1. ' The plaintiff has prayed as follows:--
(a) For a sum of Rs,110,033,449 on account of the plaintiff together with return/mark-compensation from the date this suit until full payment and or/ adjustment by the defendant No,1.
2. (i)Shortfall of bulk discount/rebate Rs,71,275,551.
3. (ii)Compensation for loss on account of closure of pay phone Rs,17,981,600.
4. (iii)Loss of 7% inter-connected discount Rs .704,823; and (iv)Refund of 5% payment of surcharge Rs,7,071,475.
5. (b)a declaration that the plaintiff is not in default of its obligation to make payment of bills to the defendant No,1 to the extent of the amount claimed by the plaintiff and payable by the defendant No,1; and (c)a declaration method of bulk discount/rebate under the interim relief package applied by defendant No,1 is wrong and the calculation method applied by the plaintiff is correct and should be applied on an ongoing basis.
(d) a declaration that the defendants are not entitled to unilaterally terminate the applicability of the interim relief package with effect from 30-6-1998 or 31-12-1999 or any other date unless the plaintiff is suitably compensated for losses suffered during the prohibitory sanction period.
(e) for damages against the defendant No,2 for losses suffered by the plaintiff on account of the prohibitory sanction, as per details of losses provided in loss sheet attached to the notice of the legal counsel of the plaintiff.
(f) to a permanent injunction restraining the defendant No,1 from disconnecting services or otherwise interfering in service being provided to the plaintiff on account of the alleged delay in payment of bills to the extent of the amount claimed by the plaintiff and payable by defendant No,1 as specified in clause (a) above and to otherwise discriminate against the plaintiff on account of this suit having been filed by the plaintiff;
(g) cost of the suit;
(t) any other relief, which this. Court may deem fit and just, in the above circumstances.
6. ' The plaintiff has filed a suit for recovery, declaration and injunction. The plaintiff is providing card operated pay telephone service business to the public in Pakistan since the year 1992 pursuant to a licence granted by the Federal Government in exercise of its powers under section 4 of the Telephone- Act, 1885 under the terms given in the Licence Agreement No,7(96)/90-P & T dated 9- 7-1992. The plaintiff provided a card phone service to all main cities and towns of the country including Karachi. In pursuance of the licence the plaintiff undertook a rapid program for installation of its pay phone units And establishment of supporting infrastructure. To obtain the vast capital investment for these operations the plaintiff became the first telecommunication sector company in Pakistan to invite public subscription of its shares on the stock exchange in July, 1995. The shareholders of the plaintiff have invested their private funds as equity in the company.
7. With its capital resources the plaintiff had during a short period up to July, 1996 installed thousands of card phones in 55 major cities of the country and built sizeable. Infrastructure. The Karachi Market has huge business on account of being the largest urban and commercial center of Pakistan. Up to 30th June, 1995 the plaintiff had installed sizeable pay phone units in the Karachi territory. The plaintiff additionally made investments in importing pay phones and a further order for 1000 pay phones was placed with the supplier in France. This investment was undertaken with shareholder's equity and bank borrowing to both sources, the plaintiff had promised return and repayment respectively. The Federal Government through its order dated 1-7-1995 passed in the ' interest of public safety prohibited the transmission of all messages, inter alia, through card phone services within and outside the city of Karachi. The defendants had sent a legal notice to the plaintiff dated 24,7-1996. Thereafter, the plaintiff wanted to file a Constitutional Petition before the Lahore High Court Bench at Rawalpindi inter alia requiring the defendant No,2 to provide adequate compensation to the plaintiff for loss and injury that it has suffered on account of the prohibitory sanction by defendant No,2. The loss 'exceeded Rs,2,261 million. In response to the legal notice the defendant No,2 through. Pakistan Tele communication Authority (PTA) in terms of letter dated 20-1- 1997 agreed to restore the pay phone services in Karachi and offered an interim relief package in consideration of and upon the condition that the plaintiff withdraws claim for compensation. The plaintiff accepted the interim relief package as an interim relief measures in exception of further and more complete relief package to be negotiated in terms of the letter dated 20-1-1997.
