus, this case is clearly distinguishable on the facts. Learned counsel also relied on Abdullah and Co. v. Province of Sindh and others 1992 M LD 293 and Dadabhoy Investments (Pvt.) Ltd. v.
Federation of Pakistan and another PLD 1995 Kar. 33, both Division Bench decisions of this Court, but these cases have no direct relevance for the issues at hand.
13. Learned counsel for the defendants, on the other hand, relied on Trustees of the Port of Karachi v._ Qutubuddin PLD 2005 Kar. 645, a Division Bench Division, where it was (in effect) observed (in the context of a contract for the supply of goods) that a failure to deliver the goods within the stipulated period would disentitle the seller to any relief. Learned counsel also referred to Bolan Beverages (Pvt.) Ltd. v. Pepsico Inc. And others PLD 2004 SC 860 and Tahir Zaman v. Jin Wei (M) SDN BHD and others 2004 CLD 603 (SHC; SB) in support of his submissions that if the loss can be quantified, then injunctive relief will not be granted. This is not however, an absolute rule, and therefore may not be applicable in the present case. Finally, he also relied on Al-Rahim Trading Co.
(Pvt.) Ltd. v. Pakistan and others PLD 2002 Kar. 147 (SB) to contend that where a contract has been cancelled, an interim injunction will not issue, but in that case the contratt had expired (as opposed to having been cancelled) and therefore, the case relied on is not a direct authority for the proposition advanced by learned counsel.
14. Thus, to sum up, the combined effect of the various clauses of the contract, B as also of the plaintiffs letter dated 27-5-2005, is that the plaintiff was obliged to supply the entire consignment of Auto Levels by 30-6-2005, or in any case was obligated to supply the same within eight weeks of the date of the contract. It is not necessary for me to reconcile any apparent conflict between these two dates since in either case, the position is that the plaintiff was unable to supply the Auto Levels within either of the aforesaid periods and must therefore to that extent be prima facie regarded as having been in breach of the contract. Furthermore, the objection taken by the defendants with regard to the 20 Auto Levels supplied by the plaintiff, namely, that they did not have the necessary accessories with which alone the Auto Levels could be used, has not been effectively rebutted by the plaintiff. Insofar ,as the contention by learned counsel for the plaintiff that the Auto Levels are goods of a specific nature, which can only be used for purposes of measuring water levels in water courses by government officials, it is B sufficient to note that even if this be the case, the plaintiff could claim specific performance of the contract only if the plaintiff itself were not in breach of the terms thereof. It can hardly lie with the plaintiff to make a claim for specific performance if it is itself prima facie in default of its obligations thereunder. Since in my view, on a prima facie assessm ent of the facts and circumstances of the case, it is the plaintiff that was in default, the plaintiff cannot be regarded as being entitled to interim injunctive relief. It is also to be noted that the submissions of learned counsel for the defendants that the manufacturing plant at Japan was unable to gear up its production level to the extent required for the purposes of the contract has also not been effectively rebutted by the plaintiff, nor the defendants' contention that on account of non- supply of Auto Levels by the plaintiff, the Government was forced to hire the same from the Punjab Government. In my view, on account of all these factors, the plaintiff is not entitled to the grant of any interim injunctive relief.
15. In view of what has been stated in the foregoing, this application must in the end fail, and is therefore hereby dismissed.