1. Before dealing with the individual applications I feel it will be better if brief facts leading to the dispute between the parties are narrated. Here I might also mention that the list of case-law relied upon by the parties is so large that instead of referring to these in the body of this order, save those which I found to be important, I have listed these in Annexure to this order to avoid inhibiting the flow of discussion herein.
2. ' It seems that in 1985 the Government of Pakistan (hereinafter referred to as G.O.P.), the defendant No,2 in these proceedings formulated a long term energy strategy into the next two decades to introduce the private sector to power generation in Pakistan with the assistance of World Bank in response to this general invitation for participation by the private sector two companies being Xenel Industries Limited of Saudi Arabia and Hawker Siddeley Power Engineering Limited of the United Kingdom submitted proposals for the establishment of two separate 600 M.W. Stations, but later revised their proposals and jointly offered a 1292 M.W. oilfield plant of electricity. It was decided that the plant would be located near the Hub River Estuary in Balochistan. With the cooperation of Government of Balochistan the requisite land was acquired or purchased. The plaintiffs' company was then created and to put the entire scheme into operation following three agreements were signed:
(1) Implementation Agreement (1-A), dated 29-11-1994 signed between the plaintiffs and G.O.P.
(2) Fuel Supply Agreement (F.S.A.), dated 28-9-1994 signed between the plaintiffs and P.S.O.
(3) Power Purchase Agreement (P.P.A.), dated 3-8-1992 signed between the plaintiffs and defendant No, 1 .
3. The I.A. was to govern the relationship between the plaintiff and G.O.P. and under this agreement plaintiffs was responsible for developing, designing, financing, insuring, constructing, owning, operating and maintaining the plant and for appointing contractors acceptable to the Government. On the other hand the Government through this agreement had undertaken to guarantee the obligations of defendant No,1 and P.S.O. and also State Bank of Pakistan in relation to the provision of foreign exchange insurance cover for plaintiffs foreign currency financing costs.
4. The F.S.A. was meant to regulate the supply of residual fuel oil (R.F.O.) for use by the plaintiffs for their plant. Under this agreement plaintiffs were bound to purchase all their requirements of R.F.O. from P.S.O. The performance of all obligations of P.S.O. under the F.S.A. were guaranteed by G.O.P. pursuant to a guarantee issued under I.A. P.P.A. was an agreement between the plaintiffs and the defendant No,
1. Under the agreement the plaintiffs were to generate and deliver electricity into the defendant No,1 Grid and in return the defendant No,1 was to pay the plaintiffs for the capacity made available and the electrical energy delivered in accordance with a tariff formula agreed upon. It seems that subsequently certain variations were made in the tariff and such variations were incorporated into the P.P.A. through certain amendments, which were:
(a) A Supplemental Deed, dated 16-11-1993;
(b) An Agreement, dated 24-2-1994 (hereinafter referred to as the first amendment);
(c) Agreement, dated 17-9-1994 (hereinafter referred to as the second amendment);
(d) Supplemental Deed, dated 5-3-1997.
5. The parties had agreed that the proper law of the P.P.A. would be the law of England and the agreement also included an arbitration clause whereby the parties were required to resolve their disputes or differences through arbitration in London under the rules of arbitration of the International Chamber of Commerce.
6. The construction of the plant commenced in 1993 and became fully operational on 31-3-1997. The financial close occurred in 1995. This was obviously a very big project and its cost was fixed in September, 1994 at US $ 1520.76 Million in view of the enormity of the project there were numerous interests involved which led to somewhat uneasy relationship between the various parties to- the contract. Nevertheless, the plant. begun to function and the P.P.A. was put into operation. This uneasy relationship between the plaintiffs and defendant No,1 finally came out into the open when a writ petition was filed in the Lahore High Court on 8-5-199$ by one Azizul Haq Qureshi, who joined in the petition amongst others, the plaintiffs, and the defendant No,1 and challenged defendant No,1 's decision to enter into the second amendment which was executed by one Saeed Akhtar Niazi, the Member Power on behalf of defendant No,1 on 17-10-1994. The main contention of the petitioner in this petition was that the defendant No,1 had in collusion with plaintiffs fixed exorbitant tariffs through the second amendment and that it was not valid and hence not binding on the defendant No,
1. For some reasons the Ehtesab Bureau was also impleaded as a respondent in this petition.
7. The Honourable Lahore High Court granted interim relief to the petitions whereupon the plaintiffs appeared from those orders to the Honourable Supreme Court. In response to the directions of the Honourable Supreme Court, the defendant No,1 made a statement, dated 27-6-1998 to the effect that the second amendment, dated 17-9-1994, allegedly signed on 17-10-1994 was illegal and fraudulent document and, thus, not binding on the defendant No,l. Consequently, defendant No,1, was not obliged to make any payment based on the second amendment and also reserved its rights to claim refund of the payments made so far pursuant to this amendment. It is significant to note that in spite of such statement having been made the defendant No,1 continued to act on the P.P.A. and also continued to make payments as per terms thereof to the plaintiffs. The proceedings before the Honourable Supreme Court concluded in Civil Petition No,703 of 1998 by order, dated 3- 7-1998, which was a consent order where under the defendant No,1 was directed not to pay in excess of Rs,845 Million per month to the plaintiffs on the basis of the present quantum of energy supplied to WAPDA which amount would be in addition to the energy charges. This order was to hold the field till the time the Lahore High Court decides the question of maintainability of the writ petition and also the merits. The Lahore High Court was also directed by this order to dispose of the said writ petition within three months from the date of reopening of the Court after summer vacation, but this did not happen. The petition is still pending in Lahore High Court.
8. Following the said order of Honourable Supreme Court the defendant No,1 continued to pay Rs,845 million per month to the plaintiffs on account of capacity purchase price (C.P.P.). It seems that the Honourable Supreme Court during the hearing emphasised upon the parties to resolve their disputes through negotiation. Following the desire of the Honourable Supreme Court a process of negotiation was initiated through meetings between the parties. However, later it appears that the Attorney-General of Pakistan made a statement on or about 24-6-1998 in the Honourable Supreme Court and closed the door for any further negotiation. This led the plaintiffs to invoke the arbitration clause in accordance with clause 15 of the P.P.A. and to file a request for arbitration to the International Chambers of Commerce (hereinafter referred to as I.C.C.) for resolution of the dispute between the parties. The relief sought by the plaintiffs in the arbitration proceedings was for a declaration to the effect that the Second Amendment is valid and in accordance with the terms of the P.P.A. and the defendant No,1 was bound by the obligations thereunder. Upon receiving this request for arbitration the I.C.C. Secretariat sent a notice to the defendant No,1, which notice was replied by defendant No,1 vide their letter, dated 4-8-1998 with remarks that they were still seeking a negotiated settlement between the parties and hence there was no need to respond to the request for the arbitration. Upon subsequent correspondence between the I.C.C. Secretariat and the defendant No,1, the defendant No,1 initially appointed Mr. Justice (Retd.) Muhammad Gul as an arbitrator on their behalf but upon objections being raised on his appointment as being contrary to the rules, on 31-10-1998 the defendant No,1 nominated Dr. Kamal Hussain of Bangladesh as its arbitrator. Subsequently, the defendant No,1, also paid their share of the initial arbitration cost being US $ 60,000 through after much ado.
9. While the arbitration panel was being set up the plaintiffs received a letter, dated 11-10-1998 signed by Akhtar Parwez Akhtar, Chief. Engineer (W.P.P.O.) on behalf of WAPDA (hereinafter referred to as Termination Letter) which read as follows:-- "WAPDA on examination of the events leading to the execution of:
(i) Supplemental Deed, dated 16-11-1993.
(ii) Amendment No,1, dated 24-2-1994. (ii) Amendment No,2, dated 17-9-1994. and their alleged Government approvals, their implementation and their effects have arrived at the conclusion that the said documents are illegal, fraudulent, collusive, without consideration, mala fide and designed to cause wrongful loss to WAPDA and the Government of Pakistan with consequential wrongful gain to HUBCO. These documents are in fact result of a criminal conspiracy as borne out by Fist Information Report F.I.R. No,59 of 1998 registered on 3-11-1998.
(2) WAPDA, therefore, hereby notifies that the said, agreements are void ab initio and are of ho legal effect with regard to the rights and obligations of the parties under Power Purchase Agreement, dated August 3rd, 1992.
(3) The losses occasional to WAPDA by such wrongful acts are in excess of Rs,16 billion. HUBCO is hereby called upon to forthwith refund the said sum of Rs,6 billion for the present with interest thereon at 18% per annum.
10. (4)This notice is without prejudice to WAPDA claiming additional amounts then due to WAPDA on account of HUBCO's acts of omission and commission in violation of Power Purchase Agreement which are presently under examination and scrutiny.
11. (5)Additionally, this notice does not in any manner whatsoever limit or otherwise affect the rights of WAPDA to initiate, continue and prosecute the concerned individuals and parties for criminal or penal responsibility under the laws of country in addition to the F.I.R. already lodged."
12. Along with this letter was attached a letter, dated 4-9-1998 by G.O.P. through which G.O.P. consented to the termination by defendant No,1 of the supplemental deed, dated 16-11-1993, first amendment, dated 24-2-1994 and second amendment, dated 17-9-1994 to the P.P.A. At the same time it appears that number of other measures were taken by the defendants in keeping with the lender of this letter such as the registration of F.I.R. No,59 of 1998 against the officials of the plaintiffs putting some of item on Exit Control List and apparently some notices under Income Tax Ordinance. The plaintiffs denied the allegations contained in the termination letter and followed it up by writing to the I.C.C. Secretariat vide letter, dated 20-10-1998 to enlarge the scope of arbitration by including the matters arisen out of the termination letter.
13. It was at this stage that this suit was filed on 10-11-1998 with an avowed purpose of preserving status quo as between the parties pending the resolution of their dispute in arbitration and the enforcement of the arbitral award in Pakistan and to prevent defendants from committing a repudiatory breach of the agreement. According to the plaintiffs the suit was in fact a conservatory suit in aid of arbitration. The plaintiffs specially pleaded that since the arbitration being resorted to was not governed by the Arbitration Act, 1940, consequently, they did not initiate proceedings under sections 20 and 41 of the Arbitration Act, 1940, which would have been the correct course to adopt by the plaintiffs if the arbitration to be held was under the Arbitration Act, 1940.
