2025 PLP 1871 (CLD)

MOHSIN AKHTAR KAYANI, J.

By way of this common judgment, we intend to decide the captioned appeals as both the parties are aggrieved from the judgment dated 26.09.2019 passed by learned Civil Judge 1st Class (East), 2025 Islamabad, whereby, award dated 19.12.2018 has been made rule of the Court.

2. Both the parties i.e. Defence Housing Authority (hereinafter to be referred as DHAI) and Multi National Venture Development (Pvt.) Limited) (hereinafter to be referred as MNVD) have filed their separate appeals challenging the validity of award as well as the judgment, passed by the learned Civil Judge after considering the objections under the law. In order to resolve the controversy raised in these appeals, Multi National Venture Development (Pvt.) Limited (MNVD) has been declared as appellant as they have filed their appeal at the first instance referred as MNVD, whereas respondent DHAI has also filed their separate appeal against the rule of Court, therefore, for the purposes of convenience, DHAI has been referred as respondent and the applicants in C.M. No. 125/2021 are referred as affectees.

3. Brief facts referred in these appeals are that the appellant MNVD entered into a Joint Venture Agreement with the respondent/DHAI dated 09.12.2006 referred as JV Agreement for the purpose of establishing a state of art healthcare, support services and recreational facilities project named as Health and Education City Islamabad hereinafter to be referred as (HECI Project), whose funds have to be arranged by the respondent DHAI, due to certain dispute among the parties qua the contractual obligations under JV Agreement a settlement and release deed dated 27.03.2008 was signed between the parties. The Settlement Deed was signed after the decision of the respondent DHAI to take over the HECI Project and to provide all the financing through respondent's own resources. In the light of the services rendered and expenses already incurred by the appellant under JV Agreement, 20 Kanals of commercial land (6 Kanal for Stripe Mall and 14 Kanals for Tower) on sole ownership and 07 Kanals for petrol pump and CNG station on profit sharing was to be transferred to the appellant under the Deed. The respondent financed the HECI Project and the appellant was made responsible for deliverables on behalf of the respondent as per the terms of the Memorandum of Agreement (MOA) dated 03.05.2007 signed between respondent and Harvard Medical International (HMI), later on, changed to Partners Harvard Medical (PHMI) and thereafter Joint Agreement dated 06.06.2008 was executed between the parties. The main and important clauses of the said agreement are as under:- DHAI may dedicate a parcel of land measuring approximately 80 eighty kanals to be known as the "LAND for future projects with MVD and more fully described hereinafter in Annexure-A and out of which 6 kanals land shall be utilized for the Project. MVD has the requisite skills and ability to facilitate the development of the LAND including coordination and supervision of construction, development and sale of commercial and residential real estate. After getting the written approval from Board of Directors of MVD, MVD shall incorporate the Management Company (Private) Limited (the "Company") to carry out Shop a Shop Project. Role of Company shall be to undertake the planning, developing, construction, promotion and selling of the Project. Furthermore, neither DHAI shall participate in the capital of the Company nor involve itself, directly or indirectly, in the operations and Management of the Company, and the Parties wish to cooperate in the implementation of the Project as a joint agreement, Written approval from BOD of MVD and Memorandum of Article and association of the Company shall be part and parcel of this agreement and attached as Annexure-B and Annexure-C respectively. A project has been designed, which has been defined in Section-I of the Joint Venture Agreement:- The project shall mean the management of marketing, presales and sale, designing, construction, commissioning, financing of all the activities of SHOP A SHOP Project from the sale proceeds, of commercial shops on the project site as indicated in project site/possession Plan. Eight floors shall be constructed in the project, in which four (04) floors shall be comprised of shops while remaining four (4) floors dedicated for offices. Sale price for each office shall be defined as Rs.6000/- sq ft. 126 shops owned and constructed by DHAI in Phase-III sub-sectors. All the sale proceeds shall go to DHAI's account and MC shall be entitled of 2% of the total sale proceeds for the dealer's commission. Although 2 (two) shops on each floor shall be retained by DHAI for its own use i.e. 40 (forty) shops in total to be reserved for DHAI. The dispute arose between the parties in relation to the Joint Agreement and notice for commencement of arbitration has been served in terms of section 22 of the Joint Venture Agreement, which deals with the dispute resolution mechanism The appellant has filed his application under Section 20 of the Arbitration Act, 1940 for appointment of Arbitrator before the Islamabad High Court through C.S. No.62/2012. The Court vide order dated 06.06.2015 has appointed Mr. Justice (R) Anwar ul Haq as sole arbitrator in relation to the disputes between the parties arising of the Joint Agreement dated 06.06.2008. As per stance of the appellant in the statement of claim comprising of five volumes, following has been prayed in the arbitration proceedings:-- a. Direct the Respondent to continue to act in accordance with the provisions of the Shop A Shop Agreement till the filing of the award by the Honorable arbitrator: b. Restrain the Respondent from terminating the Shop-A-Shop Agreement, assume direct control of the Shop-A-Shop Project or take any other coercive measures against the Claimant; c. Restrain the Respondent from taking any coercive measures against the offices, residences and businesses of the Claimant, its directors or employees, within the DHAI: d. Order rendition of accounts by the Respondents, e. Order the Respondent to pay the Claimant's legal costs: f. Direct the Respondents to indemnify the Claimant and pay the allottees of the Shop-A-Shop Project and any other third parties and amounts and monies due and payable to them due to delay in completion of the Shop-A-Shop Project; g. Direct the Respondents in transfer to the Claimant 7 kanals of land for a CNG station pursuant to Scheduled II of 2008 Settlement Agreement; h. Direct the Respondent to transfer to the Claimant or its nominees the remaining unsold shops on its part of 6 kanals of land allotted to the Claimant pursuant to Schedule II of 2008 Settlement Agreement; i. Direct the Respondent to transfer to the Claimant the roof rights of the block Nos. A, B and C constructed on the 6 kanals land of Appellant land allotted pursuant to Schedule II of 2008 Settlement Agreement; j. Direct the Respondent to transfer to the Claimant nominees, 14 kanats of land for residential and Commercial plots of 5 marla each and approve its Plans without delay pursuant to Schedule II of 2008 Settlement Agreement; k. Direct the Respondent to transfer to the Claimant nominees, residential homes, House 3 St.

