2021 PLP 996 (CLC)

AGHA FAISAL, J.

The petitioner, being a purveyor of metals, has filed this petition seeking recovery of its contractual dues from the Pakistan Steel Mills Corporation Limited ("PSM" / Respondent No.2).

2. The brief facts pertinent hereto are that PSM invited bids for the supply of aluminum ingots and the petitioner made deliveries in pursuance thereof. Per learned counsel, the petitioner has not been paid the consideration due in conformity with the contractual agreement, hence, this petition.

3. Mr. Haseeb Jamali Advocate set forth the case of the petitioner and submitted that since the delivery by the petitioner to PSM is not disputed then it is only just and proper that the petitioner may be enabled to recover its dues via recourse to the Constitutional jurisdiction of this Court

1. Learned counsel argued that the petitioner could not be non-suited herein, on the ground of forum non conveniens, as technicalities must not come in the way of substantial justice and that this Court was duly empowered to mould relief in order to mitigate the loss to the petitioner.

4. PSM filed comments to the present petition and at the very onset raised the issue of maintainability. It was pleaded that notwithstanding the settled law that the Constitutional jurisdiction was not amenable to the resolution of commercial disputes, in the present scenario the contract between the parties contained an arbitration clause

2. The comments on record specifically state that while PSM does not deny issuing a purchase order in favour of the petitioner, however, the same does not amount to an admission of liability and / or any quantification in respect thereof.

5. We have heard the respective learned counsel and have also considered the record to which our attention was solicited. It is settled law that disputed question of fact3 and / or contractual matters4 are not generally amenable for determination in the exercise of Constitutional jurisdiction. In view hereof we do confine the ambit of this determination to the question of maintainability, i.e. whether the Constitutional jurisdiction of this Court is the appropriate forum to adjudicate the commercial claim of the petitioner.

6. Learned counsel for the petitioner had relied upon Usmani Associates5 and Ittehad Cargo6 to bulwark his submissions. Usmani Associates is a judgment of the learned Single Judge of the Lahore High Court wherein judgment on admission was rendered predicated upon admission of liability. In the present facts and circumstances it has been specifically pleaded by the respondent that there is no admission of liability and / or quantification thereof. Ittehad Cargo enunciates the principle that state contracts are open to judicial review, however, the present petitioner does not challenge the issuance of any contract but seeks enforcement thereof. It is thus concluded that the authority cited by the learned counsel is distinguishable in the present facts and circumstances.

7. The learned counsel for the petitioner has been unable to proffer any justification as to why the forum of appropriate jurisdiction was not approached for the redressal of the petitioner's grievance. The alternate remedy is clearly available to the petitioner and in such context resort to Article 199 of the Constitution is misconceived.

8. The honorable Supreme Court had occasion to revisit the question of whether contractual claims merited enforcement through writ jurisdiction. Abdul Sattar Arbani7 pertained to recovery of contractual dues, against Government departments, through Constitutional petitions. The august Supreme Court reiterated that it remains settled law that factual controversies are not amenable to resolution before the Constitutional jurisdiction of the High Courts. Mushir Alam J. illumined that in such matters obliging statements of concerned officers / law officers must be viewed with caution. The guiding observations from Abdul Sattar Arbani are reproduced herein below: "

2. On the last date of hearing i.e. 09.08.2018 learned Additional Advocate General, Sindh contended that even in respect of Category-A petitions as noted above, the execution of work was not established and it appears to be based on obliging statement of the law officer. Since facts as noted above warranted grant of leave but looking into the large number of cases notices were issued to the respondents to satisfy the Court as to whether contractual matters could be enforced through writ jurisdiction.

3. Respondents are in attendance in person when confronted that in terms of reply filed by the official respondents in High Court wherein it was reported that construction work of various schemes at the stage of earth work was stopped, therefore, remaining construction work was abandoned. Respondents herein present in person states that work has been completed. When they were confronted whether any completion certificate has been issued or there is anything on record to show the physical verification and measurement of the work done. They were not able to satisfy the Court that there is any physical verification or measurement of the execution of work in respect of the Category-A petitions which are fifteen in number as detailed in paragraph No.5 of the impugned judgment

4. In this view of the matter where the factual controversy has arisen as to whether the work has executed or otherwise it is settled position in law that such matter involving factual controversy cannot be decided in exercise of writ jurisdiction. The learned bench of the High Court erred in overlooking the comments and denial by the respondents regarding completion of the work in respect of the respondent before this Court. In such like matters merely obliging statement either of concerned officer or law officer should be viewed with caution when in reply to paragraphs Nos.2 and 4 of the petition it was specifically denied that "it is submitted that the petitioner started the work at the level of earth work, thereafter the donor agency freeze the funds as such the remaining construction work is lying abandoned", therefore, the impugned judgment cannot be sustained. Accordingly, all these petitions are converted into appeals and allowed.

5. Needless to say that the respondents will be at liberty to file civil proceedings for recovery of the amount proportionate to the work done in accordance with law."

9. It is pertinent to record that while the learned counsel for the petitioner may have prima facie demonstrated the existence of a commercial claim before us, however, such a claim does not become actionable before the Constitutional jurisdiction of this Court8.

10. In view of the reasoning and rationale herein contained, we are constrained to observe that the present petition is not maintainable, hence, this petition, along with pending applications/s, is hereby dismissed.

11. The petitioner shall remain at liberty to seek the redressal of its grievance/s before the forum of appropriate jurisdiction and such adjudication shall remain uninfluenced by any observation herein contained. SA/B-18/Sindh Petition dismissed.