Ayesha A. Malik J. The Petitioner Silk Bank Limited has impugned ex-parte judgment and decree dated 2.3.2017 and attachment orders dated 4.1.2018 and 26.3.2019 passed by Respondent No.2 in execution proceedings for being without jurisdiction.
2. The case of the Petitioner is that Respondent No.1, Sui Northern Gas Pipelines Limited ("SNGPL") entered into an agreement with Data Steel Pipes Industries Private Limited, Karachi ("Data Steel") for the supply of gas pipes.
The Petitioner issued Performance Bond Guarantee ("Guarantee") in the amount of Rs.191,589,685/- to SNGPL with reference to the agreement between the SNGPL and Data Steel. A dispute arose between SNGPL and Data Steel for which Data Steel filed a suit for declaration and permanent injunction before the Sindh High Court which is still pending. The Sindh High Court passed an interim order on 19.9.2016 restraining the Respondent SNGPL from encashing the Guarantee, which order was extended from time to time by the Sindh High Court and lastly vide order dated 12.11.2018. On 25.11.2016 Respondent No.1 filed a suit for recovery of Rs.191,589,685/- along with markup before the Gas Utility Court, Lahore and obtained an ex-parte order dated 2.3.2017 which they are now seeking to have executed.
3. Learned counsel for the Petitioner submitted that the Gas Utility Court does not have jurisdiction in the matter as this is not a dispute between a consumer of gas and SNGPL nor is it a case of gas theft. Learned counsel stated that in this regard, this Court has alrea dy decided the matter vide judgment dated 18.3.2019 passed in WP No.38735/2017 titled Arshad Javaid Ghuman v. Additional District and Sessions Judge, Lahore etc. that the Gas Utility Court has jurisdiction with reference to the payments due on consumption of gas and its default.
Learned counsel stated that the Respondent SNGPL has filed an execution petition for recovery of the decretal amount before the Gas Utility Court at Lahore and has obtained attachment orders dated 4.1.2018 and 26.3.2019 passed by Respondent No.2 which are also without jurisdiction. Learned counsel further submitted that the dispute between Data Steel and SNGPL was also the subject matter of arbitration proceedings wherein finally an Award was issued on 20.10.2018, consequent to which Data Steel filed application before the Sindh High Court seeking a stay against encashment of the Guarantee. Under the circumstances, the Gas Utility Court has wrongfully exercised jurisdiction in the matter and SNGPL has wrongfully invoked the jurisdiction of the Gas Utility Court to encash its Guarantee under a contract between SNGPL and Data Steel.
4. Report and parawise comments have been filed on behalf of Respondent No.1. Learned counsel for Respondent No.1 stated that the SNGPL has invoked the jurisdiction of the Gas Utility Court by disclosing the proceedings before the Sindh High Court; that the Gas Utility Court has jurisdiction in the matter as the preamble of the Gas (Theft Control and Recovery) Act, 2016 ("Act") refers to prosecuting cases of outstanding amounts payable and sums due. Learned counsel stated that 'sums due' is defined in Section 2(o) of the Act to mean all amounts inclusive of Government taxes not limite d to arrears of gas charges and any amount recoverable of any land dispute, rentals, damages, fines, penalties, violation charges and/or on account of any other dispute. He stated that consequent to this definition, the Gas Utility Court has a wider jurisdiction than jurisdiction of disputes pertaining to gas theft or amounts due for the consu mption of gas. Further stated that the interpretation by this Court vide judgment dated 18.3.2019 passed in WP No.38735/2017 is distinguishable. He stated that the case referred to was a case of recovery of amounts from employees which is distinguishable from the instant case which is related to sums due to the SNGPL for which a suit for recovery of the said amount can be filed before the Gas Utility Court.
Hence prays for dismissal of the Petition.
5. Heard and record perused. The basic issue before the Court is whether SNGPL can file a suit for recovery of amounts due under a contract wherein the Guarantee issued by the Petitioner is sought to be encashed. Admittedly this is not a case pertaining to gas theft or recovery of amounts for the consum ption of gas rather it is a case relating to a contractual obligation betwe en SNGPL and Data Steel which dispute was the subject matter of an arbitration award dated 20.10.2018. Furthermore it is noted that the Award and the encashment of the Guarantee is the subject matter of a suit filed before the Sindh High Court in which interim orders were issued on 19.9.2016 which order was extended from time to time by the Court and lastly vide order dated 12.11.2018 restraining the Respondent SNGPL from encashing the Guarantee.