14. It seems that the defendant No,1 did pay the required Rs,845 million to the plaintiffs on the 1st of November, 1998 even after having issued the termination letter, dated 11-10-1998 but subsequently, on 1-12-1998, the defendant No,1 paid Rs,730,18.7,954 and thereafter, have been continuing to pay the said sum, which incidentally is the sum agreed upon as per the original P.P.A. Alongwith this suit C.M.As. Nos.9751 of 1998 and 9752 of 1998 were filed. Through C.M.A. No,9751 of 1998, the plaintiffs seek to restrain the defendants from giving effect to the termination letter, dated 11-10-1998, whereas through C.M.A. No,9752 of 1998 the plaintiffs seek to restrain the defendant from invoking the jurisdiction of any Court or Tribunal or administrative forum or instituting any judicial, quasi- judicial or administrative action in Pakistan in the furtherance of the termination letter, dated 11-10- 1998.
15. When these applications came up before learned Single Judge of this Court on 12-11-1998 he passed an ad interim order whereby he restrained the defendant No,1 from implementing their letter, dated 11-10-1998. Later when these applications came up for hearing again on 17-11-1998 apparently a statement was made by the learned counsel for the defendant No,1 that they would continue to comply with the orders of the Supreme Court, dated 3-7-1998, whereupon the learned Single Judge felt that continuing of the status quo as granted by him earlier may bring this Court into conflict with the orders of the Supreme Court and, consequently, he declined to extend the ad interim status quo order. Thereafter, when the payments were to be made by defendant No,1 to the plaintiffs on 1-12-1998 the amount was reduced to the figure stated above.
16. This was followed by yet another application by the plaintiff being C.M.A. 10602 of 1998. The contents whereof were substantially the same as in C.M.A. No,9751 of 1998. This application was obviously necessitated because of the change in status quo brought about by the defendant No,1 subsequent to the ad interim orders not being confirmed by the learned Single Judge because of which the defendant No,1 had reduced the amount of C.P.P. that they were paying to the plaintiffs consequent upon the consent orders of the Supreme Court.
17. After a short gap of about a month, while the aforesaid applications were still pending in this suit before this Court, it appears that the defendant No,1 filed a suit before the Senior Civil Judge, at Lahore on 16-1-1999, praying for a decree for the amounts allegedly paid in excess being Rs,173,117,380.81 and for injunction to restrain. the plaintiffs from proceedings further with the arbitration before the I.C.C. Court and from encashing the stand by letter of credits. Alongwith this suit an application was filed for temporary injunction to restrain plaintiffs from encashing letter of credit established by the defendant No,1 in respect of alleged payments on tariff and to restrain the A.N.Z. Grindlays Bank from making any such payment and also to restrain the plaintiffs from proceedings with arbitration before the I.C.C. Arbitration Tribunal. The learned Senior Civil Judge, Lahore allowed these applications by an ad interim order, dated 16-1-1999. Following this order the plaintiffs filed C.M.A. 399 of 1999, under Order 39, Rule 2, read with section 151, C.P.C. whereby they sought to restrain the defendant No,1 from prosecuting the Lahore suit including the interlocutory applications and also seeking any extension of the ad interim ex parte order passed by the learned Senior Civil Judge, Lahore. When this application came up before me for hearing on 22-1-1999, I directed the parties to ignore the Lahore Senior Civil Judge order, dated 16-1-1999 in so far as it restrained the parties from proceedings with the arbitration. Subsequently, when this matter came up before me again on 16-2-1999, the plaintiffs had filed C.M.A. 843 of 1999, under Order 39, Rule 2(3), C.P.C. seeking to initiate contempt of Court proceedings against the defendant No,1 for writing a letter to the I.C.C. Tribunal, which according to them brought the Court into contempt. I, therefore, felt it necessary at the time to clarify my earlier order to the extent that my order was to hold the field till the disposal of C.M.A. 399 of 1999. Subsequent, to my order, dated 22-1-1999 the defendant No,1 appealed from the order before a Division Bench of this Court. Upon hearing the parties the Division Bench then passed a consent order whereby the parties agreed not to proceed with the arbitration till 28-3-1999 and the matter was sent to me to dispose of all pending applications in this suit. It seems subsequently, the plaintiffs filed an application under section 10, C.P.C. in the Lahore proceedings whereby they sought that the suit be stayed. As a result the Lahore Senior Civil Judge declined to pass any order to avoid any conflict between the orders of this Court and that of Lahore District Court. It is significant to note that while there was a consent order of the Division Bench of the Sindh High Court, dated 20-2-1999 holding the field whereby the parties had agreed not to proceed with the arbitration till 28-3-1999 the defendant No,1 filed a Revision Petition No,343 of 1999 against the Lahore Senior Civil Judge's order, dated 20-2-1998 on plaintiffs' application in which they obtained an ad interim order, dated 12-3-1999 to the effect that the parties will not proceed to arbitration till 24-3-1999.
18. The above description of events would show that the verbose pleadings as well as myriad applications and the Lahore suit have been filed only for one objective in so far as the plaintiffs are concerned this objective is to ensure that the dispute is placed before the I.C.C. Arbitration Tribunal for resolution in accordance with the terms of P.P.A. while the objective of the defendants is to somehow prevent it from being so placed. The filing of the suit in Lahore has complicated the situation further- inasmuch as after acceptance of the jurisdiction of this Court the defendant No,1 have chosen to open a new front and thereby have brought two Courts into an unfortunate conflict.
19. Since all these applications before me are inter-connected and are directed towards the objective that I have mentioned above, whether one looks at it from the point of view of the plaintiffs or the defendants, I would decide all these applications by a common order.
20. The main contention of the plaintiffs is that the initial problems with regard to the second amendment constituted a dispute under clause (15) of the P.P.A. consequently, their attempt to refer the matter to arbitration was in accordance with the terms of the agreement and that the parties are bound to proceed to arbitration. They further contend that upon issuance of the termination letter, dated 11-10-1998 more issues/disputes were created in relation to the supplemental deed and the first amendment and consequently, the plaintiffs were justified in expanding the scope of arbitration by including these in it as well. They further contend that the I.C.C. Rules of arbitration permit them to take conservatory measures in aid to arbitration as per Rule No,23 which read as follows:-- "(1) Unless the parties have otherwise agreed as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons or of an Award, as the Arbitral Tribunal considers appropriate.
(2) Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof."
21. Consequently, the plaintiffs say that they are justified in filing this suit in aid of arbitration and to prevent repudiatory breach of the agreement in fact they claim that since the ad interim status quo order passed in C.M.A. 9751 of 1998 was not extended the defendant No,1 got their opportunity to issue their termination letter on 11-10-1998. The learned counsel for the plaintiffs look pains to explain that the aim of this suit is not to have this Court determine the validity or otherwise of the amendments of the P.P.A.because that according to him would be decided by the Arbitral Tribunal.
22. On the other hand the defendant No,1 maintains that the fact that the plaintiffs have chosen to have the dispute decided by this Court means that they have chosen the forum and they cannot now claim to have the dispute resolved through Arbitral Tribunal. According to the counter- affidavit that they have filed, the defendant No,1 clearly state that since now this Court is seized of the matter, the plaintiffs have no right to proceed to arbitration. Besides, the defendant No,1 maintains that they were fully justified in issuing the termination letter because the amendments to tariff that were incorporated in the amendments to P.P.A. had been obtained through exercising undue influence over the officials of the defendant No,1 by the plaintiffs and by indulging in fraud with the intention to defraud the defendant No,1 and cause great loss to the national economy. It is significant to note that the defendant No,1 have never challenged the arbitration clause itself and indeed they have admitted that the P.P.A. without the amendments is valid and subsisting it would seem that since the arbitration clause forms a part of the P.P.A. It too, is valid and subsisting indeed in their counter-affidavit they have asserted that the defendants are not obstructing the process of arbitration. Besides the fact remains that the plaintiffs have nominated their arbitrator for the I.C.C.
23. Tribunal and have also paid initial costs amounting to US $ 60,000.
24. It is contended by the learned counsel for the defendant No,1 that the incorporation of the disputed amendments to P.P.A. were obtained by plaintiffs through the machination of various officials of defendant No,1, who were under the influence of the plaintiffs. The amendments, thus, being fraudulent and contrary to public policy a dispute regarding these issues can only be determined by a Court of law and not by an Arbitral Tribunal. The filing of suit before the Senior Civil Judge by defendant No,1, therefore, has to be seen in this light.
25. The plaintiffs on the other hand have contended at great length that they would be in great quandary. If the C.P.P. is not paid to them as per the terms of the agreement including the amendments, and that their plant would certainly close down resulting in their equity being wiped out and the Lenders taking control of the project. According to them arbitration is the only mode available to the parties as per their agreement to resolve their dispute.
26. Now it is an admitted position that there is a valid arbitration agreement between the parties to resolve disputes. It may be appropriate to reproduce clause (15.4) of P.P.A. which is as follows:-- "15.4. Arbitration.--- (a) If the dispute cannot be settled within forty-five (45) days by discussions and referral to an expert is not required by this Agreement or, if referral to an expert was required but the dispute was referred for arbitration in the circumstances set out in section 15.3(g), then the dispute shall be finally settled under the provisions of sections 15.4 to 15.7.
(b) If and when G.O.P. has implemented the convention on the settlement of Investment Disputes between States and nationals of other States (the 'Convention'), any dispute arising out of or in connection with this agreement shall (regardless of the nature of the dispute but without prejudice to the provisions of this agreement requiring any matter to be referred to an expert for final determination) be referred to arbitration and finally settled in accordance with the Convention and the Rules of Procedure for Arbitration proceedings of the International Centre for Settlement of Investment Disputes (the 'Centre') established by the Convention (the 'I.C.S.I.D. Rules') and the parties hereby consent to arbitration thereunder. The parties are agreed that the company shall be deemed a foreign controlled company for the purposes of Article 25(2)(b) of the Convention so long as not less than thirty per cent (30%) of the shares of the Company are held by Foreign Investors. Arbitration proceedings conducted pursuant to this section 15.4(b) shall be held in London, England.