1. Sector B Phase II DHA Islamabad; l. Direct the Respondent to undertake all acts necessary to cause mutation of the land in favour of MVD Pakistan in the relevant records pursuant to Clause 1.2 of 2008 Settlement Agreement; m. Direct of Respondent to transfer to the Claimant nominees, 14 kanals of land for residential and Commercial plots of 5 marlas each and approve its Plans without delay pursuant to Schedule II of 2008 Settlement Agreement; n. Direct the Respondent to pay to the Claimant Rs. 2,677,754,527 in amounts due and payable under the Shop-A-Shop Agreement; o. Direct the Respondent to indemnify the Claimant and pay to Skyways, and any and all sub-contractors, and any and all amounts payable under the Construction Agreement (list all the construction agreements here); p. Order the Respondent to pay the Claimant's costs; q. Grant any other relief that the honorable Arbitrator may deem just and appropriate in the circumstances. On the other hand, respondent DHAI acknowledges all the agreements, JVs, even Shop-A-Shop project vide joint agreement dated 06.06.2008, which was under supervision of appellant MNVD for the purpose of construction, supervision and claims, that a time period was fixed for completion and delivery of the shops in all respects to its members i.e. December, 2009, but the appellant MNVD due to lack of experience, failed to complete the project and deliver the possession of the shops to the members/affectees timely, whereafter the application under Section 20 of the Arbitration Act, 1940 was filed before this Court and Arbitrator was appointed. The respondent DHAI has also filed their reply to the claim with the prayer that the appellant has filed the statement of claim to avoid rendition of accounts of Shop-A-Shop project, which has to be completed till 06 December, 2010 as per original agreement dated 06.06.2008 whereas, the respondent has failed to complete the project within stipulated time provided in the agreement in question. As per respondent DHAI, it was also alleged that the claimant/appellant has received huge amounts from the respondent DHAI, which was paid under Clause 8.5 of the agreement. However, the pace of work regarding construction of project has been deliberately stopped/delayed/slowed in order to blackmail the management of DHAI. As per DHAI stance, appellant solely utilized the received amount for its sole benefit. The DHAI has alleged that project was delayed due to appellant MNVD as complete drawings after Second Addendum, which were required for project completion, were not provided by MNVD/MC. That the claimant did not pay sale consideration of its land in Shop-A-Shop project, therefore, claimant has no right to claim any amount whatsoever without payment of sale consideration of the land and claim is liable to be dismissed. The Arbitrator after considering pro and contra, claims and replies of the parties, framed the issues vide order dated 10.12.2016 in the following manner:-

1. Whether the claimant is entitled to recover the amounts claimed in terms of the provisions of Shop-A-Shop Agreement, from the Respondent? OPC

2. Whether the respondent is entitled to recover the amounts as per its counter claims from the claimant? OPR

3. Whether the claimant was obliged to pay any cost of land to the respondent under the Shop-A-Shop Agreement? OPR

4. If issue No.3 is proved then what is the amount liable to be paid by the claimant to the respondent as cost of land and what is the effect of non-payment thereof? OP Parties

5. Whether the delays in completion of projects and the introduction of subsequent addendum to the Construction Agreement are a result of respondent's failure to release payments in accordance with the provisions of Shop-A-Shop Agreement? OPC

6. Whether the respondent issued any refunds to investors/purchasers in violation of the provisions of Shop-A Shop Agreement; if so its effect? OPC

7. Whether the claimant is entitled to claim any amounts on account of HEC under clause 8.5 of Shop-A-Shop Agreement? OPC

8. Whether the prayers made in sub-clauses f to m of the prayer clause in the claim are irrelevant and beyond the scope of Shop-A-Shop Agreement? OPR

9. Whether the Claimant contributed its share of cost of construction of the project? OPC

10. Whether the claimant solely utilized the recessed amount for its own benefit: if so to what effect? OPR

11. Whether the project was delayed by the claimant as it failed to provide complete drawings after the Second addendum to the Construction Agreement? OPR

4. In view of the above issues, the learned Arbitrator has given his award dated 17.12.2018, in which question of revenue share, cost of construction of shops, falling of claimant share, architecture and designed charges, management and supervision fee, dealers commission, unseen expenses, HMI Coordination fees/MC fee, loss of income have been settled in the findings on issue No.1 and then different findings were given on issue No. 3 and Issues Nos. 5 and 11 jointly

5. In nutshell, the award has been questioned through objection petition filed by MNVD before the Civil Court, whereas no objection petition was filed by the DHAI. The learned Civil Court after hearing both the parties, passed the order dated 26.09.2019 and dismissed the objections of the appellant MNVD.

6. The learned Judge has concluded the award in the following manner:-- In view of above, court is held that award is made rule of court with regard to findings and conclusion drawn under relief 12(a) of the award and Respondent/DHAI is entitled for amount of Rs.346,230,000/- from claimant/MVD, whereas the award is set aside to the extent of findings made under relief 12(b) of the award qua passing of preliminary decree of accounts and handing over of project to DHAI for completion and findings the building. Whereas the award is remitted back to learned arbitrator for decision afresh on claims remained undetermined, as explained in detailed in paras Nos.26(b)(c) & (e) of this judgment i.e. issue pertaining to commission of 126 shops, refund of shops and claims referred in prayer clauses, f, h, i and k of claiment's SOC. This exercise may be completed within period of four months from receipt of this order. Petitioner/claimant is directed to handover copy of this order as well as all record to the learned arbitrator. Decree sheet be prepared. File be consigned to record room after its due completion/compilation. Parties/learned arbitrator may file an application for re-summoning of file when award is filed on points so remitted.

