1. AZHAR SALEEM BABAR, J. -- Through the above-titled writ petition filed under Section 44 of the AJ&K Interim Constitution Act, 1974, the following relief has been sought by the petitioner:--- "Therefore, it is most respecfully prayed that this writ petition may graciously be accepted and the respondents may kindly be directed to release the petitioner's performance security amounting Rs. 14,537,000/- and retention money security amounting Rs. 8,434,446/- along-with an amount of Rs. 1,102,629/- (paid commission to the bank from 01.03.2014 till 0602.2017) and Rs. 176,420/- (paid FED to bank), in accordance with law.
2. It is further prayed that respondents No, 1-4 be also directed to pay the final verified bill amounting 12,071,601.3/- alongwith mandatory interest under law forthwith.
3. Any other relief to which the petitioner is entitled under the law, justice and equity may also be awarded with cost to the petitioner."
4. Facts shortly stated are that petitioner was assigned contract of 2 major bridges in District Bagh (NCB-4A). He deposited performance security amounting to Rs. 1,45,37,000/- and retention money amounting to Rs. 84,34,446/- in accordance with the provisions of the contract. The petitioner had to pay a sum of Rs. 11,02,629/- as commission to the bank and a further amount of Rs. 1,75,420/- as amount of excise duty. It is the case of the petitioner that he has completed the construction work allocated to him and has prayed for direction to release the afore-mentioned amount in his favour.
5. On the other hand, respondents have filed written statement and written arguments by contending that contract between the parties involves provisions of arbitration and the matter has been adjudicated upon through an award by arbitrator which is now part of decree of the Civil Court. It has further been explained that in the light of terms and conditions of the contract, a modified order was issued for construction of 600 meters approach road but the contractor has not completed the allocated work so far. It has been stated that petitioner has been paid bills for the work done but he has failed to complete the approach road and bridges within time. It has further been contended that in case of failure of contractor, surety (bank) is bound to encash bank guarantee in favour of the employer. The respondents have contended that petitioner has prayed for a direction regarding payment of bills which is a contractual liability. It has been argued that a contractual liability cannot be implemented via a Constitutional writ petition. 1997 SCR 336, PLD 1979 AJ&K 61, 2004 SCR 136 and 1999 MLD 33 relied. It has further been argued that bank guarantee being an independent contract cannot be encashed by filing a writ petition. PLD 2003 SC 191 and 2003 CLD 1 relied. It has also been argued that in presence of arbitration clause in the contract- deed, the petitioner cannot file a Constitutional writ petition.
6. Learned counsel for the petitioner is of the view that petitioner has completed the construction work of bridges and a completion certificate in this regard has been issued by the competent authority. It has further been stated that Defect Liability Period (DLP) has also been completed and the demands raised by the employer have been accomplished. Learned counsel is of the view that performance security and retention money are measures only to safeguard the interest of employer. The contract has been completed to the complete satisfaction of the employer, therefore, the employer has no right to withhold the performance/retention money guarantee.
7. I have gone through the available record in the light of written arguments furnished by the parties.
8. Chief Engineer EEAP AJ&K is employer and the petitioner-company is contractor of construction of 2 major bridges in District Bagh under package NCB-4-A. The employer awarded rehabilitation and reconstruction of 2 major bridges under package No, 4-A to the petitioner-company for a sum of PKR-290,727,042.00/- vide letter dated 15.08.2008. The petitioner was required to furnish performance security within 28 days. A contract was signed between the parties, which has been attached with the memorandum of the writ petition. Under Clause 23 of the Contract, an adjudicator has to be appointed by the employer and the contractor. Clause 24 of the Contract provides procedure for resolution of disputes between the parties. For convenience, relevant provisions of the contract are reproduced as under:--- "24.1 If the Contractor believes that a decision taken by the Project Manager was either outside the authority given to the Project Manager by the Contract or that the decision was wrongly taken, the decision shall be referred to the Adjudicator within 14 days of the notification of the Project Manager's decision.
9. 24.2 The Adjudicator shall give a decision in writing within 28 days of receipt of a notification of a dispute.
10. 24.3 The adjudicator shall be paid by the hour at the rate specified in the PCC, together with reimbursable expenses of the types specified in the Contract Data, and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision shall be final and binding.
11. 24.4 The Arbitration shall be conducted in accordance with the arbitration procedures published by the institution named and in the place specified in the PCC."
12. It is the claim of the petitioner that he has completed the construction of 2 bridges in District Bagh to the satisfaction of the employer and a completion certificate has been issued by Project Manager EEAP on 28.02.2014. It may be stated here that petitioner was required to make up the defects according to punch list. The petitioner claims to have rectified the defects as per the satisfaction of the Project Manager and a Defect Liability Certificate has been issued for the petitioner on 07.07.2015. The question arises that whether the petitioner is entitled to relief prayed for by him in presence of arbitration clause. The petitioner invoked jurisdiction of the arbitrator as per the terms of the contract. The arbitrator issued award under Section 14(2) of Arbitration Act, 1940 and submitted the same before learned District Judge, Muzaffarabad on 15.01.2013. Learned Additional District Judge, Muzaffarabad summoned the parties and invited them to file objections on the award. Learned Court finally issued the verdict by making the award Rule of the Court vide judgment dated 16.03.2015. It has already been mentioned that completion certificate of 2 major bridges was issued by the Project Manager EEAP on 28.02.2014 and jurisdiction of the arbitrator was invoked in the year 2011. The adjudicator decided the matter on 15.08.2011 and the matter was referred to the arbitrator who issued the award on 15.01.2013. Chronological order of events transpires that dispute between the parties had already been referred to the arbitrator much before issuance of completion certificate on 28.02.2014. Therefore, petitioner cannot claim that he had completed construction of the allocated bridges to the satisfaction of the employer. Although, release of retention/security amount is not a part of claim before the arbitrator, however, encashment of security money in favour of the petitioner depends upon the resolution of the dispute between the parties.