(c) Unless and until G.O.P. has implemented the Convention by an Act or an Ordinance confirmed by a Act, or if for any other reason the dispute cannot be finally settled pursuant to the terms of the Convention, any dispute shall be finally settled by arbitration in London, England under the Rules of Arbitration 'of the International Chamber of Commerce (the "IC C': Rule') by one or more arbitrators appointed in accordance with the I.C.C. Rules.
27. As from the later of (i) the date on which the shareholding of the Foreign Investors falls below thirty per cent. (30%) of the shares and other securities convertible into shares issued by the Company or
(ii) the date on which no amount is owned or capable of being owed to the Foreign Currency Senior Lenders' (as defined in the Implementation Agreement) under the relevant Loan Agreements, then the dispute shall be finally settled by arbitration under the Arbitration Act, 1940 of Pakistan Arbitration proceedings conducted pursuant to this section 15.4(d) shall be held in Islamabad, Pakistan.
(e) No arbitrator appointed pursuant to section 15.4(b). Section 15.4(c) or section 15.4(d) shall be a national of the jurisdiction of either party to this agreement or of the jurisdiction of any of the initial shareholders nor shall any such arbitrator be an employee or agent or former employee or agent of any such person.
(f) The language of any arbitration under section 15.4(b), section 15.4(c) or section 15.4(d) shall be English."
28. Notwithstanding the eloquence of counsel from both sides and their attempt to pilot me through the choppy seas that International contracts encompass in the commercial world of today, in effect that only questions before me are whether the dispute that has arisen and which is a subject-matter of these proceedings falls within the definition of dispute as laid down in the arbitration agreement above. If so, it is obvious that as per law as it has developed in England (and indeed even in Pakistan) since the law of P.P.A. is the English law, the parties would be bound to proceed to arbitration as per terms agreed upon unless the very existence of arbitration agreement is challenged or it can be shown that London would not be forum convenient. The second question before me is whether a suit such as this is maintainable and whether a Court of a Province of a Federation can injunct parties from proceeding with legal proceedings in a Court outside its jurisdiction in so far as the first question is concerned, there is no doubt that there is a dispute between the parties as to whether the amendments that were introduced in it subsequent to the signing of P.P.A. were fraudulent or not. If the dispute had arisen on commercial grounds then without doubt the dispute could only be decided through arbitration. But this is not so, the defendant No,1 have laid great stress on the amendments being tainted with corruption and hence having become invalid. The question that is posed now is what have the defendant No,1 brought on record to show that such is the case. The learned counsel for defendant No,1 Mr. Umar Bandial painted ;a graphic picture of how the initial letter of intent for the project was signed in 1988 in atmosphere of great bonhomie and how the defendant No,1 and G.O.P. provided maximum facilities to the plaintiffs and how they conceded to the project being converted from Build Operate Transfer (B.O.T.) to build own operate (B.O.O.) in spite of the resultant long term loss to defendants and how they overlooked and condoned the delays in attaining financial close by the plaintiffs all in the interest of the project which was essential for national economy. But then dramatically he exclaimed that they (plaintiffs) breached their (defendants) trust. How did they do this According to him they commandeered the allegiance of certain officials of defendant No,1 or connected organization through use of peff who, even though they were lowly officials and not authorized to sign any documents, were prevailed upon to initial Revised Schedule 6 to first supplemental deed which enhanced the tariff and substituted the machine readable model by pages after pages of illegible tables. These and other such documents were then incorporated in the amendments which were signed by authorised Member/Chairman of defendant No,1 unknowingly. The villains of the piece, according to Mr. Bandial, was one Malik Muhammad Ashraf, who was Managing Director of WAPDA Power Privatisation Organisation (W.P.P.O.) and had initialled all tables for calculation of tariffs and other such documents which increased the tariffs many folds. The other such individual was Mr. Saeed Akhtar Niazi former Member, WAPDA, who even signed one of the amendments as a Member of WAPDA, thereafter, and the plot gets thicker and waters murkier. Mr. D.M. Woodroffe, Chief Executive of HUBCO because of his contacts at the highest level in the then political hierarchy. became imperious and arrogant because of the influence that he wielded through the largesse that he had at his disposal for distribution amongst the officials of WAPDA. He particularly showed me a letter written by the said Woodroffe to explain his attitude. The tone of letter appeared to be derisive and did display certain complacence but such complacence is not unusual in multinational companies supremos in the modern day and age and it is often indicative of their misplaced self-righteousness rather than their consciousness of their power to manipulate those that are allegedly in their pay, as defendant No,1 would have me believe in any case this tone routine "unseemly and somewhat strident letter could not be the foundation upon which Mr. Badial could build the edifice of his corruption theory.
29. I must admit I was quite intrigued with this corruption theory in particular with the role of the individuals whose names were mentioned. namely Malik Ashraf the Managing Director of W.P.P.O.
30. Mr. Niazi, Member W.P.P.O. and Mr. Woodroffe the role of Mr. Woodroffe, being a foreigner and unconnected with the Government, I could not probe but I could certainly enquire as to who were the two Pakistanis and as to what became of them in the aftermath of the cleansing exercise that WAPDA launched subseqUently. To my utter surprise, I found through the courtesy of Mr. Bandial as well as Mr. Pirzada. that Mr. Niazi the signatory to the second amendment that is rejected by defendant No,1 today, holds an important position in the Government as Member, National Electric Power Regulatory Authority. As for the other villain of the piece Mr. Malik Ashraf contrary to what Mr. Bandial would have me believe that he was a lowly official and as such a prey to temptation, he was the Managing Director of W.P.P.O. In my anxiety to arrive at the truth when I learnt that a General Manager of W.P.P.O. Mr. Akhtar was present in Court, I examined him on oath. According to him W.P.P.O. is an organization that is a part of WAPDA and is responsible for dealing with all private organizations that WAPDA is engaged within a contracted relationship. Admittedly Malik Ashraf was its Managing Director and hence an authorised individual to deal with HUBCO. Is he then, after the dastardly act of initialing Revised Schedule 6 which plunged WAPDA into depth of despair, biding his time in utter desperation. Not the witness says, he is leading a retired life in Lahore. It is obvious, therefore, that these two gentlemen (sic) could not be all that bad. What has the G.O.P. (defendant No,2) to say about this? G.O.P. has neither filed any counter-affidavit to any application nor have made any appearance. On 22-1-1999 when this case came up before me the first time. The Deputy Attorney-General did appear but subsequently, he remained absent. No counter-affidavit has been filed by defendant No,2 to any of the applications. Finally, I felt it was necessary for me to hear G.O.P.'s point of view, because after all it were the Government officials, who were being accused of causing loss to the State, but in spite of my specific notice to Deputy Attorney-General to appear on 22-3-1999, he failed to appear. The only inference one can draw from this lackadaisical approach of the G.O.P. is that G.O.P. is either unconcerned with this battle royalty between HUBCO and WAPDA or they wish WAPDA to tend for itself. But in either case the fact remains that their silence is indicative of condonation of the acts of their officials. Either these officials then did nothing wrong of what they did was with G.O.P.'s consent. Be that as it may, their silence certainly knocks the bottom out of Mr. Bandial's arguments.
31. Confronted with a situation where there were no facts or proof to support Mr. Bandial's change of corruption, I decided to examine the contents of the plaint filed by defendant No,1 in Lahore.
32. Unfortunately, these were just as devoid of concrete facts as the counsel's arguments. The plaint appeared to be more a rhetorical rendering of a charge-sheet against the previous administration than an averment of facts that it ought to be in short it was of no assistance to me at all to ascertain the facts. The leniency of succeeding administration criticising and attributing false motives to its predecessors is endemic in our society be it in politics civil service or even in large corporate entitles. But to talk of this would be to enter the realm of politics, with which judiciary has nothing to do. In so far as Commercial Law is concerned, judiciary is concerned with the acts of the State and not the Government because it is the State which represents the collective conscience of a people and hence has a certain quality of continuity in a democratic polity unlike Hobbes leviathan of yesteryears. When a Government, thus, enters into a contract it does so as the mouthpiece of the State and, thus, the State lends its quality of continuity to such contracts which survive any change of Government. This encompasses international contracts. Were it not so it will lead to the collapse of the entire structure of the commercial world, where no country can now afford to live in splendid isolation. It is perhaps for this reason that the G.O.P. in this case has opted for reticence.
33. This is not to say that once a mala fide act has been perpetrated by one Government there is no way that it can be interfered with even if there were proofs of such mala fide. Indeed most countries of the world have laws to deal with situation such as this and it was heartening that such a law was also promulgated in Pakistan through Eradication of. Corrupt Practices Ordinance, 1998, which it appears was specially designed for contracts in the energy sector. If there were reasons to believe that corruption at a massive scale had occurred B in case of the power project, there was nothing to prevent the G.O.P. from proceeding against the defaulters under the said Ordinance and thereby rescind the agreements, which then let alone being criticized would have been lauded universally. But it is surprising to see that this Ordinance was allowed to lapse and during its currency no action was initiated against the plaintiffs under it but after it lapsed indirect measure have been initiated to, what Mr. Pirzada says, bring the plaintiffs to its knees and to wipe out its equity. The question that arises now is whether corruption is indeed an issue and if it is then what method can the defendant No,1 adopt in the interest of the State to deal with its alter effects. The defendant No,1 would have me believe that it can be done only through proceedings in a Court of law in Pakistan and that arbitration would not be the right forum for launching an investigation into, what Mr. Bandial calls, widespread corruption. This may have been true if it was not in the contemplation of the parties at the time of signing of the agreement that corruption may be an issue during the life of the agreement. But it seems that the parties did contemplate that there would be such occasion and hence it was provided for in the following term in clause 17.2 of P.P.A. as well as clause 28.10 of I.A., which are almost identical: "17.2. Affirmation.--- The Company declares and affirms that it and (so far as the Company is aware) the initial shareholders and the company's Directors and employees have not paid nor undertaken to pay any unlawful commission, bribe, pay-offs, kick-backs and that it has not in any other way or manner paid any sums, whether in Rupees or foreign currency and whether in Pakistan or abroad, or in any other manner given or offered to give any gifts and presents in Pakistan or abroad to any person or company to procure this agreement. The company undertakes not to engage in any of the said or similar acts during the terms of this agreement."