7. Learned counsel for the appellant MNVD contends that the issue No, 1 deals with the Shop-A-Shop agreement, whereby MNVD being claimant is entitled to recover the amount under the said agreement known as Joint Agreement dated 06.06.2005. The statement of claimant submitted by MNVD through Mian Amer Masud was also referred in this regard, whereby Joint Agreement of Shop-A-Shop project was a joint venture of both the parties, where each party has to contribute 06 Kanals of land for the same purpose. The 14 Kanals of commercial land is yet to be transferred to the Claimant's nominee. The respondents in various meetings with the Claimant made the transfer of the aforementioned 14 Kanals and finalization of profit sharing agreement of CNG station conditional upon the progress of Shop-A-Shop Project and in this regard Minutes of the Meeting dated 05.05.2011 held on 7th to 29th June, 2011 were referred.

8. In order to deal with the nature of Shop-A-Shop agreement, it is clearly established through a Joint Agreement in terms of clause "d" that MNVD has the requisite skills and ability to facilitate the development of the Land including coordination and supervision of the construction, development and sale of commercial and residential real estate for such purpose, the MNVD has to incorporate the Management Company Private Limited to carry out Shop-A-Shop Project. As per the appellant/claimant stance, role of company is to undertake the planning, developing, construction, promotion and selling of the project, but on the other hand, DHAI shall not participate in the capital of the Company nor involve itself, directly or indirectly, in the operations and Management of the Company, rather parties shall cooperate with each other in the implementation of the Project as a joint agreement. Eight floors are to be constructed in the project, in which flour (04) floors shall be comprised of shops while remaining four 04 floors were to be dedicated for offices, sale price for each office shall be defined as Rs.6,000/- sq.ft. The definition under section-I of the Joint Agreement defines the total land allocated by the DHA for the purpose of further projects including six kanals out of said land shall be handed over for the project. The financial requirements have been explained in definition clause of the agreement means the funds required by MC for the management of Task force and HMI deliverable for and on behalf of DHAI according to the MOA between HMI and DHAI as specifically referred in Annexure-E.

9. The ownership of land and Sale proceeds of Shop-A-Shop project has been explained in section 4 of the Joint Agreement, which is as under:-- 4.1. 126 shop owned and constructed by DHAI in Phase-III sub-sectors. All the sale proceeds shall go to DHAI's account and MC shall be entitled of 2% of total sale proceeds for the dealer's commission. Although 2 (two) shops on each floor shall be retained by DHAI for its own use i.e. 40 (forty) shops in total to be reserved for DHAI. 4.2. 320 Shops (Approximately) constructed on the six Kanals piece of land of MVD. All the sale proceeds shall go to DHAI's account and one day after it shall be transferred to MVD's account or to the account of its directors. 4.3.1. 320 Shops (Approximately) constructed on six kanals piece of land of DHAI's LAND and MVD shall be entitled to recover the actual cost of construction of DHAI's shop. Schedule of cost of construction is attached as Annexure-F. Although following are approximately percentage of charges:- I. 4% Architectural and Design charges (of Cost of Construction). II. 4% Construction of Management and Supervision expense (of Cost of Construction). III. 2% Unseen expenses (of sales). IV. 2% dealer commission (of sales).

10. The above referred clauses clearly spell out that 120 shops owned and constructed by DHAI in Phase-II sub-sectors, all the sale proceeds shall go to DHAI's account and MC shall be entitled of 2% of total sale proceeds for the dealer's commission, whereas 320 shops approximately constructed on the six Kanals piece of land of MNVD and DHAI shall receive the sale proceed and DHAI is under obligation to transfer the same to MNVD Account one day after the same has been received, even MNVD is entitled to recover the actual cost of construction of DHAI's shops within the percentage parameters referred in Clause 4.3.1.

11. There is no dispute qua the marketing issue, which was to commence from or before 30.05.2008 and shops to be delivered by December, 2009 Under Clause 8.4, the cost of construction of DHAI shops has been mentioned in Section 4.3 shall be transferred from DHAI's account to MNVD's account on monthly basis. All these aspects clearly establish that funds have to be allocated by the DHAI, which are to be transferred to MNVD after sale of the shops at their own end. Even the obligation of DHAI has been referred in Section 13 in clear terms viz-a-viz the responsibility, of MNVD, whereby MNVD is to observe that the contractor makes timely payments to the nominated sub-contractor and other workers. DHAI shall not be responsible of any such default on behalf of MNVD. The entire construction shall meet the standards of DHAI which will be monitored/examined by the Chief Engineer, any sub-standard construction shall be rejected by the Chief Engineer of DHAI. If Chief Engineer rejects any material then MNVD shall be bound to remove the rejected material from the site within the time specified by the Chief Engineer. Furthermore, if Chief Engineer rejects any construction then MNVD shall be bound to demolish the rejected work and reconstruct the same upto the standards of DHAI as per clause 14.2

12. The above referred details clearly spell out the responsibility of MNVD. the appellant/claimant of this case, who has raised their concern in Section 22 of the Dispute Resolution.

