1986 PLP 2973 (MLD)

Nemo for Respondents. Date of hearing: 14th April, 1986. MAMOON KAZI, J.‑‑This order disposes of C.P. Nos. D‑268, D‑269, D‑270 and D‑271 of 1986. The petitioner in each of these petitions was a Coal Contractor and was carrying on business at Quetta. By an agreement, dated 1‑8‑1985, signed between the petitioner and the Pakistan Mineral Development Corporation, a private limited company, the petitioner agreed to lift coal from coal mines in Baluchistan and Punjab. According to the terms of this agreement a schedule of performance was fixed by the said corporation and for due performance, of the same, a bank guarantee was taken from each of the petitioner. It was agreed that in case the petitioners failed to lift., coal below 75% of the cumulative quota, the said corporation could encash the bank guarantee. Thereafter, the petitioners were unable to lift coal in accordance with the performance schedule agreed by them, and the respondent corporation in January, 1986 informed the ‑petitioner accordingly. The petitioner also learned that the respondent corporation was taking further steps to encash the bank guarantees and consequently the petitioners sent a joint representation to the Corporation requesting it to hear the petitioners and review the situation. However, one Mr. Faridullah a relative of the petitioners was forced by the corporation to withdraw the representation on behalf of the petitioners which was done by him vide letter dated 11th February,. 1986. Thereafter, vide letter dated 16th February, 1986, the respondent corporation informed the petitioners that since their lifting performance had been to the extent of only 75% of the actual contracted quantity, a penalty was being imposed under the terms of the said agreement. The amount of penalty thus being realised from the petitioners ranges between Rs.2,75,000 and Rs.11,00,

000. The petitioners have been further asked to deposit these amounts with the Deputy General‑Accountant of the respondent corporation, latest by 16th April, 1986, failing which they have been threatened that the said respondent would be constrained to encash the bank guarantees. The contention of Mr. Ghulam Hussain Abbasi, learned counsel for the petitioners has been, that the proposed action by the respondent No.1 is illegal, mala fide and against the principles of natural justice. It has been further contended by the petitioner's counsel that the respondent corporation No.1, has assumed the power of judicial review in its own case and has determined the dispute in its favour. Reliance has also been placed by the counsel on P L D 1969 S C 80, wherein it was held that despite express stipulation in contract, Court, on equitable principles, can relieve defaulting buyer from forfeiture of earnest money if circumstances of case justify such a course. We are afraid, none of these arguments can be available to the petitioners. Copies of respective agreements filed by the petitioners alongwith the petitions clearly point out that the petitioners had agreed to lift certain quantities of coal for due performance of which they had further furnished bank guarantees to the respondent corporation. It had also been agreed by them that in case of failure on their part to lift the coal according to schedule fixed in the agreement, the respondent corporation would be at liability to encash the bank guarantees. It, therefore, appears that the petitioners had themselves empowered the respondent corporation to encash bank guarantees in case of short lifting of coal. The fact that the petitioners failed to lift coal according to the agreed schedule does not seem to be in dispute as the same also appears to have been admitted by the petitioners in their joint representation to the respondent corporation, filed as Annexure 'M' to the petition. However, the contention of Mr. G.H. Abbasi, has been that since the action proposed to be taken by respondent No.1 is outside the terms of the agreement, no penalty under the law can be imposed. Reliance has been placed in this respect on the Supreme Court case to which we have just referred. Be that it may, but the averments made in the petitions primarily and essentially require interpretation of the terms of agreement which can be possible only when surrounding circumstances are taken into consideration. That would require evidence of the parties. It hardly requires to be mentioned that in case where grievance of the parties arises from some contractual right of obligation determination of which requires recording of evidence, then remedy cannot be sought by way of a constitutional petition. Since the action which is now being alleged to be taken by the respondent corporation is purported to be under the terms of agreement 'to which the petitioners were themselves a party, relief by way of a constitutional petition cannot be granted to them. Although it has been alleged that the action which is now proposed to be taken by the respondent corporation is opposed to the principles of natural justice or that' the corporation is acting as a Judge in its own case, but it all depends upon the interpretation of the terms of agreement which the petitioners have signed with the respondent, corporation. If such powers were given in the agreement, then the petitioners cannot turn back and raise a grievance. For the aforesaid reasons these four petitions were dismissed in limine. H.B.T.????????????????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.