34. After having dwelled at length on the change of corruption levied by Mr. Bandial, I have no hesitation in saying that in so far as records of this case are concerned there is nothing here but allegations and insinuation to this effect. The defendant No,1 may be able to bring proofs at the time of trial but at this interlocutory stage just a general perception of corruption seems to pervade, which is typical of corruption culture that we live in, but alas; without content. Fraud. as is well-settled cannot be lightly presumed. It has to be proved, moreso in our country where the word "fraud" is bandied around ceaselessly and even mercilessly often to discredit others or to explain one's failure. In law at least, C you cannot give a dog had name and hang it, the beast must be proven to be bad. In the absence of an incontrovertible proof of corruption there is, thus, a dispute between the parties and considering that it was in the contemplation of parties that question of corruption and bribery could arise and they had provided for it in the agreement, the charge of corruption. Strenuously denied by plaintiffs. would in my view lie within the definition of dispute in the arbitration clause.
35. Mr. Umar Bandial then argued that the offending amendments to P.P.A. being contrary to public policy were rendered void ab initio and since now question of public policy are involved Arbitration is not the right forum. to adjudicate upon it. Now in so far as the question of public policy is concerned it is a difficult word to define. It is also a relative terminology inasmuch as while one particular measure could be regarded as in accordance with public policy during the tenure of one Government it could easily be regarded as contrary to public policy by another Government. Its rules are by no means immutable. Nevertheless in so far as its effect on contracts is concerned.
36. Section 23 of Contract Act. will have to be examined which reads as under:-- "23. The consideration or object of an agreement is lawful unless-- it is forbidden by law; or is of such a nature that. if permitted, it would defeat the provisions of any law; or is fraudulent: or involves or implies injury to the person or property of another; or the Court regards it as immoral or opposed to public policy.
37. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
38. A plain reading of this section would indicate that this section is couched in a positive form and not in a negative form i,e, to say that it would be presumed that the consideration or object of an agreement is lawful unless the Court regards it as immoral or opposed to public policy in which event such agreement would be void. There are two aspects to this section, one that an agreement would be presumed to be lawful and second that the immorality of an agreement being opposed to public policy is something which has to be decided by the Court. which means that it has to be proved before the Court. It would, thus, appear that it is not the perception of something being contrary to public policy which is envisaged here but the actual fact of being against public policy which has to be proved before the Court. In any case the very tenor of section 23 in such that the agreement will be void on the grounds of being contrary to public policy only when the agreement is between two parties of which the State is not a part. For how can State itself enter into an agreement which is contrary to public policy and then seek to avoid it on that ground. This would create an anomalous situation and would be contradiction in terms. It would seem that this section is different to section 19 of the Contract Act. Section 19 reads as under:-- "19. When consent to an agreement is caused by coercion fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
39. A party to a contract. whose consent was caused by fraud or misrepresentation may, if he thinks fit insist that the contract shall be performed and that he shall be put in the position in which he would . have been if the representations made had been true.
40. Explanation.--- If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.
41. Explanation.-- A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable."
42. A plain reading of section 19, on the other hand, would show that when consent to an agreement is obtained by coercion or fraud, the contract is voidable (not void) at the option of the party whose consent was so obtained: Juxtaposing these two sections of the Contract Act namely section 19 and section 23, it would seem that the defendant No,l's allegations fall more within the purview of section 19 rather than section 23. The allegations of-defendant No,1 are that the consent to the amendments to P.P.A. were obtained through undue influence, coercive measures or perhaps through bribes to certain Officials of the defendant No,1 by the plaintiffs. There would, therefore, be no occasion to link this event remotely with the question of public policy. The learned counsel for the defendant No,1 of course emphasized that because of this exercise of undue influence by the plaintiffs the defendant No,1 and indeed the public at large has been greatly harmed and, thus, it is a matter of public policy and, thus, the action of the plaintiffs in procuring such amendments was contrary to public policy. This is somewhat long-winded argument because corruption is every day affair in our country and indeed in most countries of the world. All it entails is influencing certain people in important positions in Government organizations for personal gains and, therefore, I do not see how it can be considered to be an action contrary to public policy in any case the tariffs which, according to the learned counsel for the defendant No,1, were manipulated were not fixed figures, arbitrarily determined. A great deal of calculation goes into it before such, figure takes shape. The figure could be wrong or incorrect or even manipulated but whether such figure was indeed contrary to the public policy is something, which has to be proved as per section 23. Indeed the defendant No,2 (G.O.P.) have already conceded to this in their letter, dated 2-11-1998 wherein they have supported the issuance of the termination letter by the defendant No,1, but have said that the action of defendant No,1 would, be justifiable if the allegations are proven. It may be advantageous to reproduce relevant part of this letter-- "The WAPDA Letter in fact, implicitly reaffirms the rights and obligations of the parties under the Power Purchase Agreement, dated August 23, 1992. While section 17.1 of the P.P.A. provides that the P.R.A. 'can be amended only by agreement between the parties in writing' the WAPDA Letter merely states WAPDA's conclusion that the alleged supplemental deed and amendments do not constitute agreements' to amend the P.P.A. under section 17.1 because those documents were the result of action by HUBCO that were ' illegal fraudulent collusive, without consideration, mala fide and designed to cause wrongful loss to WAPDA and the Government of Pakistan with consequential wrongful gain to HUBCO' . You must recognize of course that such a conclusion, if proven, is consistent with the law of contracts."
43. Be that it may, this is something which has to be decided through a process of adjudication and the perception of a party to the dispute regarding this cannot be taken to be a proof of existence of something being contrary to public policy. As to where such adjudication takes place? The learned counsel for the defendant No,1 would have me believe that this can be done only before a Court of law and hence it should be examined by the Senior Civil Judge. Lahore in the Lahore suit. I can understand the preference of the defendant No,1 to have this matter adjudicated at Lahore but then it cannot be ignored that the parties have already agreed upon resolving their dispute through arbitration by the I.C.C. Tribunal and in the absence of any particular reason why the I.C.C.
44. Tribunal should not adjudicate upon this matter as well, it will be only proper that the Tribunal should look into it. The learned counsel for the defendant No,1 has relied on a number of citations from the textbook in the American Jurisdiction, which by and large state that the question of public policy cannot be the subject-matter of arbitration. While I have no cavil with such observations but these are mere extracts from Corpus Juris Secandum, which is just a compendium of law hence surmise or opinion of the author and, therefore, inferior in value in so far as rules of interpretation are concerned. I do not find any authentic decision of an American Court to support such contention of the learned counsel for the defendant No, 1 nor has he cited any. However, in a case before the English jurisdiction being Westacre Investment Inc. v. Jugoimport SPDR Holding Co. Ltd. and others (1998) 4 All ER (p.570) something similar was considered where a certain company was allegedly involved in giving bribes to the officials of Government of Kuwait to obtain arnament contracts and the Court felt that in this matter, even though against the English public policy the arbitration clause was wide enough to cover this issue and I.C.C.Tribunal was allowed to proceed with arbitration to adjudicate this issue. The relevant passage from the English case is reproduced below:-- "The defendants argue that at common law public policy would be a good defence to an action on the award and that in any event the order for enforcement of the award should be set aside by reason of section 5(3) of the Arbitration Act, 1975.
45. There can be no doubt that as a matter of language the arbitration clause in the consultancy agreement was expressed in terms wide enough to cover the issue whether the agreement was illegal and void by reason of a common or unilateral intention to bribe Kuwait officials.
46. It is necessary to consider both, on the one hand, the desirability of giving effect to the public policy against enforcement of corrupt transactions and on the other hand the public policy of sustaining international arbitration agreements. One consequence of the arbitrators being accorded jurisdiction might be that they gave effect to a contract which on the face of the award, was held to involve the payment of bribes. It would then be a matter of consideration at the enforcement stage whether, although the arbitrators had jurisdiction to determine the issue, the award should be enforced because they had exceeded their jurisdiction in giving effect to an illegal contract or had misconducted themselves. Devid Taylor & Son Ltd. v. Barnett (1953) 1 All ER 843, (1953) 1 WLR 562 or because enforcement would be contrary to public policy. If, however, the arbitrators found facts on the basis of which they rightly concluded that the underlying contract did not involve the payment of bribes, their award would ordinarily be enforced notwithstanding that it might be objected that their findings of fact were in truth mistaken.
47. In the present case, the parties selected arbitration by an impressively competent international body, the I.C.C. The English Court would be entitled to assume that arbitrators appointed were undoubted competence and ability, well able to understand and determine the particular issue of illegality arising in this case. That issue involves no consideration of complex principle of law capable only of being safely determined by an English Court. In so far as it involves determination of questions of fact, that is an everyday feature of involves determination of questions of fact, that is an everyday feature of international arbitration. The opportunity for erroneous and uncorrectable findings of fact arises in all international arbitration. If much weight were to be attached to that consideration it is difficult to see that arbitrators would ever be accorded jurisdiction to determine issues of illegality. Moreover, the fact that the parties themselves not only chose Swiss law as the proper law under when the arbitrators would have jurisdiction over issues of illegality but also had participated in the arbitration after the dispute had arisen and had referred to the arbitrators the issue in question. would be a matter which weighed compellingly in favour of the English Court's concluding that there was no objection to the exercise of that jurisdiction by, the arbitrators.
48. Having regard to these considerations I have no doubt that an English Court would give predominant weight to the public policy of sustaining the parties' agreement to submit the particular issue of illegality and initial invalidity to I.C.C. arbitration rather than to the public policy of sustaining the non-enforcement of contracts illegal at common law. The importance of the former consideration would be held to outweigh the need to protect against the risk that arbitrators might, by way of uncorrectable errors of fact, enforce an illegal contract. Accordingly, in determining the question of public policy as to enforcement. I proceed on the basis that, like the Swiss Courts, the English Courts also would have held that the arbitrators had jurisdiction to determine the question whether the consultancy agreement was illegal and void on the ground, alleged."
49. In the above case also a case was cited from the American jurisdiction which related in violation of anti-trust laws being contrary to public policy but the American Supreme Court held that Arbitration Agreement must be enforced from which it would appear that the American Courts would also probably subscribe to the same view.