13. Mian Amer Masud CW-1, appeared before the Arbitrator on behalf of Multi National Venture Development (Private) Limited (MNVD) and has taken the categorical stances in the following manner- i. Marketing for the Shop-A-Shop Project was done exclusively by the Claimant both in Pakistan and abroad at its own risk and expense. ii. As a result of successful marketing, around 722 shops were sold. iii. The total revenue to be generated from 722 shops ought to be Rs. 1,521,500,000/-, but the total revenue actually generated as initial deposits and subsequent part payment installments was Rs.1,142,794,527/- iv. In terms of Section 4.3.1 of the agreement, amount of Rs. 41,724,444/- per month has been transferred for the period of eighteen months, starting from June, 2008, but the respondent has not transferred the due share as agreed in the agreement. v. The respondent did not release cost of construction to the Claimant and later it was decided that this amount would be transferred to a joint account, but instead the respondent misappropriated the funds. vi. Management Company entered into an Agreement with Skyways Construction (Pvt.) Ltd. for construction of the Shop-A-Shop Project on 19-3-2009, which was also countersigned by the respondent. vii. The project was awarded at the rate of Rs.2395 per square feet and was to be completed in a period of thirty months. viii. The respondent vide letter dated 10-11-2010 requested for a reduction of the scope of the project from 08 floors to 05 floors and by virtue of 2nd Addendum to the Construction Agreement the respondent took direct responsibility to make timely payments against the IPCs and as a result of default of payments on part of the respondent, the contractor Skyways refused to perform the contract and in this regard Skyways Final Termination Notice dated 19-1-2011, 12-1-2011 and 17-3-2011 were referred in the statement of Claimant. ix. MVD hired the Firm Architectural and Civil Engineering Services (ACES) in 2008 for designing of the Shop-A-Shop Project, whereby services of Architecture of Civil Engineering were given, even revised drawings were provided. x. As per claimant stance 3.5 feet thick raft foundation laid for 08 storey building and due to delay in construction on the remaining area, the cost of construction, which was initially Rs.2395 per square feet, has been escalated when the project has been reduced. xi. The claimant has very outlook of the building was changed, the Heating Ventilation and Air Conditioning (HVAC) was deleted from the plans, the Project Director, who accommodated the new contractors M/s MAM and Tijaret and made certain over payments. xii. The respondent also gave refund to approximately 200 purchasers against the terms and conditions of the allotment letters without any prior consultation with the Claimant. xiii. Claimant issued multiple letters to the respondent for resolution of dispute, with regard to default of payments from December, 2010 till February, 2011 and along with dispute notice was sent to respondent on 24-2-2011, though the Committee was constituted to resolve the issue, but claimant was compelled to serve an Arbitration Commencement Notice on 1-6-2012, even the respondent has extended threats to take over the management of the Shop-A-Shop Project. xiv. The delay in appointment of the Arbitrator was also referred to the DHAI respondent, which further effects the claims.

14. As per stance of Mian Amer Masud, MNVD is claiming the following amounts:- a. 2% dealers commission on 126 constructed shops by respondent in Phase-II which become Rs. 6,740,000/- b. Sale Proceed of Shop-A-Shop Rs. 311,219,985/- due to the claimant from the total revenue generated through sale proceed by virtue of reduction in scope of the Joint Agreement and balance amount of Rs. 281,896,080.25 due to the Claimant from the share of construction cost of remaining areas along with delay and escalation within interest at the rate of 14% on this amount from 2011 to 2015, the outstanding revenue share in Rs. 907,975,310.43/- c. 4% of cost of constructions of DHAI share of shops as Management and supervision fees, whereby balance of Rs.450,628/-is payable. d. 4% cost of construction of DHAI's share of shops as Architectural and design fee Rs 36,784,043,80 is payable. e. 2% of sale proceeds of DHAI's shops as unseen expenses Rs.11,427,945,27 is payable. f. 2% of sale proceeds of DHAI's shops as dealer commission of 722 shops is Rs 1,521,500,000/- is due. g. Loss of income has been calculated, which became Rs.2,701,411,441/-.

15. Mian Amer Masud, CW-1 was cross-examined at length by the respondent, who acknowledges that MNVD Pakistan (Pvt.) Ltd. was registered on 13.02.2008 with SECP, who acknowledges that 06 Kanal of land was to be contributed by each of the parties and price of the land was not paid in cash or through cheque to respondent. He volunteered that land was allotted to Claimant Company by respondent in terms of Settlement and Release Deed against consideration mentioned in the said document. It is admitted position that Shop-A-Shop project covers three sites and comprises of 06 blocks and total area of the project covered including space for parking and roads. C.W-1 after consultation of record verified some of the payments, available in Volume-45, Annex D/1 to Exh.C/1. CW-1 admitted that entire amount spent on construction of said projects represented only the amount so received from the buyer and the documents showing payments to various persons in Annex. D/1 Vol-45 were made from the amount so received from the buyers of the Shape-A-Shop project. As per record only 06 kanal out of total 80 kanals were to be utilized for Shop-A-Shop project, as such no other project was undertaken. CW-1 confirms that apart from Shop-A-Shop project, respondent had other shops in phase-II in DHAI Volunteered that 126 such shops were sold by MNVD Pakistan through agents. However, he is not aware qua the details of such agent, who is UAE based Pakistani. The details of marketing expenses have not been placed on record. CW-1 also acknowledges that MC has not filed any claim and it was obligation of said MC to execute and complete Shop-A-Shop project, whereby respondent had no role in the Management and Operation of said MC. CW-1 also confirms that certain payments have been received by MVD through respondent as revenue share and as per Exh. R-11 MVD withdrew a sum of Rs. 16,720,000/- as part of Revenue shares. He acknowledges the payments as Exh. R-13, Exh. P-14, Exh. R-15. Exh. R-16. Exh. R-17. Exh. R-18 Exh. R-19 and Exh. R-20. He also acknowledges that certain payments were made by the respondents to MC, especially Exh. R-23, amount of Rs. 8 million Exh. R-24, a sum of Rs. 3.5 million. Exh. R-25, a sum of Rs 20 million. Exh.R-26, a sum of Rs 10 million, Exh. R-27, a sum of Rs. 02 million Exh. R-28, a sum of Rs.02 million Exh. R-29, a sum of Rs. 02 million Exh. R-30, a sum of Rs 02 million Exh.R-31, a sum of Rs. 02 million Exh. R-32, a sum of Rs. 1.88 million, which was received in the account of MNVD under the head of Revenue Share Exh.R-33, a sum of Rs. 2,820,000/- was transferred by respondent to the Account of MNVD under the head of Architectural and Design fee and management fee through Exh. R-34, a sum of Rs. 10 million was transferred by respondent to the Account of MVD under the head of Revenue Shares, Exh.R-35 A sum of Rs.6,034.800/- was transferred by respondent to the account of MNVD under the head of Revenue Share Exh. R-36.