8. According to the plaintiff the defendant No,1 failed to notify the modus operandi for implementation of the interim relief package for a substantial period of time. The defendant No,1 also failed to implement the interim relief package in accordance with its terms.
9. ' According to the plaintiff the defendant committed the following proceedings:
(a) The defendant No,1 substantially and inordinately delayed the calculation and payment/adjustment of rebate relief discount to the plaintiff.
(b) The calculation of the amount of rebate relief discount was carried out on a basis contrary to the formula specified in the interim relief package itself. The defendant No,1 apparently applied a "slab system" formula for calculation of rebate relief discount, whereas the formula applicable should have been an absolute billing amounts, in essence the defendant No,1 applied different percentage (s) of discount/ rebate on portions of the total monthly billing on a sliding scale for a monthly billing of Rs, 10 million. The rebate relief discount is as follows:- ' On the first Rs,2.5 million No, Rebate.
10. ' On the next Rs,2 million 8% On the next Rs,2.5 million 12% ' On the balance 3 million 15% ' Whereas according to the plaintiff the formula for calculation of the relief 'rebate discount clearly requires a single percentage to be applied to the entire amount of the billing and in the above example the plaintiff is entitled to discount of 15% on the entire billing amount of Rs,10 million. The defendant No,1 insisted on prior full payment of all bills by the plaintiff before any adjustment/payment for relief rebate discount was to be made available to the plaintiff, which was contrary to the intent of the Interim Relief Package and caused undue and uncalled for financial/liquidity constrains on the plaintiff. According to the plaintiff the defendant No,1 has further sought to unilaterally terminate the applicability of the interim relief package with effect from 30-8-1998 the PTA has advised the defendant No,1 to continue the applicability of the interim relief package up to 31-12-1999. The plaintiff claims that such a termination of the interim relief package either on 30-6-1999 is without any basis or justification and will defeat the very purposes for which such interim relief package was offered and the plaintiff would not be compensated anywhere near the losses suffered and claimed by the plaintiff.
11. ' Due to the above actions and omission on the part of the defendant No,1, the plaintiff is supposedly in constant financial and liquidity pressure which has adversely affected the operations of the plaintiff. The plaintiff thus protested the act/omissions of the defendant No,1 but without any success. The various subsequent communication on the subject were addressed by the plaintiff to the defendants, however, the defendants failed to respond favorably and continued insisting on payment of all bills by the plaintiff first without granting any adjustment for such relief rebate discount to the plaintiff and continued to apply an incorrect calculation method to suit the defendants.
12. ' Instead of resolving the issues raised by the plaintiff, has been kept under constant threats by the defendant No,1 of disconnection of services to the plaintiff on account of delays in payment of bills raised by the defendant No,
1. In fact on several occasions the services were disconnected and loss has been suffered by the plaintiff. Several letters were addressed but the defendant, No,1 simply refused to enter ten the contentions of the plaintiff. The plaintiff further coursed its legal counsel to serve a final notice dated 23-12-1999 calling upon the defendant No,1 to resolve the outstanding issues and/or to refer the matter to arbitration voluntarily to which the defendant No,1 has not responded.
13. ' According to the calculation of the plaintiff as of 31-10-1999 a sum of Rs,71,275,551 is payable by the defendant No,1 to the plaintiff as and by way of shortfall in relief rebate discount, calculated in terms of the interim Relief Package, which the defendant No,1 has completely failed to acknowledge and/or pay to the plaintiff. The plaintiff further claims to be entitled to receive further amounts in respect of billings for the months of November, 1999 onwards on account of the difference in calculation of relief rebate discount. The plaintiff also claims direct loss up to 31-10- 1999 due to the action of the defendant. The different amounts have been mentioned in the body of the plain detail and in the prayer claim.
