1. ' By this common judgment, I intend to dispose of the above two suits as they arise out of same contract between the same parties and arc in the nature of counter-suits.
2. ' Briefly the facts are that the Province of Sindh through the Executive Engineer, Highway Division, Karachi, hereinafter referred to as the Defendants invited bids for the lease of rights for collection of toll tax on the Super Highway at their both toll Plazas, Karachi and Hyderabad for the period 30-6- 1983 to 31-12-1983. As per terms and conditions the bidders were required to submit a Bank Draft/Pay Order of Rs,1.5 lakh by way of earnest money and two solvency Certificates of Rs,10,00,000 each or a Bank guarantee of Rs,20 lakh valid upto 31st December, 1983. The plaintiffs in Suit No,320 of 1984, hereinafter referred to as the plaintiffs, submitted their bid which being the highest was recommended for acceptance and in the meantime he was required to deposit an amount of Rs,6 lakh as security deposit in addition to abovesaid earnest money with the tender documents. The plaintiffs were further required to pay the first instalment of the proposed lease money amounting to Rs,12,52,500 by 27th June, 1983. He was also required to execute a Lease Agreement for which he was to pay a further amount of
(i) The Plaintiffs
(ii) Fair Dealers
(iii) Muhammad Ismail
(iv) Wazir Ali
(v) Pakistan Toll PlazaRs.1,50,30,000 Rs.1,25,00,000 Rs.1,18,00,000 Rs.1,15,00,000 Rs.1,08,00,0000 ' The plaintiff had first submitted the two solvency Certificates for total amount of Rs,20 lakh and asked for return of the Bank Guarantee of Rs,20 lakh already submitted by him. The defendants vide their letter dated 28-6-1983 returned the said Bank Guarantee. On 27-6-1983 the defendants informed the plaintiff that their bid had been accepted and called upon them to complete the lease deed. The plaintiff paid the said further amount of Rs,6 lakh as security deposit and also paid the first instalment of Rs,12,52,500 which were accepted by the defendants, and the plaintiff took over the possession of the two toll plazas from the mid-night of 30th June, 1983 and 1-7-1983 as directed by the defendants and on 10th July, 1983, they paid second instalment of Rs,12,52,500 to the defendants through Pay Orders which too were accepted. The plaintiff continued paying the similar instalments thereafter. However, on account of supervening conditions which developed from the second week of August, 1983, there was a marked decline in the collection of tolls at both the points and thus a meeting took place between the functionaries of the parties to consider the said situation. However, the plaintiff notwithstanding the said adverse conditions continued paying the instalments through pay orders which were being accepted by the defendants. The lease deed documents were also stamped by the plaintiff and the original was retained by the defendants. On the representations of the plaintiff, the defendants' department examined the case and after having considered the situation the defendants recommended a rebate of Rs,18,64,000 to the plaintiff. It is the case of the plaintiff that even if the abovesaid amount of Rs,18,64,000 is deducted from the amount of bid, the remaining amount comes to Rs,1,31,66,000 which would still be higher than the second highest bidders at Rs,1,25,00,000. In these circumstances, the plaintiff filed an appeal before the Provincial Governor and was informed that the Governor has been pleased to direct the Departmental Secretary to examine and consider the plaintiff's case. In the meanwhile the situation further aggravated by the strike of truck owners etc. Effecting the collection of toll tax.