50. "A majority of the Supreme Court (at 456) rejected that analysis in these words:-- We conclude that concerns of International community respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the International Commercial System for predictability in the resolution of disputes require that we enforce the parties agreement, even assuring that a contrary result would be forthcoming in domestic context.
51. There is no reason to assume at the outset of the dispute that International arbitration will not provide an adequate mechanism.
52. Having permitted the arbitration to go forward, the national Courts of the United States will have the opportunity at the award enforcement stage to ensure that the legitimate interest in the enforcement of the anti-trust laws has been addressed."
53. From the above citation it is clear that an English Court or for that matter perhaps even an American Court would want question relating to public policy adjudicated upon by Arbitration. In my case, I am of the view that question of public policy is not involved here at all but that of misdemeanor as per section 19 of Contract Act. But considering that the law of this agreement i,e, P.P.A. is the English Law, its terms would have to be construed as per English Law rather than our or the American Law. I am, therefore, of the view that the question of public policy, if any, particularly in view of the fact that the parties had in their contemplation at the time of entering into agreement that question of bribe and undue influence would arise and it was so reflected in the agreement, too will fall within the definition of "dispute" in the Arbitration Agreement and, thus, the proper forum for adjudicating upon it would be the Arbitral Tribunal.
54. There is no doubt that the parties could always urge that they ought not to be compelled to go arbitration on the grounds of forum non-conveniens but then as has been held, in a number of authorities and even I have held in the case reported in PLD 1999 Kar. 25, that this is a question of fact. The relevant passage from my judgment is reproduced below:-- "Now in the world of commerce today arbitration as a method of resolving of disputes finds its way in most contracts, the aim being to avoid long and arduous litigation in Courts. Most parties to the contracts at the time of signing it agree to incorporation of an arbitration clause quite readily because as the time the primary concern of the parties is to clinch the contract. It is only later when the disputes arise that they being to circumvent or avoid the arbitration agreement depending upon whether it suits them or not. What is interesting is that while Courts are generally strict in enforcing the various terms of the agreement depending upon the principle 'consent facit legem', they are prone to give latitude to parties where arbitration agreement is concerned when question of 'forum conveniens' arises but this consideration is discretionary and not mandatory and depends upon the facts of each case."
55. The defendant No,1 argues that the proofs required for corruption are so exclusive and convoluted and that they are entirely present in Pakistan and it will be most inconvenient to produce these abroad. This is belied by the array of defendants in the Lahore suit. Majority of the gentlemen (sic) who are alleged to have facilitated corruption are, as stated in the Lahore suit plaint, are presently resident in London or abroad and hence, I find that it will be easier for an English Court to summon these witnesses to give evidence before the Tribunal than it would be for a Pakistani Court.
56. In so far as the maintainability of this suit is concerned the plaintiffs have laid great stress on the fact that through this suit they do not seek determination of the validity or otherwise of the amendments and that their purpose in filing this suit is entirely in aid of arbitration. The learned counsel for the defendant No,1 have on the other hand states that if this was the intention of the plaintiffs then they should have filed application under sections 22 and 40 of the Arbitration Act, 1940 and the fact that they did not, mean that this suit will not be maintainable. Now it is well- settled that filing of a suit or proceedings under a wrong provision of law does not affect the maintainability of a suit. What has to be seen is whether this suit falls within the scheme of the law.
57. It is undeniable that prior to commencement of the arbitration the parties have to take certain measures to maintain status quo so that there is an opportunity for the arbitration to proceed. It is clear that the plaintiffs were under great pressure and were apprehensive that they may be prevented from going to arbitration. Thus, it would seem that they filed this suit by way of abundant caution. The aim of the plaintiffs being to preserve the status quo prior to arbitration, I find their act in filing this suit was within the scheme of law and it is immaterial as to what provision of law it was filed under. I am, therefore, of the view that this-suit is maintainable. However, the applications that have been made for temporary injunction with regard to preserving the status quo would seem to have now lost their purpose in view of the fact that the Arbitration Tribunal has already been formed and that there is a Supreme Court consent order, which itself says that it shall hold the field henceforth, I, therefore, find that passing of any order on these applications at this stage would bring this Court as stated by the learned Single Judge earlier, into conflict with the orders of the Supreme Court and hence these applications at least ought to be dismissed. The other point raised by the learned counsel for the defendant No,1 in this connection was that since the plaintiffs had already chosen a forum i,e, this Court they could not now seek another forum, that is the Arbitration Tribunal. I do not find that there is any indication in this suit that the plaintiffs had given up their right for arbitration. I find that the tenor of this suit is clear inasmuch as it has avowedly been filed in aid of arbitration and hence, I do not find any merit in this objection of the defendant No, 1.
58. The other application of the plaintiffs relates to restraining defendant No,1 from initiating action in any other forum, which would hamper the plaintiffs from proceedings to arbitration. This application of course formed the very basis of this suit inasmuch it is because of the fear of the plaintiffs that the defendant No,1 may resort to certain other measure that the plaintiffs initially filed this conservatory suit. However, I feel that the purpose of this suit is now served because the Arbitration Tribunal has now been formed and indeed the first hearing before Tribunal is fixed on 20-3-1999. Besides, the apprehension that the plaintiffs had about defendant No,1 approaching any other forum have been justified inasmuch as the defendant No,1 have already filed a suit before Senior Civil Judge, Lahore. Consequently, I find that this application has become infructuous.
59. Now as far as the question of having the dispute between the parties resolved through arbitration is concerned if there is an agreement to this effect between the parties, after the recent judgment of the Supreme Court being Hitachi v. Rupali Polyester 1998 SCMR 1618 (hereinafter referred to as Rupali case) there is no further discussion necessary. This is an exhaustive and authoritative judgment which clearly lays down the rule that once parties have agreed to have their dispute resolved through arbitration they are bound to proceed to arbitration even though such arbitration may be held abroad. The relevant passage from the judgment is quoted below:-- "We are mindful of the fact that the parties should be made to honour their contractual commitment, particularly, involving multi-national parties as was observed by one of us (Ajmal Mian, C.J.) in the case of Messrs Eckhardt & Co. v. Muhammad Hanif (PLD 1993 SC 42, relevant portion at page 52) relied upon by Mr. Bandial, which reads as follows:-- I may observe that while dealing with an application under section 34 of the Arbitration Act in relation to a foreign arbitration clause like the one in issue, the Court's approach should be dynamic and it should bear in mind that unless there are some compelling reasons, such an arbitration clause should be honoured as generally the other party to such an arbitration clause is a foreign party. With the development and growth of International Trade and Commerce and due to modernization of Communication/Transport Systems in the world, the contracts containing such an arbitration clause are very common nowadays. The rule that the Court should not lightly release the parties from their bargain that follows from the sanctity which the Court attaches to contracts must be applied with more vigor to a contract containing a foreign arbitration clause. We should not overlook the fact that any breach of a term of such a contract to which a foreign company or person is a party, will tarnish the image of Pakistan in the comity of nations. A ground which could be in contemplation of party at the time of entering into the contract as a prudent man of business, cannot furnish basis for refusal to stay the suit under section 34 of the Act. So the ground like, that it would be difficult to carry the voluminous evidence or numerous witnesses to a foreign country for Arbitration proceedings or that it would be too expensive or that the subject-matter of the contract is in Pakistan or that the breach of the contract has taken place in Pakistan, in my view, cannot be a sound ground for refusal to stay a suit filed in Pakistan in breach of a foreign arbitration clause contained in contract of the nature referred to hereinabove. In order to deprive a foreign party to have arbitration in a foreign country in the manner provided for in the contract, the Court should come to the conclusion that the enforcement of such an arbitration clause would be unconscionable or would amount to forcing the plaintiff to honour a different contract, which was not in contemplation of the parties and which could not have been in their contemplation as a prudent man of business'."
60. I find that the defendant No,1 have made out no ground as to why they should not be asked to have their disputes resolved through arbitration as agreed upon in P.P.A. which they have admitted.
61. However, it is important to consider the fact that in this particular case the two parties who have agreed to a foreign arbitration are Pakistani parties. Not only that in spite of the fact that they are Pakistani parties they had also agreed to hold arbitration in London when the I.C.C. Rules 'do not prevent the parties from holding arbitration even in Pakistan. The choice of the place of the arbitration of course is that of the parties. But different implications arise when both the parties are Pakistani rather than one party being Pakistani and the other foreign. There is no doubt that as per detailed discussion in the Rupali case cited above the Arbitration (Protocol and Convention) Act, 1937 (hereinafter referred to as the Protocol Act) would apply when one party is foreign and the other local and such award will be regarded as a foreign award as per terms of the Protocol Act.
62. But what happens if both parties as Pakistani, would an Award given by a foreign Tribunal after arbitration held in a foreign country as mutually agreed between parties be, still a foreign award and hence enforceable in Pakistan under the Protocol Act. Now it is settled law that the Pakistani parties continue to be subject to the Pakistan law even when they are beyond the shores of Pakistan. Consequently, when plaintiffs and defendant No,1 in this case have agreed to arbitration abroad they would continue to remain subject to Pakistani Law. However, the fact that they 'have chosen that their agreement would be subject to foreign law, the validity of which is in itself doubtful but need not be gone into at this stage, it will be only a temporary arrangement and the moment the agreement is performed the umbrella of Pakistani Law would reappear automatically.
63. In so far as the arbitration agreement is concerned it is now well-established that an arbitration agreement is severable from the agreement of which it forms a part. Since the arbitration agreement provides for arbitration. In London under the English Law this will be binding upon the parties as long as the arbitration lasts but the moment the arbitration ends upon the award being given by the arbitrators the temporary dislocation of the umbrella of Pakistani Law would disappear and the award itself would become an award under the Pakistani Law. In the Rupali case the Supreme Court has dwelled at length on the "Seat Theory" and has said that an arbitration must be linked to the legal regime of the particular country where arbitration is held, consequently, to that extent the arbitration award in this case would be linked to the legal regime of England, but as elaborately explained in the Rupali case such linkage would only mean that the arbitration agreement will have to be construed as per English Law and that the procedural law/curial law will be English but in my view once the arbitration ends the Pakistani Law would resurface to claim the award. I am fortified in this view even by Rupali case according to which:-- "It cannot be urged that simpliciter the fact that the agreement is subject to arbitration under the I.C.C. Rules will divest the jurisdiction of the Pakistani Courts if otherwise it is vested in them."
