MALIK MUHAMMAD QAYYUM, J.- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by Messrs Habib and Company against the Chief Controller of Purchase, Pakistan Railways and Federation of Pakistan claiming that it was entitled to the benefit of Section 64-A of Sale of Goods Act, 1930 and the respondents be directed to pay the increase in cost to the petitioner treating it at par with the other suppliers.
2. Briefly stated the facts relevant for the present controversy are that respondent No. 1 placed an order for supply of 2552 Metric Tons of Pig Iron and issued a purchase order on 22.8.1995 which was accompanied by letter dated 22.8.1995. In response to the aforesaid letter according to the petitioner it gave its conditional acceptance vide letter dated 10.10.1995 in which it was stipulated that any further devaluation of Pakistani rupee in imposition/increase in taxes/duties after the issuance of purchase order will be at the risk of Pakistan Railways, In fulfilment of the contract the petitioner imported goods from abroad by opening letters of credit on 12.2.1996. At that time the rate of exchange of Pakistani currency with US$ was 31.5079 which, however, fluctuated and on account of the devaluation in the exchange rate the price of US dollars went on to Rs. 34.456 on 17.3.1996, Rs. 34.7271 on 24.3.1996, Rs. 34.7271 on 14.4.1996 and ultimately to Rs. 34.8680 on 18.4.1996.
This devolution, according to the petitioner, was done through the Notification issued by the Federal Government, It is claimed that on account of the aforesaid devaluation the petitioner had to pay additional sales tax, customs duty and other levies in addition to the increase in the precess of the imported goods, It is claimed that in view of Section 64-A of Sale of Goods Act, 1930 the petitioner is entitled to recover the increased burden from the respondents.
3. On behalf of the respondents it has been denied that the petitioners were entitled to any amount over and above the contracted price and it has been stated that the petitioner is not entitled to any increase due to devaluation etc. It is also objected that no Constitutional petition could be filed to enforce the terms of a contract.
4. After hearing the learned counsel for the parties we are inclined to agree with the learned counsel for the petitioner that the devaluation" having taken place by virtue of statutory notification issued by the State Bank of Pakistan the petitioner is. Entitled to the enhancement in the price. The petitioner has also cited certain examples where the respondents themselves have as a result of devaluation been allowing price in excess of the agreed price. This averment has been clearly mentioned in para 7 of the petition. However, the present petition cannot succeed in view of the fact that the relationship between the parties arise of of a contract which is not generally enforced in the Constitutional jurisdiction of this Court especially when there are disputed questions of fact e.g. As to how much burden has been placed upon the petitioner over and above the agreed price. These questions require evidence which cannot be recorded in these proceedings. Furthermore on the issue of discrimination also the petitioner has to produce the proof that the firms mentioned in the said paragraph were paid the price in excess of the agreed rate, In the facts and circumstances of the case the appropriate remedy appears to be to file a suit for recovery of money.
This petition stands disposed of in the above terms.