16. There is no denial that Exh. R-37, the agreement was executed between MC and Skyways Construction (Pvt.) Ltd. with the consent of the parties and countersigned by the respondent DHAI, whereby Skyways has to provide the drawing and specifications and to execute the work under the contract in accordance with Statement of Work (SOW). All the payments were made to the Skyways by the respondent DHAI and MC did not spend any amount on construction. A sum of Rs.463,227,496 was paid to Skyways. MC had not deposited any amount in the joint account. The Skyways has excavated work and raised gray structure, though the gray structure left incomplete and Skyways had to complete the work within 18 months w.e.f 19.03.2009. CW-1 also acknowledges that till date the project remained incomplete and MC, DHAI and UMS (Pvt.) Ltd., have not filed any claim. The Shops of Shop-A-Shop project were sold out within one month of the launch of the project. CW-1 also admits that Exh. R-39, a sum of Rs. 02 million was transferred by respondent to MNVD under the head of dealers commission. He further acknowledges that through voucher and cheque Exh. R-40, a sum of half million was transferred by respondent to MNVD under the head dealers' commission and through Exh R-41, a sum of half million was transferred by respondent to MNVD under the head dealers commission. CW-1 also admits that MNVD had not filed a statement showing the expenditure from the said Revenue Share, payment on the construction of the project. It is also admitted by CW-1 that a sum of Rs.10 million was paid by respondent to the Management Company vide Exh. R-47 and through Exh. R-48 a sum of Rs.1,755,000/- was paid to ACES by respondent through Col. Hamid Raza Butt. Through Exh.R-49, a sum of Rs. 10,638,298/-was paid to ACES by respondent through Col. Hamid Raza Butt. Through Exh.R-50, a sum of Rs 2,127,660/- was paid by respondent to MNVD on 17-09-2009 under the head "Management Fee". Through Exh.R-51, a sum Rs. 05 million was paid by respondent to ACES on 03.10.2011. Though Exh.R-52, a sum of one million was paid by respondent to ACEB on 04.07.2012. The cheque Exh.R-52/1 was issued by CW-1 and also Director (Finance) of the respondent. He also admits that through a cheque Exh. R-53 a sum of Rs. 05 million was transferred to ACES. That through voucher Exh.34 and cheque Exh. R-54/1, a sum of Rs. 04 million was transferred to ACES on 11.02.2013.

17. Evidence reflects that IPC-5 was sent to respondent vide their letter dated 21.07.2014 Exh. R-56. Similarly, an amount of Rs. 44,477,293/- was paid to M/s Tijaarat Developers vide Exh R-75/1 after deduction of income tax. It is also admitted in the evidence that agreement was executed between Management Company for DHAI-UMS (Pvt.) Ltd. and M/s Tijaarat Developers on 18.06.2013 vide Exh. R-55.

18. The minute scanning of the entire evidence of Mian Amer Masud, CW-1 affirms that all the payments and cheques referred as Exh.R-78. Exh. R-79, Exh. R-80, Exh. R-81, Exh. R-82, Exh. R-83 to all the companies on behalf of the MNVD or directly by the respondent DHAI including the correspondence were acknowledged by CW-1 and nothing has been denied.

19. During the Cross-Examination, Mian Amer Masud, CW-1 has been confronted with the specific question:- Qes. In case funds are made available for completion of remaining work of Shop A Shop project, can you give an undertaking to the Arbitrator that the remaining work will be completed within 02 months? Ans. It will not be possible for me to give the said undertaking particularly with reference the time period of 02 months suggested by learned counsel, without consulting members of the Board of Directors of the claimants company. Qes. In case respondent complete the remaining work of Shop-A-Shop project and rendered complete accounts to the Arbitrator: is it acceptable to you? Ans. No. Qes. In case the respondent complete the remaining work of the project under the supervision of the Arbitrator or a person or persons appointed by Arbitrator. Is it acceptable to you? Ans. I personally do not have any objection however I will give a final answer after consulting members of BODs of claimants company. Whereafter, matter was adjourned by the Arbitrator to enable Mian Amer Masud, CW-1 to consult with Members of Board of Directors of the claimant company to answer the questions raised, but surprisingly no answer was further recorded in this case. CW-1 also admits that in terms of Exh-C-3, no construction work had commenced regarding HECI project. That 06 Kanals of land was to be arranged by Claimant Company for Shop-A-Shop project, however, he denied that the said land was not contributed by the claimant and respondent had allotted the claimant company some land and out of the same land 06 kanals were utilized for the Shop-A-Shop project. Three allotment letters of 10 marlas each are present at page 28-30 of their application. These plots were allotted to claimant in lieu of expenses incurred and services rendered vide settlement and release deed Exh C-1/1/ Amer Masud, CW-1 also denied that the entire land underneath the buildings of Shop-A-Shop project belongs to respondent.