64. Even otherwise I am of the view that the Protocol Act would not apply to arbitration between two Pakistani parties held abroad. Section 9 of the Protocol Act reads as under:-- "9. Saving.--- Nothing in this Act shall--
(a) prejudice any rights which any person would have had of enforcing in Pakistan any award or of availing himself in Pakistan of any award if this Act had not been passed, or
(b) Apply to any award made on an arbitration agreement governed by the law of Pakistan."
65. It is clear that any arbitration award between two Pakistani parties will of necessity be governed by Arbitration Act, 1940. The fact that the parties have chosen the "seat" of the arbitration to be a place other than Pakistan would be relevant as stated above only so far as the procedural law/curial law of the Arbitration is concerned but the Arbitration Agreement between the parties will remain under the umbrella of Pakistan. Here a distinction has to be drawn between being "governed by Pakistan law" and "parties mutually agreeing to apply a particular law". The agreement between two Pakistani parties will always be governed by Pakistani law though the parties may temporarily agree to displace it for their own convenience. I, therefore, hold that any award given under an Arbitration Agreement between two Pakistani parties notwithstanding their agreement to apply a .foreign law will be deemed to be an award under Arbitration Act, 1940 of Pakistan and will be enforceable as such.
66. This now brings me to the question of filing of the Lahore suit by defendant No,1. The learned counsel for the defendant No,1 maintains that-this application i,e, C.M.A. No,399 of 1999, is not maintainable under the provisions of section 56(b) of the Specific Relief Act. According to him, if the plaintiffs are aggrieved by the filing of this suit or the order of the learned Senior Civil Judge, Lahore, their remedy lies in filing an application under section 10 of C.P.C. which he says they have already done at Lahore. Under the circumstances, he states that the plaintiffs have no cause to file this application in this Court. On the other hand, the learned counsel for the plaintiffs Mr. Prizada states that this suit filed in Lahore is basically an oppressive and vexatious suit and under such conditions the parties before another Court can be restrained from proceedings with the other suit.
67. He traced out the history of the exercise of such jurisdiction by Courts in England to issue non-suit and anti-suit injunction against parties. Such jurisdiction was exercised by the Courts of Chancery in England, being the Courts of equity to restrain parties from proceeding with vexatious actions in the Courts of common law. He says that the same system was transmitted to- the Courts in the British India where the High Courts did issue injunctions to non-suit parties in another jurisdiction.
68. He submitted that it is not the other Court who is injuncted but it is in fact parties before the Court passing the order who are injuncted. According to him such measure was often resorted to whenever the offending proceedings were oppressive or vexatious. One of the learned counsel for the plaintiff i,e, Mr. Makhdoom Ali Khan drew a parallel between section 56(b) in the Specific Relief Act, 1877 in Pakistan and section 41 in the Specific Relief Act, 1963 in India. According to him the difference between the two sections is rather subtle. In order to appreciate the difference, it will be proper to reproduce the relevant sections of the Specific Relief Acts of the two countries.
69. Specific Relief Act, 1877 (Pakistan)
70. "56. An injunction cannot be granted--
(a) to say judicial proceedings pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to say proceedings in a Court not subordinate to that from which the injunction is sought; (c)
71. (d (e)
72. (f)
73. (g)
74. (h)
75. (i)
76. (j)
(k) Specific Relief Act, 1963 (India)
77. "41. Injunction when refused.--- An injunction can be granted--
(a) to restrain any person from prosecuting a judicial proceedings pending at the institution of the suit in which the injunction sought, unless such restraint is necessary to prevent multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceedings in a Court not subordinate to that from which the injunction is sought; (c)
78. (d)
79. (e)
80. (f)
81. (g)
82. (h)
83. (i)
84. An examination of the above sections of the two Specific Relief Acts, would reveal that the Specific Relief Act in India has been especially amended to alter section 56(b) to the effect that even the parties could not be injected, whereas the Specific Relief Act of Pakistan is similar as the one that prevailed in British India and from this it is clear that while judicial proceedings cannot be injected, there is no bar to the parties being injected. There is hardly any case-law on this point, however, the learned counsel for the plaintiffs cited one judgment from Lahore jurisdiction being Ahmed Din v. Faiz Ali PLD 1954 Lah. 414 in which it was held that temporary injunction could be issued even in restraint of judicial proceedings in another jurisdiction. The relevant portion of the judgment is as under:-- "Yet after full consideration, I have reached the conclusion that not only on authority and by practice of Courts but even on principle and without the loss of consistency the issue of a temporary injunction in restraint of judicial proceedings is justified. The prosecution of judicial proceedings is different from the exercise of ordinary legal Rights by a party. It is recourse to the judicial machinery of a country with the object of securing relief for the enforcement of civil rights and all that a party is entitled to is a proper and full adjudication of his rights and an appropriate relief. By the injunction the party is not being absolutely restrained from having recourse to a Court.
85. Only the result of another proceeding is being allowed to affect the proceeding that lis stayed."
86. The learned counsel for the defendant No,1 Mr. Umar Bandial maintains that the view taken by the learned Single Judge of Lahore in the above case was not correct and for this he relied on the case of Jannana De Malucho Textile Mills Ltd. v. Waqar Ahmed PLD 1972 SC 34. But in this case the Supreme Court did hint that injunction could perhaps be issued to a party from prosecuting a suit in another Court not subordinate to the Court issuing the injunction, but the Court declined to give a considered opinion on this point. Relevant portion of the judgment is reproduced below:-- "It is unnecessary to give any considered opinion on the view expressed in the decided cases examined in the High Court that section 56(b) of the Specific Relief Act is not a bar to restrain a party from prosecuting a suit in another Court not subordinate to the Court issuing the injunction."
87. The learned counsel for the defendant No,1 also argued that the Court in exercise of its inherent jurisdiction could not proceed to injunct parties from proceeding with an action in another Court.
88. According to him, the scope of inherent jurisdiction was limited and for that he relied on a number of authorities. Nevertheless, I find that in this case clearly the defendant No,1 have deliberately filed this suit in Lahore and have obtained ad interim orders thereon thereby inhibiting the parties' ability to proceed with arbitration when this Court was fully seized of the problem or the dispute. Not only that, the defendant No,1 had also submitted to the jurisdiction of this Court in this matter and are on record as having stated that "this Court is now seized of the dispute between parties" in their para.5 of their counter-affidavit to C.M.A. No,9751 of 1998. Consequently, if the defendant No,1, did want intervention of the Court to prevent the plaintiffs from proceeding with the arbitration it was for them to either initiate fresh proceedings in this Court or to initiate interlocutory proceedings in this very suit to attain their objective. But the fact that the defendant No,1 chose another course and filed a fresh suit and obtained injunction in another jurisdiction would clearly indicate to me that this was done purely with a view to circumventing this Court and thereby thwarting and hampering the exercise of jurisdiction by this Court. The subsequent conduct of the defendant No,1 also confirms my finding as above because after having agreed to a consent order dated 20-2-1999 by the Division Bench of this Court in H.C.A. 26 of 1999 (an appeal from my order, dated 22-1-1999) in which they had agreed not to proceed to arbitration till 29-3-1999 and had requested the Division Bench to have all the applications decided by me by a certain date i,e, 18-3-1999, they still initiated further proceedings in Lahore High Court. In these proceedings before Lahore High Court the defendant No,1 filed a revision petition challenging the orders of the learned Senior Civil Judge, Lahore and obtained orders, dated 12-3-1999 from the Lahore High Court to the effect that the parties will not proceed with the arbitration till 24-3-1999. This is indeed surprising because they had as stated above consented to the order of the Division Bench of this Court which directed that the parties will not proceed with the arbitration till 29-3-1999. To the extent that order of Sindh Appellate Court was a consent order and included additional directions for the .related application to be decided by a Single Bench, while Lahore High Court order did not include any such additional directions, clearly the defendant No,1 acted with improperly in obtaining such an order from Lahore High Court. Indeed it is significant to note that while counsel for defendant No,1 was arguing the applications before me, the defendant No,1 were at the same time before the Lahore Court to obtain an order to thwart the jurisdiction of this Court, unknown to Lahore High Court, of course, it is obvious to me that the defendant No,1 's attitude in this matter is truly cavalier and their aim' is obviously to hoodwink one Court and obtain orders from another Court and, thus, pit the two Courts of this country against each other. Here I must note that when confronted with application under section 10, C.P.C. by the plaintiffs in the Lahore suit, the learned Senior Civil Judge, Lahore displayed considerable acumen and sobriety in choosing not to pass any order on application on the ground that such action would bring the two Courts of this country into conflict which is not good for the image of judiciary. To this extent I believe the learned Senior Civil Judge, Lahore deserves to be commended. In my view what the defendant No,1 have attempted to do is clearly aimed at bringing the two Courts of this country into conflict and thereby derive advantage therefrom. What better proof of this than the unseemly glee with which the author of WAPDA Letter, dated 26-1-1999 writes to the Arbitral Tribunal relevant portion of it is reproduced below:-- "The aforesaid order, dated 16-1-1999 made by the learned Senior Civil Judge has been reaffirmed by the learned Judge on 23-1-1999, in presence of the claimant's counsel. Therefore, the order of the learned Senior Civil Judge, Lahore, dated 16-1-1999 holds the field, notwithstanding the order, dated 22-1-1999 made by the Sindh High Court which has been relied upon by the claimants' solicitors their letter addressed to the Chairman, Arbitral Tribunal in fact, an application for initiating contempt proceedings against the claimants has also been filed before the Senior Civil Judge, who has been pleased to order on 23-11999 that subject to any orders passed by any Court of competent jurisdiction (higher or equal) respondent No,1 (HUBCO) shall abide by the order, dated 16-1-1999.
89. For the aforesaid reasons we are unable to accept the appointment of the Chairman of the Arbitral Tribunal for neither we nor the claimants can ignore an order made by a Court in Pakistan."
