2005 PLP 551 (CLD)

(10)‑‑‑‑‑‑‑‑-‑ (11)‑‑‑‑‑‑‑‑‑‑ (12) ‑‑‑‑‑‑‑‑‑‑ (13) No escalation shall be paid to contractor in any case. The rates offered/quoted by the firm/contractor shall be considered inclusive of all increases in the rates/prices of material and labour till the completion of project in all respect. (14)‑‑‑‑‑‑‑‑‑ (15)‑‑‑‑‑‑‑‑‑‑ (16)‑‑‑‑‑‑‑‑‑‑ (17) ‑‑‑‑‑‑‑‑‑‑ (18) ‑‑‑‑‑-‑‑‑‑ (19) Bulldozer/Excavator shall not be used on works/projects within territorial limits of Islamabad without obtaining prior written permission from Director W and S, Director, Maintenance, Director Electrical and Director Roads, CDA Islamabad. (20) ‑‑‑‑‑‑‑‑‑‑ (21)‑‑‑‑‑‑‑‑‑‑ (22) The Contractor are advised in their own interest to firm up their prices correctly before quoting the percentages in the tender. It must be clearly understood that a percentage once filled cannot be revised upwards by the contractor by overwriting/cutting in the tender or through a letter attached with the tender. Tender containing such revisions of offers will be rejected irrespective of their financial implications. (23) The contractor should furnish a certificate that he has cleared all professional tax payable to him issued by the Excise and Taxation Department. 'Schedule', No. Description of Qty. Item Rate Unit Amount Excavation for founda tion trenches and drains in all kinds of soil i.e. gravelly and murrum soil, wet silt, clay or mud conglometa tion of gravel and coulders, soft sandy or disintegrated and hard rock by hammering, chiseling and jumper work etc. complete i.e. stacking the serviceable and un -serviceable material separately and back filling the excavated material in foundation plinth or under floor i.e. breaking clods, watering consolidation by ramming in layers not exceeding in depth to full compaction and disposal of surplus excavated stuff as directed lead up to any chain and lift 460,211 Cft. Rs.115.20 (Rs. One hundred fifteen/20 Ps.) % Cft Rs.530.163 0-5 Rs. 125/64 % Cft Per Hundred Cubic feet. Rs. 201,50 6/97 5'‑8' 160386 Cft. (Rs. One hundred twenty five/64 Ps.) In case aforesaid terms and conditions of agreement, clauses of schedule and application be put in a juxtaposition then it is crystal clear that the agreement was executed between the parties with regard to the construction of work and not supply of goods. It is settled proposition of law that document must be read as a whole in order to determine its true nature, import and scope as law laid down in the following judgments:‑‑ "Sahibzada Mansoor Ahmad's case 1993 MLD 2529 Abdur Razzaq's case 1995 SCMR 1489" In case, as mentioned above, the documents be read as a whole then only one net result emerges out of the reading of the document that it is building contract between the parties. Learned Single Judge was justified to come to the conclusion that section 64‑A of Sale of Goods Act is not attracted as the ingredients of section 645‑A are not applicable in the present case which is in consonance with the law laid down in the State of Madras v. Messrs. Gannon Dunkeley and Company AIR 1958 SC

560. The relevant observation is as follows:‑‑ "In a building contract, the agreement between the parties is that the contractor should construct a building according to the specifications contained in the agreement and in consideration therefore receive payment as provided therein, and as will presently be shown there is in such an agreement neither a contract to sell the materials used in the construction, nor does property pass therein as movables. It is therefore, impossible to maintain that there is implicit in a building contract a sale of materials, as understood in law.' "But we are concerned here with a building contract, and in the case of such a contract, the theory that it can be broken up into component parts and as regards one of them it can be said that there is a sale must fail both on the grounds that there is no agreement to sell materials as such, and that property in them does not pass as movables." In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the learned Single Judge. Therefore, this intra‑Court appeal has no merit and the same is dismissed. M.B.A./W‑30/L Appeal dismissed.