3. There were other reasons also such as law and order situation, the acts of miscreants, political protest and diversion of mineral locations by the defendants. The defendants then requisitioned the remaining two instalments finally although by this time, the defendants had paid a sum of Rs,1,25,25,000 which were accepted by the defendants without any objection and adjusted towards the payment of bid money. The plaintiffs in the meanwhile being apprehensive of pre-emptory action by the defendants sent a telegram but the department without waiting for the decision of higher authorities illegally demanded from the plaintiff to hand over the physical possession of the toll plazas. The plaintiff having no other way out filed a suit for injunction before this Court being Suit No,699 of 1983 against the defendants wherein initially an order of status quo was granted and the plaintiff was ordered to submit a Bank Guarantee of Rs,20 lakh. The defendants, however, arbitrarily and illegally dispossessed the plaintiff under show of coercive force from the two Toll Plazas. Because of such illegal acts on the part of the defendants, the payment of final instalments by the plaintiff were delayed. In the said Suit No,699 of 1983 the defendants by way of counterblast to the plaintiffs' application for contempt against them, filed an application for encashment of the Bank Guarantee. The plaintiff then moved an application for withdrawal of suit under Order XXIII, Rule 1, C.P.C. A learned Single Judge of this Court while hearing that application also heard all the other applications and allowed conditional withdrawal of the suit with permission to file a fresh suit but at the same time, the Bank Guarantee was permitted to be encashed. However, the plaintiff filed a Petition for Leave to Appeal before the Hou'ble Supreme Court being C.P.LA. No,225/K of 1984 wherein initially stay' was granted but subsequently the petition was dismissed on 13-5-1984.
4. Another petition for Leave to Appeal being C.P.S.LA. No,293/K of 1984 was also dismissed on 27-6- 1984. The defendants thus encashed the Bank Guarantee. The plaintiff then filed this suit claiming the damages and refund of the over payment totalling to Rs,1,60,00,000.
5. ' The defendants filed their written statement wherein most of the facts are admitted. However, the case of the defendants is that on account of clause 9 of the agreement of lease, the plaintiff was not entitled to any remission or reduction in the amount of lease money on account of any diminishing of the traffic over the highway. It is further the case of the defendants that the- Governor of Sindh had finally declined to grant such rebate to the plaintiff; and that ,the rebate recommended by the Chief Engineer Highway Department was only in the nature of recommendation and not a final decision. However, another plea was also taken that the plaintiffs having committed default in payment of last two instalments had rendered themselves liable to eviction and were lawfully called upon to hand over the possession of the two Toll Plazas but when they failed to do so, the defendants tried to take possession which was resisted by the plaintiffs through armed persons for which a criminal case was also lodged by the defendants. However, the possession was taken over by the defendants on 2-1-1984. The defendants further stated that in view of the orders passed in C.P.LA. No,225/K of 1984 the defendants received an amount of Rs,16,05,000 from encashment of the Bank Guarantee and the remaining Rs,3,95,000 was refunded to the plaintiff. It is admitted that the defendants have thus received the total amount of the bid money. They further claimed that on account of default of the plaintiff penalties were imposed on him under clause (i) A-B and clause 15 which are recoverable from the plaintiffs. The said amounts of penalty are as under;
(i) Clause 15 Rs.1,50,300
(ii) Clause 1(b) Rs.15,03,000
(iii) Clause 1(a) Rs. 6,00,000 ' On these pleadings of the parties, the Court was pleased to settle the following consent issues in this suit;
(1) Whether the plaintiff is entitled to any rebate/seduction in the contract sum? If so, to what extent?
(2) Has the plaintiff suffered damages? If so, to what extent?
(3) Has any cause of action accrued to plaintiff?
(4) Is the plaintiff entitled to the reliefs claimed?
(5) What should the decree be?
6. ' The defendants then filed their suit against the plaintiff being Suit No,619 of 1984 wherein they claimed a sum of Rs,63,12,600. The facts of this suit are the same as given above. However, an amount of Rs,63,12,600 was made up as under; PENALTIES:
(a) Under clause 15 of the Agreement Annexure A Rs,1,50,300
(b) Under clause 1(b) of the Agreement (as calculated @ 1% per day for a maximrm of 10 days). Rs,15,03,000 this amount 27-12-1983 the photostat copy is attached herewith as Annexure B). {{TABLE} c) Under clause 1(a) of Agreement, forfeiture of the security amount.Rs. 6,00,000
(d) Recoveries of amount collected by the defendants un-authorisedly after the completion of the contract period after 31-12-1983.
(i) Karachi side Plaza 1-1-1984 (full day-24 Hrs; and
(ii) Hyderabad side Plaza from 1-1-1984 to 2-1-1984 (32 Hrs).