90. A perusal of this letter would confirm that the aim of defendant No,1 has always been to create confusion between the orders of the two Courts and thereby derive advantage and find an excuse for not going to arbitration. I find such attitude from defendant No,1 which is a Government organization makes a mockery of the institution of judiciary and, thus, this Court, and for that matter any Court in Pakistan, will always, have the inherent jurisdiction to prevent a party before it from bringing two Courts into open conflict deliberately thereby aiming to denigrate the judicial system of this country.
91. In view of the above discussion, I find that the parties before me ought to be restrained from proceeding any further or prosecuting the Lahore suit or any revision/appeal filed therein henceforth consequently, the Lahore Civil Court order, dated 16-2-1999 ought to be ignored by the parties. I, therefore, would order accordingly and would hold that parties are free to proceed to arbitration as per the terms of P.P.A. but the award given in such an arbitration would be deemed to be an award under Arbitration Act, 1940 and would be enforceable as such. To cater for the objection of the learned counsel for the defendant No,1 that it will be difficult to adduce evidence regarding corruption abroad, I would observe that the parties are free to make application before the I.C.C. Tribunal to hold hearing in this connection at Karachi which is permitted by the I.C.C.
92. Rules, the relevant rule is quoted below:-- "Article 14. Place of the Arbitration--- (1) The place of the arbitration shall be fixed by the Court unless agreed upon by the parties.
(2) The Arbitral Tribunal may, after conclusion with the parties, conduct hearings and meetings at any location it considers appropriate unless otherwise agreed by the parties.
(3) The Arbitral Tribunal may deliberate at any location it considers appropriate."
93. The effect of the parties ignoring the Lahore Civil Court order, dated 16-2-1999 would be that the injunction of the Lahore Senior Civil Judge with regard to the stand by guarantees furnished by the defendant No,2 would also fall but in order to protect the interest of the defendant No,1, I direct that such stand by guarantees would not be encased by the plaintiffs till either the award is filed in a Court of competent jurisdiction or this suit is disposed of whichever is later.
94. Now to the contempt application filed by the plaintiffs. Through this contempt application the plaintiffs contend that one Riaz Hassan Baig, General Manager of defendant No,1 wrote a letter to the I.C.C. Tribunal wherein he stated that since the Lahore Civil Court had reaffirmed its order, dated 16-2-1999, consequently, the order of this Court permitting the parties to proceed to arbitration no longer holds the field. An examination of this letter would show that there is no doubt that the defendant No,1 have acted in a most improper manner and they have tried to use the conflict between two Courts to their advantage. It appears to me that the author of this letter had acted contumaciously and has displayed lack of judgment and sense of propriety. However, the fact remains that lack of judgment or even lack of sense of propriety cannot be regarded as contempt of Court. The author of the letter has skirted on the fringes, the contempt but, in my view, has not plunged in the M abyss and, thus, I hold that no contempt of this Court has been committed by the alleged contemnor. However, I do wish to record a warning to the alleged contemnor to be careful in future.
95. To sum up my decisions on the applications, I would reproduce below the operative part of my short order, dated 22-3-1999: "(1) & (3). Considering that Supreme Court order, dated 3-7-1998 as per its own direction will hold the field till disposal of Writ Petition (8755 of 1998) by Lahore High Court, according to which a ceiling has been fixed for payment of Capacity Purchase Price (C.P.P.) and considering that the application basically relates to amendments to Power Purchase Agreement (P.P.A.) which determine C.P.P., I believe any order on this application will come into conflict with aforesaid Supreme Court order. Consequently, this C.M.A. is disposed of in terms of Supreme Court order, dated 3-7-1998 with the remarks that since the payment of C.P.P. has been admittedly reduced from the ceiling fixed by the Supreme Court, the plaintiffs may if they so wish, approach the Supreme Court to have the arrears and balance amounts in future deposited in Court.
(2) Considering that I.C.C. Tribunal is now complete and it has already fixed a date of hearing on 29-3-1999 and what the plaintiffs wished to prevent through the application has already happened inasmuch as defendant No,1 have already filed a suit in Lahore Civil Court, this application has become infructuous and is accordingly dismissed.
(4) This C.M.A. as per statement of learned counsel for plaintiffs has become infructuous and is dismissed as such.
(5) I am of the view that the suit before Senior Civil Judge at Lahore, amongst other things, has been filed by defendant No,1 to deliberately hamper the exercise of jurisdiction by this Court in a lis of which this Court is already seized and to whose jurisdiction the defendant No,1 had already submitted. Consequently, in order to prevent further abuse of process of this Court and making a mockery of the institution of judiciary itself I direct the parties who are before me in this suit not to prosecute or take any further steps in the suit before the learned Senior Civil Judge at Lahore described in this application and also any connected revision/appeals etc. till disposal of this suit.
96. The parties are, therefore, directed to ignore the learned Senior Civil Judge order, dated 16-1-1999 in the Lahore suit. Consequently, following the recent judgment of Honourable Supreme Court being Hitachi Ltd. v. Rupali Polyester 1998 SCMR 1618 the parties are free and indeed bound to proceed with arbitration to resolve their dispute as per terms of the P. P . A .
97. However, any award that may be given upon conclusion of the arbitration proceedings in London would be deemed to be an award under the Arbitration Act, 1940 of Pakistan and will be enforceable as such. The parties may apply to the I.C.C. Tribunal if they so wish to record evidence with regard to allegation of fraud and corruption made by defendant No,1.
98. In so far as the standby Letters of Credit are concerned, in order to protect the interests of defendant's the plaintiffs are restrained from encasing such Letters of Credit under demand, dated 12-1-1999 to ANZ Grindlays Bank till the award given by I.C.C. Tribunal is filed in a Court of competent jurisdiction in Pakistan or the disposal of this suit whichever is later. The parties are permitted to file fresh application or any other proceedings in this Court with regard to stand by Letters of Credit and such proceeding/application will be dealt with on merit.
(6) Even though the contents of defendant No,1 letter display utter lack of judgment and sense of propriety of the author of the document, which to say the least, is quite unbecoming of an officer of a premier institution of our country, I do find that these do not quite constitute contempt of Court and accordingly this C.M.A. is dismissed subject to remarks as above."
99. Finally a word about the lurking thought in my mind planted more by positive arguments of learned counsel for the plaintiffs rather than negative arguments of learned counsel of defendant No,1, that by this order on the interlocutory applications I may have virtually disposed of the entire suit. I do believe this is not so as defendant No,1 could bring evidence at the time of trial to give content to their allegations of corruption. However, in this connection I can do no better than to cite an extraordinary passage from Rupali case:-- "While granting a relief the Court can dispense with the technicalities and may mould the relief according to the requirement, if the dictates of justice so demand. In this behalf reference may be made to the case of Zulfiquar Ali Babu v. Government of Punjab (PLD 1997 SC 11)."
100. And a piece from the case of C.A. Total Oil Ltd. v. Thompson Garages Ltd. (1971) 3 All ER 1226 from the speech of Lord Denning:-- "Finally, counsel for the dealer urged that this ought not to be dealt with on an interlocutory application, because it would in effect, be deciding the case finally here and now. So, be it. That often does happen on interlocutory applications. We have before us all the information which is necessary to decide it. It seems to me that, even though it may be deciding the case now, we should so decide it."
101. The cumulative effect of the above two quotations would make one ponder that if demands of justice require one to do this, must one be fettered by formalities and technicalities of law. I think not! and I would too, not with the grandiloquence and flourish of Lord Denning but with utmost humility say; so be it!
102. Cases cited by the plaintiffs Pakistan Automobile v. General Motors PLD 1982 Kar. 796; Jameel Ahmed v. Provincial Government PLD 1982 Lah. 49; Mahmud Hussain v. Islamic Republic 1982 CLC 1385; Saima Jawaid v. S.M. Arshad PLD 1983 Kar. 303; Pakistan Paper Corporation v. National Trading 1983 CLC 1695; Zubair Ahmed v.
103. Pakistan Stat Oil PLD 1987 Kar. 112; Balagamwala Oil Mills v. Shakrachi Trading PLD 1990 Kar. 1; Government of Pakistan v. M.1. Cheema 1992 SCMR 1852; Waqar Hussain v. National Refinery 1993 CLC 726; Universal Trading Corporation v. Beecham Group 1994 CLC 726; Agha Saifuddin Khan v.
104. Pak. Suzuki Motors 1997 CLC 302; Hafeezullah Khan v. Barkat Ali PLD 1998 Kar. 274; Evan Marshal v.
105. Bertola SA (1973) 1 All ER 992; Sky Petroleum v. VIP Petroleum (1974) 1 All ER 954; Cutsforth and others v. Mansfield Inns Ltd. (1986) All ER 577; Films Rover v. Cannon Film Sales (1986) 3 All ER 772; Thomas M. Heysek v. Boyden Worik (1989) 1 Malyan Law Journal 219; Khushi Muhammad v. Ata Muhammad 1983 CLC 2356; S.A. Abbasi v. Chairman, District Council PLD 1985 Kar. 400; Noor Muhammad v. Civil Aviation Authority 1987 CLC 393; K.M. Morshed v. Executive Engineer 28 DLR 449; Abdul Jalil v. Abu Bakar Siddiqui 35 DLR 42; Decro Wall v. Practitioner in marketing (1971) 2 All ER 216; Total Oil v.
106. Thompson Garages (1971) 3 All ER 1226; Specific Relief Act, 1877, 20; Indian Specific Relief Act, 1963, Ahmad Din v. Faiz Ali PLD 1954 Lah. 414; Waqar Ahmed Chaudhry v. Janana De Malucha NLR 1982 UC 136; Muhammad Afzal v. Sardar Begum PLD 1949 Lah. 16; Janana De Malucha v. Waqar Ahmad PLD 1972 SC 34; Milton & Co. v. Ojha Automobile AIR 1931 Cal. 279; Cotton Corporation v. United Industrial Bank AIR 1983 SC 1272; Cohen v. Rathfield (1990) 1 KB 410; Trustee of the Port of Karachi v. Abdul Ghani PLD 1964 Kar. 260; Karachi Shipyard v. General Iron and Steel PLD 1971 Kar. 501; Haji Sommar v. Muhammad Bashir 1981 SCMR 129; Hyderabad Municipal Corporation v. Columbia Enterprises 1990 CLC 42; Lahore Stock Exchange v. Fredrick J. Whyte PLD 1990 SC 48; Aswa n Tentage v. M.A.