14. Through a C.M.A. No,159 of 2002 the plaintiff has sought injunction against disconnection his lines of pay phones till the adjustment of rebate and interconnecting his lines of pay phones Rs,349,953,212 on the ground that applications being C.M.A. No,168 of 2000 and C.M.A. No,4386 of 2001 filed by plaintiff were allowed and M/S AF Fergusons & Co. Reputed Chartered Accountants were appointed to determine the amount of rebate payable by the defendants to the plaintiff, as per the order dated 9-8-2001 in terms of report an' amount of Rs,349,953,212 were calculated by M/S Ferguson's & Co. Chartered Accountants, to be payable by the defendants to the plaintiff as on August, 2001. It was further submitted that this was principal amount and no markup was added thereon while the plaintiff was entitled to mark-up up to tune of Rs,75,074.199. The above amounts were calculated till August, 2001 while the plaintiff was also entitled for futther rebate and interconnect discount for the period of September, 2001 onwards. Plaintiff further submitted that despite orders dated 9-8-2001 and report of the Chartered Accountants, defendants continued to make frivolous claims for payment of certain amounts and continued to threaten disconnection of the pay-card phones on the pretext that in the injunction order there is no clear directions to such effect and the stay order was only valid up to the period of May, 2001 and defendants made it clear that till specific order restraining the disputed disconnection, they would proceed with the disconnection of phone, hence ' the plaintiff moved this injunction application seeking clear order restraining the defendants from disconnecting the telephone lines.
15. ' In rebuttal to the above injunction application defendant No,1 filed their counter-affidavit along with certain documents and submitted as per Leiter dated 20-1-1997 and 21-12-1998 the rebate was granted only for the period commencing from the restoration of service following the lifting of the prohibitory order on 20-1-1997 and ending on 21-12-1999. The relief package was limited to the telephones disrupted in the Karachi/Hyderabad Region alone and not to the country wide billings raised by the defendant No,1 on the plaintiff. The amount claimed by the subject plaintiff is an unliquidated sum, which cannot be the subject of a legal or equitable offset against the bills, raised by the answering defendant. The fact that the rebate was admissible only in respect of affected phones was reiterated by the defendant No, 2 vide its letter dated 19-2-2000. It was further submitted by the defendant under the Pakistan Telecommunication (Re-organization) Act of 1996, compensation to the plaintiff for the acts, tortuous or otherwise of the Federal Government was beyond the powers of defendant No,2 9nd much less dis (sic) they extend to the issuance of a directive to the answering defendant to compensate the plaintiff for the acts of the Federal Government. The answering defendant and defendant No,2 well, being independent entities, separate and distinct from the Federal Government, was under no legal obligation to compensate the plaintiff for any act of omission default or injury committed. By the Federal Government. Section 4 of the Pakistan Telecommunication (Reorganization) Act, 1996 deal with the power and functions of defendant No,2 and the said section does not empower him to grant compensation to any person for the alleged tortuous acts of the Federal Government. As per letter dated 20th January, 1997, interim relief was ordered by the defendant No,2 in connection with import duty on telecommunication equipment and the reduction in the Central Excise Duty. The period of relief was not supposed to be infinite as the same would amount to hostile discrimination against other public card phone operators. The interim relief package in any event was determined in the letter dated 21-12-1998 and copy whereof is filed and marked as Annexure-A. The defendants further submitted that the relief package was Confined to disruption in the Karachi/Hyderabad Region alone and not the countrywide billings raised by the defendant No,1 any grievance of the plaintiff against defendant No,2. In respect of the relief package must be redressed by the defendant No,2 alone. And neither the relief package have the force of a statutory instrument issued pursuant to delegate powers or otherwise. He further submitted that letter dated 20-1-1997 and the relief package does not provide any advance adjustment and the plaintiff has come to Court with unclean hands and wants to adjust the most favourable figure in the