7. In all calculated collection of the amount received by the defendantsRs. 1,25,000
(e) Loss due to reduction in Lease amount
(i) Bid period from 1-1-1984 to 30-6-1984; Bid expectedRs.1,57,50,000 Amount actually received.Rs.1,43,52,000 Loss.Rs. 13,98,000
(ii) Bid period from 1-7-1984 to 31-12-1984 Bid expectedRs.1,65,37,500 Amount actually received:Rs.1,40,01,200 Loss:Rs. 25.36.300 Total of (i) & (ii)Rs. 39.34.300 Grand total of (a), (b), (c), (d) and (e)Rs. 63---12.600
(z) #TBE ' The plaintiffs contractors filed their written statement wherein they reiterated their stand as taken in the plaint of Suit No,320 of 1984.
8. ' On these pleadings of the parties, the following consent issues were settled;
(1) Was the time essence of the contract in respect of instalment payments by the defendants to the plaintiff?
(2) Are the defendants entitled to a diminution owing to the supervening events over taking the parties?
(3) Are the defendants entitled to the reductions claimed and/or the reductions calculated by the plaintiffs?
(4) Are the plaintiffs estopped from enforcing the claims against the defendants?
(5) Have the plaintiffs suffered loss? If so, to what extent?
(6) Are the defendants liable for the claimed amounts?
(7) What should the decree be?
9. ' Both the parties had led evidence in both the suits. In Suit No,320 of 1984 the plaintiffs Contractor examined himself as Exh.5, P.W. Razive Ali Khan, at Exh.6, who is his Accountant and who produced various statements showing payments of instalments, recoveries, expenses and damages. He also examined P.Ws. Ahmedul Haque Siddiqi (Exh.7) and Naeem Qamar (Exh.8) the two Journalists who produced reports from various newspapers at the relevant time showing the decline in traffic and reasons therefor. The Defendants Government examined their Superintending Engineer Hussaini Ali Asghar Shah.
10. ' In the other Suit No,619 of 1984 the Government of Sindh being plaintiffs examined their Executive - Engineer Hussaini Ali Asghar Shah while the Contractor (defendant) examined himself. Both the parties in the two suits have closed their sides.
11. ' I have heard the arguments of the learned counsel for the parties. My findings on the issues are as under; ISSUE NO.1 IN SUIT NO.619 OF 1984.
12. ' The Government has pleaded in the two suits that the time was the essence of the contract; and that the present Contractor being a defaulter in payment of instalments Nos.11 and 12 and irregular in payment of earlier instalments is liable to imposition of penalties under clauses 1(a) and 1(b) and 15 of the Agreement. The agreement between the parties has been produced as Annexure A with the evidence of the Superintending Engineer of the Government. This agreement has nowhere provided any specific clause in so many words that "the time shall be essence of the contract".
13. However, in clause 1(b) of the agreement, schedule of payment of the twelve instalments has been shown with their respective dates, each instalment consists of Rs,12,52,500 each. In the same clause after the schedule of payment it is said as under; "In case of any delay of these payments, the lessee shall have to pay penalty, at 1% (one per cent) per day of the total amount of the bid for first ten days and after 10 days the entire security deposit will be forfeited to the Government without giving any notice and the contractor shall be responsible to make good the loss,if any, suffered through re-auction and the amount of such a loss suffered by the Government shall be recovered from the lessee/his securities as `Arrears of Land Revenue'."