20. The above referred claims if seen in context with the questions and answers, this Court has also asked both the parties to resolve handing over of the incomplete building to either side, so that both the parties rights can be settled vide order dated 29.06.2022 and parties were directed to seek instructions from their Authorities for handing over of the building as well as its completion. The proposals were submitted on 05.07 2022 by the respondent DHAI and detail proposals were submitted by the claimant/appellant MNVD, but matter could not be settled. This aspect if seen in context of Arbitrator award, there is no denial that the amounts so paid by the respondent under Revenue Share, Cost of Construction, Architecture and Design Charges. Management and Supervision Fee, Dealer Commissions, HMI Coordination/MC Fee have rightly been concluded by the Arbitrator based upon the admitted facts, especially when all the receipts, cheques, payments, letters were admitted between the parties in the cross-examination. The Arbitrator has taken into account the statement of RW-1 as well as record and rightly acknowledged that none of the parties, have brought on record as to from whom share and price, how many shops have been refunded. Though at this stage, the third party claimant, the purchaser of the shops are still waiting for completion of construction of the project and delivery of possession of the shops, who are entitled for compensation as per the award, such aspect discloses the loss of third party i.e., the allottees, who have been deprived of from their hard earned money due to lack of coordination, planning by DHAI and MNVD.

21. We have also gone through the statements as well as cross-examination in juxtaposition of the claimant, whereby it has rightly been held by the Arbitrator in the award that certain plots were transferred to the claimant as consideration in terms of Exh.R-CW-1/1, joint agreement dated 06.06.2008 Exh. C-3 to Exh.R-233 that these plots, which were allotted to the claimant, part of consideration, nor any amount has ever been claimed by DHAI, therefore, the very cancellation of those plots by DHAI was not acknowledged in the legal sense, hence the findings on issue No.3 has rightly been settled by Arbitrator.

22. CW-1, Mian Amer Masud acknowledged all the payments made directly to the MC or the contractors through different receipts and banking instruments, even the completion of the project was the responsibility of the MNVD by all means, which is the claimant in this case, who are responsible to complete the construction and deliver the shops in the stipulated time frame which was to adhered to though the first responsibility rightly been settled against DHAI who is a statutory body under the law, who entered into agreement with MNVD (Claimant) and the project was carved out, though CW-1 has given details of their accounts and claims, but surprisingly the record did not speak in line with the claims, even no effort was put by Arbitrator himself to hire a Chartered Accountant Firm for reconciliation of statement and verification of those accounts details receipts, payments etc, rather shifted this aspect to the Civil Court to pass preliminary decree on completion of building and project to the vendees, such aspect is beyond the scope of Arbitration clause, especially when parties themselves opted to resolve their controversies in a manner provided in terms of Clause 22 of the Joint Agreement.

23. On the other hand, this Court has gone through the evidence of RW-1, who confirms that amount for 565 active shops was Rs.1,096,104,293/- and 116 shops it was Rs. 32,197,74/- and for 72 shops it was Rs. 14,492,500/- and total amount received for 753 shops comes to Rs 1.142,794,527/ The Director Finance also confirms that Rs.266,853,627/- was paid to the claimant as revenue share. tor sale of shops and amount of Rs.2,820,000/- was under the head of "Architectural and Design fee" and not as revenue share He was confronted with the figure mentioned in Exhs.C/19 and C/20 are deducted from the amount stated by him to have been paid to the claimant company as revenue share and balance comes to Rs.260,682,459/- RW-1 has taken the stance that respondent has to make payment through his own sources as claimant company had not paid its share of cost. He has denied that he has no evidence of consultation allegedly been made with the company before refunding the received sale proceeds of shops though he admitted that there was delay of 134 days in making payment to M/s Skyways, voluntarily stated that delay was because of technical reasons. He has also seen allotment letters Mark C/Q to Mark C/GG though he has not confirmed all these were issued by respondent in favour of claimant company. RW-1 confirmed that in the first instance sale proceed was to be deposited in the account Annexure C/2 and there-after the deposited amount was to be transferred to the joint account of the parties and was finally to be paid to the contractors by the parties and this is how the Escrow account was to be handled. He confirmed the opening of joint account on Shop-A-Shop project on 26.09.2008 and in response to Arbitrator's question noted on 16.11.2017, the procedure for payments made to contractors as well as to claimant company is detailed in Exh.RW/1/1, which is declared correct procedure as per his knowledge and information

24. The second star witness of respondent is Col. (Rtd.) Muhammad Eijaz Hussain, who appeared as RW-2 and submitted his statement Exh.R-238 comprising of 12 pages, who admitted joint venture agreement dated 19.12.2006, settlement and release deed dated 27.03.2008, also confirmed all the minutes of meetings Exh.C/21 to Exh.C/27, whereby he also confirmed the reservation recorded by Dr. Amer Masud in one of the meeting. RW-2 admitted that there was no delay on the part of respondent in payment of IPC 10 to M/s Skyways and voluntarily stated that claimant company had completely stopped work at site of shop a shop project since mid of the year 2015, even they de hired management staff. RW-2 also admitted the delay of 134 days in clearing IPC 10 by respondent, referred Exh.R/238, though he voluntarily stated that as per the terms of addendum to Exh.R/37, in lieu of said delay extension of time was granted automatically. He also confirmed that several objections were raised by M/s Skyways in the matter of delay of payment. He further confirmed that scope of work was reduced for the reasons of defect in columns and delay in completion of project on the part of claimant company even he voluntarily stated that contract was awarded to MAM on the insistence of Dr. Amer Masud, even agreements with M/s Tajarat and MAM were countersigned by respondent, though he has started that award of contract to MAM was against respondent's policy but the same was approved and countersigned in good faith for timely completion of project in the interest of allottee who had paid for the shops.