report of the Commissioner when in fact it should be providing a bank guarantee to secure the amounts that it would have been required to pay but for the order dated 9-8-2001. The defendant No,1 further submitted that the plaintiff sells its telephone cards much earlier in time than the time if becomes liable to pay the call charges to the answering defendant and payment is to be made on the basis of actual calls made whereas each card sold by the plaintiff is sold as a prepaid card. The defendant No,1 submitted that an amount of Rs,324,682,536 was due to be paid by the plaintiff by the December, 2001 and that the answering defendant has erroneously given rebate to the plaintiff for the period of 20th January, 1997 to June, 1998 on a countrywide basis while it was to be confined up to the Karachi/Hyderabad Region affected by the prohibitory order of Federal Government. A figure of Rs,12,302,237 mentioned in alternative if (ii) basis 2 being the figure arrived at by the Commissioner on the basis of the interpretation place on the relief package by the defendant is further liable to be reduced as the Commissioner has calculated rebate for the year ended 31st December, 1997 and for the first six months of 1998 on a countrywide basis whereas the plaintiff is entitled to rebate for only the affected phones installed in Karachi/ Hyderabad. Accordingly the correct amount of figure for alternative II(ii).. Basis 2 should be Rs,1,495,038 and the plaintiff has been paid/credited against the rebate up to Rs,10,911,216. In terms of the above, the answering defendant has over paid a sum of Rs,9,416,178, for which a separate suit has been filed. In view of the above, the defendant No,1 has prayed that no case has been made out for temporary injunction.
16. ' The plaintiff through his rejoinder in refutation to the above counter-affidavit along with certain documents by and large denied the contentions made therein in toto. He submitted that neither the relief rebate ended on 12-12-1999 and nor it specifically mentions its validity up to December 12, 1999 or that the same was limited to the telephone lines in Karachi/Hyderabad Region alone. In fact the rebate was awarded by the Government of Pakistan, duty approved by the Cabinet and forwarded to PTA for implementation which they did and this does not provide power to cancel or amend the decision of the Cabinet. Plaintiff denied the -receipt of document referred to by defendant and termed if a self-made document as an afterthought to the claim of plaintiff, it is further submitted that the defendant has chosen not to file the letters of 'defendant No,1 whereupon the Annexure A was sent, which confirms that defendant No,1 had connected to the fact that rebate was for all regions and revenue rebate was restricted to pay phones in Karachi. The plaintiff has referred to section 54 of the Act referred by the defendant which empowers the defendant No,2 to grant compensation. It was further case of the plaintiff that it has wrongly been assumed by the defendant No,2 they are PTA not the Federal Government. It is quite strange, that on the one hand answering defendant argues on behalf of PTA and simultaneously claims that any grievance in respect of the relief package must be redressed by defendant No,2 alone. Defendant had to follow the directives duly approved by the Cabinet, regarding relief package which he failed to implement. The defendant No,2 has suggested that the rebate formula of defendant No,1 is correct while the fact remain that well-reputed Chartered Accountants were appointed by this Court as Commissioners for the very purpose, who submitted report which speaks for itself. The defendants have decided of their own to maintain their practice of disconnecting telephone lines despite injunction order of this Court. It is submitted by plaintiff that the defendant is violated the injunction orders of this Court hence they reserves right to file contempt proceedings.
17. It is clear from the affidavit to the application under Order 39, rules 1 and 2, C.P.C. And the counter- affidavit as well as the report prepared by Messrs Furguson & Company that figures indeed require to be worked out as the liabilities have to be settled. The order dated 9-8-2002 is a detailed order barred upon which Messrs Furguson were appointed accountants to determine the actual liabilities. After submission of the report, issues were framed and based upon the issue the matter was to be resolved. Under the circumstances it would be appropriate if evidence is recorded and thereafter the matter is decided. In the interim period C.M.A. No,159 of 2002 is granted.