14. ' From the above contents of the agreement, it can be seen that in case the payment is delayed, the lessee will be liaible to penalty as provided therein which is at the rate of 1% per day of the total amount of bid for first 10 days and thereafter the action that is to be taken by the Lessor is to forfeit the security deposit and re-auction the same and loss, if any, caused be recovered as arrears of land revenue. The same witness of the Government has also produced a letter dated 27-12-1983 as Annexure 'D alongwith his evidence which shows that first 10 instalments which were paid by the contractor were not on due dates but a few days thereafter. The Instalments Nos.7, 8, 9 and 10 were paid even beyond a period of 10 days but the same were accepted and encashed by the Lessor, without any protest or objection. In case the lessors were intending to impose the penalties as provided in clause 1(b) of the agreement they ought to have done the same within 10 days of the due date of the instalment but no such action was taken by them. This shows that the intention of parties was not to treat the time as essence of the contract. It may be surprising that for the first time the Government has awakened after a lapse of about six months to impose the penalty clause. It is not in every case that the time is essence of the contract. Time to be essence of contract must be stated to be so in contract itself or it may appear to be so from the intention of the parties. In case where the lessor had received the earnest money and has been receiving periodic payments and appropriating the same without any objection or protest, the intention of the parties cannot be said to have contemplated the time to be essence of the contract. In the case of Syed Muhammad Saleem v. Ashfaq Ahmed Khan and another 1989 CLC 1883 a learned Single Judge of this Court has held that it is the intention of the parties alone which is material and such intention could be deduced from their conduct, the nature of the transaction or from the overall circumstances of the case in order to determine if the time was essence of the contract. An agreement is to be construed in accordance with its terms and in the light of the facts known to both the parties. Same view has been taken in the judgment given by this Court in Suits Nos.8 and 11 of 1972 on 20th March, 1993. The witness of the Provincial Government has admitted having received all the said instalments on the dates as shown in the abovementioned letter although it is said that the Government had been writing to the contractor but no such letter has been produced in evidence to show if at any time before the abovementioned letter Annexure 'D' any objection was taken or penalty was sought to be imposed. Reliance is, however, placed on another letter which has been placed on record as Annexure 'F' with the written statement in Suit No,320 of 1983. This Letter bears No,HC/G-148/Toll/Tax/2423 dated 5th December, 1983. In this letter it is required by the contractor to pay/deposit 11th and 12th instalments within due date. In the same letter it is also said that because of his failure to pay instalments on due dates, action under clause 3 of the agreement read with clause 15 is taken and his agreement is rescinded/cancelled. It may also be observed that on the same day another letter with same reference being No,2422 was also sent to the contractor which is placed on record as Annexure `E'. In this letter the contractor is called upon to hand over the possession of two toll plazas to the S.D.O. Highway Sub-Division, Karachi and Shandadkot. This letter Annexure `E' does not speak of any penalties having been imposed or cancellation of the agreement but it simply says that the contractor is required to hand over the possession. The second letter Annexure has been denied to have been received by the contractor.
15. It is surprising to note that the last paragraph of this second letter Annexure 'F' provides that it should be read as subsequent action to this letter. The service of the letter Annexure `E' stands admitted by the contractor. In these circumstances, the onus is on the Government to show that the second letter Annexure `F was served on the contractor but there is no such evidence on the record. The witness of the Government states that this letter was despatched from his office but in spite of a specific question it is not admitted if the same was received by the contractor. An extract from the Despatch Book of the Government has been produced in evidence in Suit No,619 of 1983 as Exh.1/B showing the two letters having been despatched and received by the contractor. This Despatch Book appears to show that the second letter Annexure `E' has been subsequently added to it otherwise why would the second letter say that the first letter should be treated as subsequent to it. There is no explanation as to why the contents of the two letters were not included in same letter. The obvious inference, therefore, would be that when the letter Annexure 'E' was sent it accured to department that they ought to have cancelled the agreement and imposed penalty, that the sectmd letter Annexure 'F' was managed and the Government kept it on record without delivering the same to the contractor. In above circumstances, it can hardly be said that even on 5-3-1983 any action was taken by the Government. Now the upshot of the above discussion shows that the ten(10) instalments having been received and appropriated by the Government, the time would not be the essence of contract. As regards the remaining two instalments, the contractor has stated that having received the letter Annexure `E' and apprehending illegal and forcible action from the Government, he had filed Suit No,699 of 1983 wherein status quo was ordered to be maintained and subsequently by consent of the Government that status quo order was continued and injunction application in that suit was disposed of. The two orders passed in Suit No,699 of 1983 were passed on 7-12-1983 and 23-4-1984. In both the orders the presence of Mr. Abdul Sattar G.