13. It may be added here that Director General Audit (Disaster Management) conducted special audit of the disputed projects and indicated serious issues regarding payment of bills and identified different areas of defection by the contractor. A copy of special audit has been attached with the written statement.
14. Relief prayed for by the petitioner is a contractual liability which cannot be resolved through a Constitutional writ petition. It is worth mentioning here that petitioner claims to have completed the allocated projects to the satisfaction of the employer but the employer does not feel satisfied with the work done by the contractor-company.
15. In a case reported as PLD 2012 Lahore 52, it has been decided as under:--- "So far as the disputed questions of facts are concerned, the learned counsel for the petitioner has not disputed any part of the contract. However, the controversy between the parties hinges on the pivotal point whether the physical work executed by the petitioners is in accordance with the contract or not? This question cannot be resolved by this Court in exercise of Constitutional jurisdiction as it is apparently an admitted fact that only 24 plants have been installed by the petitioner and it cannot be surmised that the amount which has been advanced may constitute 15% of the total contract but could not make up the cost of 24 plants. But this Court cannot be oblivious of the fact that only 24 plants have been installed which does not justify the act of the writ petitioner. So far as the learned counsel for the petitioner alleged that this amount was not for the completion of the total work but was only meant, for the use of infrastructure, mobilization of personal and installation of equipment with allied facilities and services and for that matter he submitted the details to the respondent which has been categorically disputed by the respondents and this Court has no mechanism to resolve this dispute.
16. However, this is one perspective of this case and on the basis of objection, no adverse inference can be drawn against any party unless the other questions raised by both the parties are not properly dealt with. It is settled law and there is no departure from this law that the disputed questions of facts cannot be settled through this Constitutional petition. The judgments referred to by the learned counsel for the respondents and mentioned in the preceding paras are sufficient to hold this fact that this Court shall not exercise such jurisdiction where disputed questions of facts have been raised particularly when floating on the surface of the record. For that resolution of such disputes, the arbitration clause provided under the contract is also available for both the parties. Even otherwise, in the presence of arbitration clause the writ petition is not maintainable.
17. However, this fundamental canon of administration of justice cannot be overlooked that each case has to be decided on its own peculiar facts and circumstances."
18. In Shaukat Ali's case (2001 CLC 694 Lahore), it has been laid down that a Constitutional petition is not maintainable when there is an arbitration clause in the agreement The relevant extract of the judgment is reproduced as under:--- "Further, arbitration clause had been provided in the contract/agreement-deed for resolution of any dispute or difference arising out of the deed, Constitutional petition was not maintainable.
19. While relying on PLD 2010 Lahore 52, it was declared that Constitutional petition was not maintainable."
20. In a case reported as 2001 YLR 734 Lahore, it has been concluded that:-- "It is settled proposition of law that Constitutional petition is not maintainable for the resolution of the disputed questions of fact, as per principle laid down by the Hon 'ble Supreme Court in Muhammad Younis Khan's case (1993 SCMR 618). It is also settled principle of law that Constitutional petition is not maintainable in presence of arbitration clause as per principle laid down by the Hon'ble Supreme Court in 1999 SCMR 121. It is also settled principle of law that writ petition is not maintainable for enforcement of the contract where the liability was not admitted by the respondents.
21. It has also been stated that dispute between the parties was referred to the adjudicator and then to the arbitrator in the year 2011. Completion certificate in favour of the petitioner was issued in the year 2014. The completion certificate and Defects Liability Certificate have been disputed by the employer for having been issued without his consultation. However, had the certificates not been disputed by the employer even then dispute between the parties has been referred to the adjudicator/arbitrator as per the provisions of contract. The employer has a right to retain payment due to the contractor until completion of whole of the works as per Clause 45 of the contract-deed. Under Clause 51.1, loss or damage to the works or materials to be incorporated in the works between the Start Date and the end of the Defects Correction periods shall be remedied by the contractor at the Contractor's cost if the loss or damage arises from the contractor's acts or omissions. Release of security/retention money in favour of the petitioner depends on completion of work. It may be stated here that petitioner filed an application under Section 14 of the Arbitration Act before learned Additional District Judge Muzaffarabad which was dismissed. The Court further held award dated 04.07.2015 as without lawful authority vide order dated 11.01.2017. Shoukat Khan and company, petitioner herein, filed an appeal before the High Court under the provisions of Arbitration Act which is still sub-judice before the High. Court. The dispute regarding completion of work has, therefore, yet not been finalized. Therefore, petitioner cannot claim that he has successfully completed the work assigned to him.
22. It is also worth mentioning that petitioner filed a suit for declaration in the Court of Senior Civil Judge, Abbottabad on the same grounds on 16.03.2017. The petitioner claimed in his civil suit that he completed different projects including the projects under package 4-A to the entire satisfaction of the concerned quarters and completion certificates were issued by the concerned officials. He further claimed that after completion of projects and after issuance of completion certificate issued by the defendants and even after the lapse of Defect Liability Period (DLP), the defendants are under the legal liability to discharge/release the above-mentioned guarantees which were furnished by the plaintiff's firm as performance and retention guarantees against the above- mentioned projects. The petitioner has availed the same remedy through a civil suit. It has been stated that petitioner withdrew his suit from the Civil Court, however, petitioner is not entitled to file a writ petition on the same grounds even if he has withdrawn his civil suit.
23. For the afore-stated reasons, performance security and retention security alongwith surcharges cannot be released in favour of the petitioner until resolution of disputes indicated in the arbitrator's award. The writ petition is, therefore, dismissed with no order as to the costs.