107. Razak 1993 MLD 243; Port Qasim Authority v. Al-Ghurair Group PLD 1997 Kar. 636; Chitty on Contracts, Vol. 1, 27th Edn. 1994, pages 718 to 723; Mustill and Boyd, the Law and Practice of Commercial Arbitration, 2nd Edn. 1989, p.116; Hayman v. Darwin (1942) 1 All ER 337; Harbour Assurance v. Kansa General (1992) 1 Lloyds 81; Harbour Assurance v. Kansa General (1993) 3 All ER 897; Westacre Investments v. Jugoimport (1998) 4 All ER 570; Prima Pain Corporation v. Flood and Conklin 338 US 395 = 18 L ed 2d 1270; Russel on Arbitration, 21st Edn., 1997, pages 57 to 58; Bhagwant Genuji v. Gangabisan Ramgopal AIR 1940 Born. 369; Manzoor Hussain v. Wali Muhammad PLD 1965 SC 425; Official Assignee v. Lloyds Bank PLD 1969 SC 301; Sultan Textile v. Muhammad Yousuf PLD 1972. SC 226; Pakistan Burmah Shell v. Tahir Ali 1983 CLC 2745; Dawood Corporation v. Jasian Jasimina 1988 MLD 987; Anwar Ali and 9 others v. Chief Engineer Irrigation, Sukkur, Zone Sukkur and 2 others 1986 CLC 745; Muhammad Farooq M. Memon and another v. Government of Sindh 1986 CLC 1408; Pakistan Banking Council and another v. Ali Maohtram Naqvi and others 1985 SCMR 714; Corpus Juris Secundum, Vol. 6, Director, Housing A.C.'s Branch, Rawalpindi v. Messrs Malchdum Consultant Engineers and Architects 1997 SCMR 998; Hashmi Cane Company v. Hysong Corporation of Karachi PLD 1999 Kar. 25; Law Reports of the Commonwealth, 1994, Vol. 2; Azra Ali v.
108. Arif Ali PLD 1993 Kar. 689; Order 73; Muhammad Mushtaq v. Bashir Ahmed PLD 1991 Kar. 400 and Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555.
109. Cases cited by the defendant No,1 Janana De Malucho v. Waqar Ahmed PLD 1972 SC 34; Ch. Muhammad Afzal v, Mst. Sardar Begum and others PLD 1949 Lah. 16; Kassam. Ali Alibhoy v. Shaikh Abdul Sattar PLD 1956 (W.P.) Kar. 13; Muhammad Younus v. Nargis Sultana PLD 1970 Lah. 41; PICIC v. Modern Embrodiary Textile Ltd. PLD 1976 Kar. 249; Messrs Muhammad Ashraf Chiraghdin v. Pakistan Through Secretary of Defence, Islamabad 1981 CLC 343; Pakistan through General Manager Fafilhr v. Agro Marketing 1981 CLC 43; Ghulam Mustafa v. Family Judge, Qazi Kharan and others PLD 1984 Quetta 43; Arifa Begum v.
110. Khulque Muhammad Naqvi PLD 1969 Kar. 193; Salim Industries Ltd. v. Burhani Trading Co. 1982 CLC 973; Chandi Charan Naskar v. Bhangiadar Mondal and others AIR 1976 Cal. 358; Uzin Export Import Foreign Trade Company v. McDonld Layton & Company Limited 1996 SCMR 690; Uzin Export Import Enterprises v. Messrs Iftikhar & Co. 1993 SCMR 866; Messrs Eckhardt & Co. v. Muhammad Hand PLD 1993 SC 42; Hitachi Ltd. v. Rupali Polyester 1998 SCMR 1618; B.R. Harman v. G.C.P. 1980 CLC 1226; Board of Intermediate and Secondary Education, Ulta through its Secretary v. Fine Star & Co.
111. Engineers Contractors 1993 SCMR 530; Uzin Export Import Enterprise v. M. Iftikhar & Co. Ltd. PLD 1986 Kar. 1; Hidayatullah v. Shamimuddin 1993 MLD 993; Gulf Iran Company v. Pakistan Refinery Limited PLD 1976 Kar. 1060; Television Systems and Research (Rentals) Limited v. Pakistan Services Limited 1991 CLC Note 205 at p.161; Sir E. Haroon Jaffer & Sons Ltd. v. Haji E. Dossa & Sons PLD 1956 Sindh 4; Haji Soomar Haji Hajjan v. Muhammad Amin Muhammad Bashir 1981 SCMR 129; Rajah Picture Palace, Rajahmudry and others v. Marina Jagga. Rao AIR 1991 A.P. 410; Nilya Kumar Chatter Jee v.
112. Sukancedo Chandra AIR 1977 Cal. 130; Bawa Ganga Ram v. Keshavadas Dawandas and others AIR 1937 Sindh 174; Goopirai v. Beignal Rai and others AIR 1930 All. 840; Avari Hotels v. Hilton International Company PLD 1985 Kar. 445; N.C. Padmana Bhan v. Srivivasu AIR 1967 Mad. 201; Kashmiri Lal v. Union of India AIR 1966 J&K 134; Mutha Baratu v. Dr. No, Subbarao AIR 1984 A.P. 200; Indian Oil Corporation v. Premier Road Carriers AIR 1983 Cal. 445; Inamur Rehman v. Jalaldin 1995 CLC 428; The Burmah Oil Company v. The Trustees for the Port of Chittagong PLD 1961 SC 452; Ali Haider Khan v. Sher Afzal Khan PLD 1983 SC (AJK) 5; Sh. Gulzar & Co. v. Special Judge, Banking 1991 SCMR 590; Mst. Zainab v.
113. Fazal Dad PLD 1966 (W.P.) Lah. 1050; Nazeer Ahmed v. Additional Settlement Commissioner, Lahore PLD 1982 Lah. 768; Indian Oil Corporation. Ltd. v. Indian Carbon Limited AIR 1984 Bom. 138; The Union of India v. Kishori Lal Guppta & Brothers AIR 1959 SC 1362; Messrs Umrao Singh & Co. v. The State of Madhya Pradesh AIR 1976 MP 126; Lahore Stock Exchange v. Fredrick J. Whyte Group Pakistan Ltd. AIR 1981 SC 2085; Hamida Begum v. Murad Begum PLD 1975 SC 624; Shamshad Ali Shah v. Syed Hassan Shah PLD 1964 SC 143; Muhammad Nazir v. Mt. Zulelcha AIR 1928 All. 267; Gobindram v. Kajuram AIR 1939 Lah. 504; Sindh Cotton Exporters v. A.B. Sadiq Brothers PLD 1955 Sindh 268; Muhammad Shafi v.
114. Muhammad Sabir PLD 1960 (W.P.) Lah. 591; Messrs Badri Narayan Agarwalla v. Pak. Jute Balers Limited PLD 1966 Dacca 54; Malik Muhammad Anwar Khan v. Min Wali Muhammad PLD 1956 Lah.
115. 202; Province of Punjab v. District Judge, Lahore PLD 1984 Lah. 515; Ramji Daywala v. Invest Import AIR 1981 SC 2085; Hyderabad Stock Exchange v. Rangnath Rathi & Co. AIR 1958 AP 43; Daya Bhai & Co. v. Bapa Lal & Co. AIR 1958 Bom. 279; (Vol. IV); Shamshad Ali v. Syed Hassan Shah PLD 1964 SC 143; Syed Azizur Rehman v. Mst. Habib Bano PLD 1972 SC 52; Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC 542; A.R. Khan v. P.N. Gogga PLD 1987 SC 107; Alavi Sons v. The Government of East Pakistan and others PLD 1968 Kar. 222; Muhammad Farooq Khan v. Suleman A.G. Punjvvani PLD 1977 Kar. 88; Abdul Rehman Mubashir v. Syed Amir Shah Bukhari PLD 1978 Lah.
116. 113; Euro Distributors Establishment Lugano Switzerland v. B.C.C.I. London and others 1982 CLC 2369; Karachi Shipyard and Engineering Works Ltd. v. Muhammad Shakir Sheikh 1993 CLC 330; (Vol.V); Messrs Arif Brothers v. Government of Pakistan PLD 1997 Kar. 627; Obaidullah v. Inspector-General, Frontier Corps, Quetta 1997 SCMR 1833; Messrs Farooq & Co. v. Federation of Pakistan 1996 CLC 2030; Obaidullah v. Haibullah PLD 1997 SC 835; Roazi Khan and another v. Nasir and others 1997 SCMR 1849; Messrs Conforce v. Syed Ali Shah PLD 1977 SC 599; Amina Begum v. Ghulam Dastagir PLD 1978 SC 220; Samar Gul v. Central Government PLD 1986 SC 35; Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404; Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723; M. Omar v. Messrs Business Computing International v. I.B.M. World Trade Corporation 1997 CLC 1903; Muhammad Farooq & Co. v. Messrs Pakistan Tobacco 1997 CLC 52; Omar v. The State 1989 MLD 1317; Khurshid Ali v. Abdur Rauf PLD 1990 Lah. 211; R.K. Malik v. Lahore Diocesan Trust Association 1987 CLC 222; Ahmed Yar v. Manzoor Ahmed 1989 CLC 1271; John Paul v. Irshad Ali PLD 1997 Kar. 267; Messrs Muhammad Ishque & Sons v. Government of Pakistan 1992 CLC 1515; Messrs Pakistan Associated Construction v. Asif H. Kazi 1986 SCMR 820; Mian Muhammad Altaf v. Secretary Health, Government of Punjab PLD 1992 Lah. 199; Atlas Industrial Trading Corporation v. Dr. Jalil Asghar PLD 1970 Kar. 241; Institute Geographic National v. Overseas Trade Corporation NLR 1980 Civil 110; Ratan Chand v. Askar Nawaz Jang (1992) 3 SCC 67 (Ind.); Abu Razzak v. K.D.A. 1991 CLC 1591; Muhammad Yasin Khan v. Raja Feroz Khan PLD 1972 Azad J&K 46; Shaukat Ali v. Government of Pakistan PLD 1997 SC 342 and Amanullah Khan v. Government of Pakistan PLD 1990 SC 1092.