16. Shaikh, the then Additional Advocate-General alongwith Mr. Hussaini, Executive Engineer is shown.
17. In the first order, it is shown that the status quo is to continue by consent on furnishing Bank Guarantee in the sum of Rs,20,00,000 by the contractor and injunction application was disposed of in such terms. The contractor has submitted that in these circumstances, having furnished such Bank Guarantee and already having paid the earnest money and security, he did not pay the remaining two instalments as the same were sufficiently secured under the orders of the Court. In these circumstances the explanation given by the contractor appears to be plausible. Thus, the issue is answered in negative to the effect that the time was not the essence of the contract but the amount of contract had to be paid within the contract period which had been paid or secured under the orders of the Court.
18. ISSUES. NOS. 1 AND 2 IN SUIT NO.320 OF 1984 I SUES NOS. 2 AND 3 IN SUIT N0,619 OF 1984 ' These are connected issues and, therefore, taken up together. The above facts show that after having taken the contract, the Contractor had to face some difficulties and the amount of recovery of toll at the two Plazas was considerably reduced on account of supernatural acts, unforeseen events and acts of the Lessor/Government. In evidence the plaintiff has stated that during the period of their contract, there was M.R.D. Movement with effect from 15th August, 1983 whereby some awe was created and people avoided travelling and the traffic flow had seriously been affected. Not only this but subsequently there were Local Bodies elections during which period the vehicles were being impounded by police for election duties and, therefore, the public as well as commercial institutes withheld their vehicles and did not bring the same on road which also adversely affected the recovery. The other factors were persistent heavy rains for a long period and imposition of section 144 by the Government preventing the removal of Reti Bajri from the National Park area in Scheme No,33. It was also pleaded by the contractor that the Government during the tenure of his contract opened a new arena for lifting of Reti Bajri from river Khar and thus the trucks did not pass through the toll plazas. The contractor has been writing such letters to Government which are on record as Exhs.5/1 to 5/4 but the Government failed to respond. The witness for the Provincial Government has stated that replies were given but no reply has been produced by him as the same is not available on the official record. The plaintiff has stated that he had also preferred an appeal to the Governor and was informed that the matter was referred to the Secretary for enquiry; and that enquiry was held wherein the Executive Engineer, Superintending Engineer and Chief Engineer of the Highway Department took part. The outcome of the enquiry is contained in the report Exh.5/5 which is a letter written by the Chief Engineer Highway Department to the Secretary, Government of Sindh Communication and Works Department bearing No,H (16)/165-C(iii)/321, dated 1-11-1983. This letter clearly shows that the four grounds which were taken into consideration are the persistent heavy rains, MRD agitation, impounding of public vehicles by police for election and emergency duty and withholding of commercial vehicles by the proprietors out of fear of their being impounded by police during elections. This letter also shows a comparison of traffic intensity and shows that for the above reasons, the traffic had reduced by 34% and thus the contractor was entitled to proportionate rebate and thus a total sum of Rs,18,64,000 was recommended to be remitted from the bid money leaving the remaining total bid money of Rs,1,31,66,000 which would be still higher by Rs,6,66,000 than the second highest bid amounting to Rs,1,25,00,000. In support of his above contention, the plaintiff has also produced Press cuttings of the newspapers through his two witnesses, namely, Ahmedul Haque Siddiqi and Naeem Qamar which goes to support the contention of the plaintiff. The plaintiff has also examined his Accountant Raziq All Khan, who has produced statement of payments made to the Provincial Government by the contractor as Exh.6/A. He has also produced a statement as Exh.6/B showing the daily recoveries at the toll plazas during the contract period and also statements showing expenses incurred by the contractor. Mr. AA. Muhammadally, the learned counsel who has argued the matter for the Provincial Government has submitted that no such statements are produced by the plaintiff but the above documents are very much on record. It may also be observed that not a single question has been put to the contractor, who has examined himself as his witness in both the suits, to the effect that he has not suffered any loss on account of these events or that these events did not take place. In these circumstances, the statements of the contractor in the two suits to this extent stand admitted. Not only this but the contractor in his evidence has further stated that during the period of three months i,e, October, November and December, 1983 the Government had imposed restrictions under section 144, Cr.P.C. At the instance of Highway Department which restricted the removal of Reti Bajri from beyond the toll plazas and, therefore, also the traffic flow was reduced. Of course, this factor has not been taken into consideration in the enquiry as disclosed in letter dated 1-11-1983 written by the Chief Engineer Highways Department.