25. Similarly the other witness of respondent RW-2 further confirmed that payments were made to contractors from shop a shop bank account. Being Secretary DHA, he confirmed the allotment letters Exh.C/32 to C/48 issued in the name of claimant company. He also produced the notice of cancellation of allotment dated 16.11.2011 Exh.R/342 and contends that he warned Dr. Amer Masud during his meeting with him that since consideration has not been paid the plots will be cancelled, however, when he has been confronted with the minutes of meetings Exh. C/22 to C/26, there is no mention of cancellation of allotment of claimant's plots in the said minutes.

26. Now question arises as to whether the transfer and settlement of accounts to the Courts account, is a misconduct on the part of Arbitrator, which was settled by the trial Court in para-26 of the impugned judgment, in which it was held that learned Arbitrator has proposed to pass a preliminary decree of accounts and then proceedings to conduct further proceedings towards a final decree may be carried out, which is not warranted under the law. This exercise can be undertaken when a court is dealing with a civil suit but in present proceedings the court is not authorized to undertake such exercise. Moreover, by proposing so, learned arbitrator has delegated his duties to the court and the same is unwarranted. This portion of award is separable with other findings/portion of the award, so same is separated. To this extent legal misconduct is established, hence, this portion of award is set-aside".

27. In this regard, we have been guided by the case law reported as 2009 MLD 1418 (Government of N.W.F.P v. Shahin Shah and others), wherein, it was held that court seized of a proceeding for making award, as rule of the court, was not supposed to sit in judgment over it as a court of appeal. Court was also not required to make reappraisal of evidence recorded by the Arbitrator to discover any error or infirmity in the award, but it would not mean that it was to ditto or rubber stamp the award mechanically without much questioning about it. Legislature, did not envision the intervention of the court just for hack of it, it was rather purposive, meaningful and goal oriented. Jurisdiction of Court being supervisory was meant to check the excesses and over-range in the conduct of Arbitrator in the arbitration proceedings. The role of Court was that of active dissenter rather than passive consenter. Trial Court in the present case, considered itself just a plant meant for manufacturing the goods known as rule of the court on receipt of some raw material in the form of award. No part of its judgment reflected due or conscious application of mind. The judgment passed by the Trial Court, in circumstances, could not be maintained under any canons of law and propriety.

28. The apex Court in case law reported as 1992 SCMR 65 (M/s Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another, has held that provisions of section 17 of the Arbitration Act imposes a duty on Courts to see that there is no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award. This can be done by the Court suo motu, apart from the application, which a party may make for either remission of the award or its reversal.

29. We have also gone through the Section 17 of the Arbitration Act, 1940 whereby Legislature has imposed a duty upon the Court to see that there is no cause to remit the award or any of the matters referred to arbitration for reconsideration of the matter through the objections within the stipulated time, the Court shall pronounce the judgment according to the award in line with the parameters set out in Section 30 for setting aside of the award, where Arbitrator or umpire has misconducted himself or the proceedings, the award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Section 35 of the Act or award has been improperly procured or is otherwise invalid.

30. We have also gone through the powers provided under Section 16 of the Arbitration Act 1940 that settles the question to remit the award, where there are mandatory requirements to be observed (a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred; or (b) where the award is so indefinite as to be incapable of execution, or (c) where an objection to the legality of the award is apparent upon the fact of it.

31. While applying these tests provided in Section 30 of the Arbitration Act, 1940, what is the misconduct of the Arbitrator if he has failed to conclude the award on a particular question, whether the same is to be called misconduct. especially in this case, where Arbitrator was unable to show his expertise qua the mathematical calculations where the Arbitrator has shown his inability in a particular subject, the same could have been settled by calling an Auditor or Chartered Accountant Firm and as such trial Court has rightly held that this portion is separable and to be remanded back to the Arbitrator, who can give its findings, but such aspect did not call as a misconduct in true sense by Arbitrator, rather he has not concluded the matter finally and left it to the Court, therefore, trial Court has rightly remanded back the same, as such there is no denial that Arbitrator has recorded the reasons, which have further been appreciated by learned Civil Court.

32. There is no dental to the proposition that Arbitrator is a final judge to give decision and efforts should be made to give award. Both the parties have relied upon the multiple judgments of superior Courts, but surprisingly the evidence recorded in the mode and manner in this case and lengthy cross-examination of approximately 128 pages of Amer Masud, CW-1 is against the mandate of Arbitration Act, even the Arbitrator has allowed the lengthy cross-examination, though every aspect has denied by CW-1, which could have been resolved by way of interrogatories, notice to admit the documents and notice to admit facts, much time has been consumed in this lengthy cross-examination, such type of practice could have been avoided. The Arbitrator is equipped with the legal Authority to perform functions within the reference given by the Court in terms of arbitration clause in the present case, who is the best judge to settle the question of law and the questions on the basis of rival claims of the parties.

33. As per the stance of the appellant MNVD, the Arbitrator has misconducted himself in terms of Section 30 of the Arbitration Act, 1940, though it is admitted position of law that misconduct in the arbitration does not necessarily imply anything in the nature of fraud or moral turpitude. In the judicial sense, the misconduct of an Arbitrator means his failure to perform his essential duty, resulting in substantial miscarriage of justice between the parties. According to Atkin, the words "misconducted the proceedings means such a mishandling of arbitration as is likely to cause some substantial miscarriage of justice as held in PLD 1977 SC 237 (Brooke Bond (Pakistan) Ltd. v. Conciliator Appointed by the Government of Sindh and 6 others).

34. Similarly, a failure to discharge the real question at issue of award could be called as bad, which is apparent on record, where certain aspect was referred to the Court, the reasons have already been discussed above as the Arbitrator has no expertise in this field and he can hire the experts and decision rendered by the trial Court to remit the award to that extent is within four corners of laws.

