' The brief facts of the case are that defendant No,1, M/s. United Bank Limited had given an advertisement in the various newspapers (Annexure 'A') inviting bids for the purchase of some machinery. Accordingly, a number of parties submitted bids, the plaintiff and defendant No,2 being two of them. However, the bids were not to the satisfaction of defendant No,1 and it did not accept any of them. Subsequent thereto, it called a meeting of all the bidders and informed them of this decision and it was agreed that the participants would be allowed to review or improve their bids latest of 10th November,1991 and would submit their revised offers by the said date and the said revised bids would be reviewed and considered by the bank by 14th November, 1991 and that the bank reserved its rights to accept or reject any or all of the offers without assigning any reason.
Accordingly, letter dated 2nd November, 1991 (Annexure 'C') was sent to all the bidders incorporating the above position. Thereafter, the plaintiff submitted his revised bid dated 7th November; 1991 (Annexure 'D'). Likewise other bidders also gave fresh bids and, accordingly to the plaintiff, bid of defendant No,2 was accepted on 14th November, 1991. The contention of the plaintiff is that according to the original advertisement (Annexure 'A') 15% of the bid amount was to be paid alongwith the bid and the balance of 85% was payable within three days of the acceptance of the bid but defendant No,2 did not pay the balance of 85% within the stipulated three days but much after that and, therefore, its bid could not be accepted the Defendant No,1 has permitted defendant No,2 to deposit the balance of 85% even after that which is in violation of terms and conditions of the original public notice and, therefore, illegal. On the basis of these averments the plaintiff has sought a declaration that the conduct of defendant No,1 in violating the terms and conditions contained in Annexure "A" to the plaint is illegal, unauthorised and mala fide and the plaintiff also sought a mandatory injunction restraining defendant No,1 from disposing of the said machinery except in accordance with the terms and conditions given in the public notice Annexure "A" to the plaint. Alongwith the plaint an application under Order 39, Rules 1 and 2 was also filed by the plaintiff seeking a temporary injunction to the same effect till the decision of the suit.
2. Both the defendants have filed separate counter-affidavits to the application under Order 39, Rules 1 and 2, C.P.C. Their learned counsel pointed o'ut that the stipulation as to three days is contained only in Annexure `A' to the plaint whereas in Annexure 'C' to the plaint (letter dated 2nd November, 1991) the only stipulation is that the interested bidders would submit their revised offers at U.B.L. Office, Karachi by 10th November, 1991 and the offers would be reviewed and considered by the bank by 14th November, 1991. It was further pointed out by the learned counsel that these offers were so reviewed and considered but no intimation was sent to defendant No,2 until 21-11-1991 when letter of that date (Annexure `E' to the counter-affidavit of defendant No,2) was sent to defendant No,2 intimating the latter that its offer was accepted and it was directed to make arrangements for the payment of the balance amount of Rs,55,25,000 within three days from the date of receipt of the said letter and defendant No,2, on receipt of this letter on 24th November, paid the balance amount on 26th November, 1991, i,e, within the three days' time stipulated in this letter and, as such, the transaction was completed and even the goods in question were delivered by defendant No,1 to defendant No,2 on 30-11-1991 and, as such, neither the plaintiff has been able to show any cause of action nor the circumstances of the case warrant the issuance of the temporary injunction sought by the plaintiff.
3. A perusal of the record shows that the plaintiff has not been able to make out a prima facie case for the grant of temporary injunction. The parties were not at dispute on 2nd November, 1991 when letter Annexure 'C' to the plaint was sent by defendant No,1 to the plaintiff stipulating that revised bids were to be submitted by the parties at the latest by 10th November, 1991 and the bank would review and consider them by 14th November 1991. The plaintiff accordingly submitted its revised bids on 7th November 1991 in the sum of Rs,62,50,000 and similarly other bidders had also submitted their revised bids, including defendant No,2. Admittedly, the bid of defendant No,2 was in the sum of Rs,65,00,000. There is nothing on record at the moment which could show whether defendant No,1-bank had reviewed the revised bids by 14th November 1991 or not but at any rate they were reviewed between 10th November and 21st November 1991 as would appear from the letter of the said date (Annexure `E' to the counter-affidavit of defendant No,2). In this letter defendant No,1 conveyed to defendant No,2 the acceptance of the revised offer given by defendant No,2 in the sum of Rs,65,00,000 and by the same letter defendant No,1 asked bank defendant No,2 to arrange payment of the balance amount of Rs,55,25,000 within three days from the receipt of the said letter. As would appear from the letter Annexure 'F' dated 26th November, 1991 from defendant No,2 to defendant No,1, letter Annexure `E' had reached defendant No,2 on 24-11-1991. It is also clear from letter Annexure 'F' that the defendant No,2 had paid the balance of the amount of the bid on the same date (26th November 1991). From Annexure `G' to the counter-affidavit of defendant No,2 (which is delivery order) it is clear that machinery in question was delivered by defendant No,1 to defendant No,2 on or shortly after 28-11-1991. The contention of the plaintiff is that in terms of the letter dated 2nd November, 1991 from M/s. United Bank Limited (defendant No,1) to defendant No,2, the revised bids were to be reviewed by the 14th November 1991" and it must be deemed that they had been so reviewed and, therefore, the balance of the bid amount should have been deposited by defendant by defendant No,2 within three days of 14th November 1991 but since it was deposited on 26th November, the deposit was void and illegal and Defendant No,1 should have therefore rejected the revised bid of defendant No,2. I am not impressed by this logic.
Firstly, notwithstanding their letter dated 2nd November 1991 (Annexure `C to the counter-affidavit of defendant No,2) Defendant No,1 were under no obligation to the plaintiff to review the revised bids by 14th November 1991 and could not extend this period by a week. Secondly, there does not appear any obligation on defendant No,1 to communicate the acceptance of the bid to defendant No,2 on 14th November 1991 even if a decision as to the acceptance of bid was taken on 14th November. Thirdly, defendant No,1 does not appear to have committed any breach of contract vis- a-vis the plaintiff if it granted any extension of time to Defendant No,2 to deposit the balance of the bid amount. Besides, the machinery in question having already been delivered by defendant No,1 to defendant No,2, the mandatory direction to defendant No,1 for not dealing with the machinery in question has become rather redundant and infructous and I also see no justification for restraining defendant No,2 from dealing with " the property because there is no privity of contract between defendant No,2 and the plaintiff. I am of the view that neither the plaintiff has been able to establish a prima facie case for the grant of injunction nor the balance of convenience lies in granting the same. As such, the application under Order 39, Rules 1 and 2 deserves to be dismissed.
4. I had accordingly dismissed it vide a short order dictated immediately after the hearing of the learned counsel of the parties and these are the reasons for the same.