6. On the issue of jurisdiction, learned counsel for SNGPL has placed reliance on the definition given to 'sums due' under Section 2(o) of the Act which is reproduced hereunder: "sums due" means any or all such amount, inclusive of applicable Government taxes, recoverable from a person who purchases or receives gas for self consumption or sale for vehicular use or a person whose premises is connected with the network of the Gas Utility Company , lawfully or unlawfully including but not limited to arrears of gas charges, meter rental, late payment surcharges or any other incidental charges for services including fixed and variable charges, gas theft claims determined in accordance with the Gas Utility Companies laid down procedures and any amount recoverable on account of any land dispute, rentals, damages, fines, penalties, violation charges and or on account of any other dispute; As per the preamble of the Act, the objective of the Act is to prosecute cases of gas theft and other offences relating to gas and to provide a procedure for recovery of amounts due. Learned counsel for SNGPL has stressed upon the use of the term procedure for recovery of amounts due in the preamble to suggest that this amount means all and any amounts due to SNGPL because as per the definition given in Section 2(o) of the 'sums due', it is not restricted to amounts related to gas theft or for the consumption of gas. This Court has already held in judgment dated 18.3.2019 passed in WP No.38735/2017, that the objective of the Act is to prosecute cases of gas theft and other offences relating to gas so as to recover amounts due for the consumption of gas. In terms of Section 3 of the Act, the Gas Utility Courts are constituted by notification in the official Gazette and they have exclusive jurisdiction with respect to all matters covered under Section 4(2) of the Act which gives the Gas Utility Court exclusive jurisdiction with reference to all matters covered by the Act related to the consumer , gas producer or offender as the case may be. Hence as per the Section, jurisdiction of the Gas Utility Court is related to disputes of consumers, gas producers or offenders. The term consumer is defined in Section 2(b) of the Act, being a person who has received the supply of gas under a gas sales agreement. The term gas producer has not been defined but the term 'gas' is defined to suggest that a gas producer is one who produces the gas defined in Section 2(e) of the Act. However offences are provided for in the Act being the unauthorized use of gas, tampering with gas meters or pipelines or that the dispute of gas causi ng damage to transmission or transportation lines or for wasting gas. In this regard, it is also noted that Section 5 of the Act provides for the powers of the Gas Utility Court which is specifically related to taking cognizance of any offence punishable under the Act on a complaint made in writing by a person authorized by the Gas Utility Company , which again clarifies that the Gas Utility Court will deal with the offences specified under the Act so as to prevent the misuse of gas and to ensure the payment is made by consumers for the consumption of gas. It is also noted that in terms of Section 6 of the Act, the procedure for complaints and suits for default before the Gas Utility Court is prescribed such that where a person is involved in an offence under the Act or where there are sums due or recoverable from a person or where there is a consumer who disputes a bill or metering against a Gas Utility Court, the consumer or Gas Utility Company can file a complaint or a suit before the Gas Utility Court. In this Section, the reference to 'sums due' or recoverable from any person will be seen in the context of the dispute pertaining to an offence under the Act or sums due or recoverable with respect to the purchase or consumption of gas and incidental charges which may include land dispute, damages, fines and penalties with respect to the transmission and distribution of gas through pipelines. In terms of Section 27 of the Act, charges for supply of gas can be recovered as arrears of land revenue which again provides for the charges for supply of gas or any other sums outstanding against the consumer or any other person under the Act is recoverable as arrears of land revenue. Therefore the preamble of the Act and its provisions are clear that the Act seeks to vest jurisdiction in the Gas Utility Courts to recover amounts due to the Gas Utility Company for the consumption of gas and to prevent misuse of the supply of gas and any offence related to the supply , transmission and distribution of gas.
7. The contention of Respondent SNGPL that amounts due under the contract for the supply of pipelines which has nothing to do with the theft of gas, supply of gas or misuse of gas is amenable to the jurisdiction of the Gas Utility Court is totally without basis. The use of the terminology 'sums due' will be seen in the context of any default by a consumer or a producer of gas or an offender as the case may be. However it does not give jurisdiction to the Gas Utility Court with respect to contractual disputes between SNGPL and any party and in this case specifically with respect to encashment of the Guarantee issued by the Petitioner in a supply contract with Data Steel. The Gas Utility Court has been established specifically for the purposes of controlling gas theft and recovering amounts due for the consumption of gas. The preamble of the Act provides that it is necessary to prosecute cases of gas theft and other offences relating to gas and to provide for procedure for expeditious recovery of amounts due in relation to gas theft and offences relating to gas. These amounts due as specified in the preamble do not suggest any amount due to SNGPL pursuant to any contract which is not related to the supply of gas by SNGPL. In this regard, the basic principle of interpretation which is applicable is ejusdem geneus that the words should be interpreted in the same context with reference to the things provided for in the definition and the general words should not be given the widest meaning but should be applied in the context of the specific things provided in the definition.
Hence with the definition of 'sums due' amounts which are extraneous to the purchase or consumption of gas or gas theft or with reference to the offences provided for under the Act cannot be recovered by filing the proceedings before the Gas Utility Court as the intent of the law is clear . Furthermore it is noted that a dispute with reference to encashment of the Guarantee is pending before the Hon'ble Sindh High Court wherein interim order was granted on 19.9.2016 and on 12.11.2018 whereby the Respondents were restrained to encash the Guarantee. That suit is still pending which is the forum where the issue of encashment can be decided.
8. In view of the aforesaid, the instant Petition is allowed and the impugned orders dated 4.1.2018 and 26.3.2019 passed by Respondent No.2 are set aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.