35. This aspect has also been taken into account in case reported as 2006 YLR 589 (Abdullah Contractors v. Water and Power Development Authority) whereby it was held that Arbitrators to hear the parties fresh and provide them opportunity to lead evidence and after fixing the responsibility of causing delay in completion of work to determine the overheads, such aspect if placed in juxtaposition with the order of the trial Court there is no cavil that the trial Court has rightly remitted the award of that particular portion, which is also a separable to the other issues.

36. We have also gone through the evidence of DHA, which has been presented through RW-1 Muhammad Kashif Sharif, who has submitted his evidence/statement through Exh. R-237 comprising of 12 pages in which he has reiterated the stance of DHA per their pleadings. The witness confirms that it was obligation of MNVD to procure affiliation of Harvard University or any other institute of international repute. He also admitted that Exh.R/7 was executed between respondent and HMI. There is no denial that it was not a condition that Harvard University or hospital campus is established in DHAI though it is admitted by RW-1 that Amer Masud used to assure that it was gradual process and that in the first instance it will be HMI and there-after Harvard University will establish its campus as per clause 4.1, Exh. C/1/1. He admitted that all these payments were made to HMI directly. He admitted that he has seen the audit report and despite objections of auditor respondents kept on making payments to HMI though it was made upon the approval of executive board of respondent. There is no provision in Exh.R/7 obligating claimant company to reimburse respondent on behalf of HMI. RW-1 further confirmed that in meeting dated 31.07.2008 decision was taken and as a result joint account was opened in the name of respondent and MNVD (Pakistan). The claimant was paid 240 million under the head of "HMI Coordination Fee", which was paid as service fee without prior audit of expenses.

37. While going through the evidence of above star witnesses of respondents as per the claimant claim there is no denial that every document starting from initial agreement of shop a shop project, payments, even allotment to the claimant of different plots payments made contractors sub-contractors and different companies, even delay of 134 days in IPC 10, everything is admitted by all the witnesses of both the parties. We are also in conformity qua the payments so far made to the claimant and as such there is no denial to the payment under different heads whether it is a consultancy fee, coordination fee, MC fee, refund of shops or the share of MNVD everything is admitted. therefore, the issues, which were h ndled by the Arbitrator, if seen in juxtaposition with the award, it seems that Arbitrator has rightly passed the award except portion which was referred in findings of issue No 12(b) of the award, which has rightly been remitted back to the learned Arbitrator for decision afresh by the trial court vide judgment and decree dated 26-09-2019 in the light of principles set out in 2014 SCMR 1268 (A. Qutubuddin Khan v. Chec Millwala Dredging Co. (Pvt.) Ltd.), 2002 SCMR 1903 (Messrs Tribal Friends Co. v. Province of Balochistan), PLD 2002 Karachi 427 (Maj. (Retd.) Humayun Akhtar v. Pakistan Defence Officers Housing Authority), PLD 1989 Quetta 89 (Shaukat Hussain v. Sarfraz Hussain), AIR 1963 Calcutta 583 (Brahma Swaroop Gupta v. Diwan Chand). As such the portion referred in 12(b) of the award is non-conclusive and based upon happening of future event and completion of project though at this stage, when the original contract is in field, either party has not terminated the contract, which is admitted position that no one would be forced to complete the project as it is between the parties to settle this aspect which the Arbitrator cannot compel or the court cannot direct to complete the project, especially in such constrained relationship.

38. During the course of proceedings, the parties have shown their willingness to amicably settle the matter and time was granted to them to conclude the matter in order to save the miseries of those allottees, who are still looking forward for completion of project since 2010 till date as a result whereof both the parties have submitted their proposal in compliance of order dated 29.06.2022, whereby both the parties have given their options and priorities to their counterparts for completion of the project on their specified terms and conditions, but unfortunately both the parties conclusively rejected each other's proposal and same has been recorded vide order dated 18.07.2022 hence in these peculiar circumstances, when both the parties were not interested to proceed through any mediation or reconciliation process, this Court has to proceed accordingly.

39. In view of above, we are in agreement that the trial Court has not committed any illegality in the impugned judgment and has rightly settled the issues in the light of principles set out in judgment reported as 2018 SCMR 662 (Gerry's International (Pvt.) Ltd. v. Aeroflot Russian International Airlines) therefore, we are at the view that parties have not referred any evidence in respect of capital budget, recurring expenditure, salaries and additional related cost. The MNVD refers to deliverables stipulated in agreement and the evidence so produced before the Arbitrator showing the acceptance of deliverable by DHA, all payments made to MNVD under the head of HMI Coordination Fee were made after requisite approval granted by DHA. There is no denial that MNVD has to provide the services whereby proof of expenses and proof of services are totally different. The issue relating to the refund of shops by DHA was not carried out with the express consent of MNVD, nor any individual was produced as witness to receive the refund. The primary question relating to the non-compliance of terms of agreement, delay caused to the conclusion of project or which party is liable for causing delay has not been addressed by the learned Arbitrator. Similarly, the escalation cost has also not been settled. As such the claimant is unable to demonstrate any major error apparent on the face of award to set-aside the complete award, though the portion which was not settled has already been remitted by the trial Court to the Arbitrator, whereas in this case the trial court has only observed and set aside the portion of award qua issue No.12(b), rest of the case has been upheld, which is a correct view under the law.

40. At last the ground for setting-aside the award in terms of Section 30 of the Arbitration Act, 1940 has not been demonstrated by the appellant/MNVD in this case, nor by DHA in their respective appeal to the extent of portion of remitting of award, therefore, in terms of Section 17 of the Arbitration Act, 1940, the portion, which was remitted back to Arbitrator is upheld Para-27 of the impugned judgment is found to be in accordance with law, therefore, the said direction be complied with accordingly, however, In case learned Arbitrator refuses to proceed further with the direction given by the trial court the law has to take its own course.

41. The epitome of the above discussion is that both the appeals are hereby DISMISSED. MH/45/Isl. Appeals dismissed.