19. ' Now the question is that when a person bids for a contract of recovery of toll plazas, he makes his calculations on the basis of the normal flow of traffic prevailing during the period immediately before making such bids or an average of the said period. Now amongst the five factors pleaded by the contractor on which he is suffering loss, the two important factors are reduction in flow of traffic on account of holding of Local Bodies Elections for which the vehicles were impounded by the police and for that fear the commercial vehicles were not brought on the roads by the proprietors. The other factors are those of imposing restrictions under section 144, Cr.P.C. Restricting the removal of Reti Bajri from the National Park area and also opening a new outlet for Reti Bajri at Khar river which again further affected the traffic of Reti Bajri trucks through the toll plazas. All these acts are shown by the defendants which have adversely affected the recovery of toll by the contractor. In such circumstances, the liability rests squarely on lessor also to allow such rebate or remission to the contractor. The learned counsel for contractor has placed reliance on the provisions of section 67 of the Contract Act and has submitted that not only the Government has neglected to afford reasonable facilities to the contractor but has committed acts which have adversely affected the contractor. The learned counsel for contractor has then submitted that other ground i,e, M.R.D. Agitation had also affected the traffic flow which fact stands admitted in the above referred to letter of Chief Engineer and which fact has not been denied in the cross- examination by the Government's counsel. The last factor taken into consideration is the heavy rains for a considerably long period in the area which factor also stands admitted in the above referred to letter of the Chief Engineer. The learned counsel for contractor has thus argued that because of these unforeseen reasons, supernatural acts and the acts of Government, the plaintiff has suffered the loss and is entitled to compensation therefor. He has submitted that 'Act of God' has been defined in Law Lexicon, second edition as under; "Act of God.---Vis major, a direct, violent, sudden and irresistible act of nature, which could not, by any reasonable care, have been foreseen or resisted. Whartin's Law Lexicon. In other words, it may be regarded as an accident, due directly and exclusively to natural causes without human intervention which by no amount of foresight, pains or care, reasonably to have been expected could have been prevented."
20. ' He has further placed reliance on the case of M/s. Abdul Rahman - Abdul Ghani v. M/s. United Oriental Steamship Co., Karachi PLD 1959 Dacca 536 wherein the Act of God has been defined by a Division Bench as under; `Act of God' is a mere short way of expressing the proposition that a common carrier is not liable for any accident as to which he can show that it is due to natural causes directly or exclusively without human intervention and that it could not have been prevented by any amount of foresight paid and care reasonably to be expected from him."
21. ' The learned counsel has further submitted that the above facts would show that in view of the facts discussed under Issue No,1 in Suit No,619 of 1983 it would be assumed that time is not essence of the contract and by having accepted and appropriated the instalments received beyond the time as contemplated in the agreement cause 1(b) the Government has waived the conditions of imposing penalty. He has placed reliance on the case of Molvi Mahboobur Rahman v. Government of N.-W.F.P. PLJ 1985 FSC 10 wherein their Lordships have been pleased to hold that keeping silent will be considered equivalent to consent in cases where it be the duty of the concerned person to speak or express his willingness. In the same case it was held that the doctrine of silence (Sakoot) is that where a person to seek redress of his grievance does not do so for sufficiently long period, the same would amount to his consent to bring his case within the scope of mutual agreement.
22. From this the learned counsel has argued that when the Government for a period of six months remained quiet and did not impose any penalty or take any action for cancelling the agreement of the present contractor and re-auctioning, it would amount to waiver on the part of the Government and they would not be entitled to impose such penalties. The learned counsel has also placed reliance on the case of Mustaqim v. Sher Bahadur PLD 1962 (W.P.) Pesh. 14 which is also on the point of waiver and estoppel. In this case a learned Division Bend of the Peshawar High Court had held that waiver is an intentional relinquishment of a known right; and that it may consist of positive acts of relinquishment or a conduct such as would warrant inference or relinquishment. The learned counsel has then placed reliance on the case of M/s. Badruddin H.
23. Mavani v. Government of Pakistan, Ministry of Food and another 1981 CLC 339 on the same point.
24. ' As against this Mr. AA. Muhammadally, the learned counsel for Provincial Government has argued that in the present case the contractor would not be entitled to remission or rebate, come what may, in view of clause 9 of the agreement. Of course clause 9 reads as under: "No remission or reduction in the amount of lease money will be allowed to the lessee on account of any diminution or reduction of the traffic over the Highway or in the income from the toll collected under the lease dues to any cost whatsoever."
25. I am afraid I cannot agree with the learned counsel appearing for the Provincial Government in view of the above evidence and the case-law cited by the learned counsel for contractor. In the present case, there is no cross-examination of the contractor on the facts that the events complained of by him had not taken place or that because of those events, he had not suffered any loss which goes to imply that the statement of the contractor to this extent was admitted by the Provincial Government in view of the judgment given by this Court in the case of Muhammad Suleman v. Abdul Ghaffar 1982 CLC 1717.
26. ' The upshot of the above discussion is that on account of the said events the contractor has suffered a loss for which he is entitled to rebate which fact is also admitted by the Chief Engineer Highways in his letter dated 1-11-1983. Accordingly, he will be entitled to the rebate/remission of Rs,18,64,000. However, the above letter does not show if the loss suffered by him on account of imposition of restrictions under section 144, Cr.P.C. Has been taken into consideration. There is no denying the said fact of imposition I of the restrictions by the Provincial Government. In these circumstances, the contractor would certainly be entitled to rebate on that score also. Since there is no direct calculation of such loss, I would allow a token amount of loss by way of rebate to the contractor at the rate of 10% of the rebate already recommended which comes to Rs,1,86,400.
27. ISSUES NOS.4, 5 AND 6 IN SUIT NO. 619 OF 1983.
28. ' These issues are to be decided in view of the findings on the above issues already discussed. As held in the above issues, the contractor is entitled to the rebate and, therefore, the Provincial Government would be estopped from enforcing the claim/penalties against the contractor as the same stands waived and cannot be so enforced. Thus, it is also held that the Provincial Government has not suffered any loss. Specially the loss calculated by the Provincial Government on the basis of reduction in bid money for subsequent years. Even the reduction in recovery of daily toll as shown by the Provincial Government being on account of factors discussed earlier in issues, the same would not be said to .Be a loss suffered by the Provincial Government. Accordingly, these issues are answered against the Provincial Government and it is held that they are estopped from enforcing the claim against the contractor as the Provincial Government has not suffered the said loss and/or are not liable to claim the amounts as mentioned in this suit. ISSUES NOS.3 AND 4 IN SUIT NO.320 OF 1984, ' In view of the above discussion certainly the cause of action has accrued to the plaintiff. Cause of action has been defined to mean "a bundle of facts giving rise to a right which the plaintiff will have to prove if traversed by the other side". As discussed above, it is clear that the contractor has suffered a loss and he is entitled to such remission in law. Accordingly, I answer these two issues in favour of the contractor.
29. ISSUES NO. 5 IN SUIT NO.320 OF 1984.
30. ISSUES NO. 7 IN SUIT NO. 619 OF 1983.
31. ' The upshot of the above discussion is that the contractor who is plaintiff in the first suit and defendant in the second suit is entitled to remission and also refund of his security deposit as well as earnest money. The contractor had also deposited a further security amount of Rs,1,50,000 for the bid for the following period which too has been forfeited by the Government, the amount of earnest money and security deposit are adjusted against bid money as held by Hon'ble Supreme.
32. Court. Accordingly, the contractor would be entitled to refund of the following amounts from the Provincial Government. {{TABLE}} (i)Rebate as per letter dated 1-11-1983Rs.18,64,000.00
(ii) 10% rebate on account of imposition of restrictions under section 144, Cr.P.C.Rs.1, 8.400.00 Total:Rs.20.50.400.00 ' Accordingly, the Suit No,320 of 1984 is decreed in the sum of Rs,20,50,400 with mark-up at 14% from the date of the institution of the suit till payment and costs. Suit No,619 of 1984 being counterblast of