2002 PLP 1061 (SCMR)

Nemo for Respondents. Date of hearing: 6th April, 2001. RANA BHAGWANDAS, J.‑‑‑Petitioner‑company was granted a contract for carrying on work of Baggage Strapping and Tag Collection Services at Jinnah Terminal Complex, Quaid‑e‑Azam International Airport, Karachi through a Licence Agreement against the highest bid. According to the petitioner, terms of the licence agreement, inter alia, required it to deposit Rs.50,000 as security deposit and one month's licence fee, in advance. Accordingly, they handed over three cheques in the sum of Rs.30,000, Rs.10,000 and Rs.10,000 respectively to the respondents as required under the terms. Out of three cheques, cheque in the sum of Rs.30,000 was dishonoured by the petitioner's Bank with the endorsement "referred to drawer". Petitioner was informed through a notice about dishonour of the cheque but company claims that this fact was never brought to its notice. Licence Agreement was, however, cancelled/withdrawn by the respondents vide letter dated. 17‑11‑2000 impugned before the Sindh High Court seeking the declaration as under:‑‑ "Declare that the impugned order dated 17‑11‑2000 (Annexure P), issued by the respondents withdrawing and cancelling the contract, as illegal, based on dishonesty, mala fide, favouritism and the same being a nullity in the eye of law, be set aside and cancelled."

2. Main ground which weighed with the learned High Court in dismissing petitioner's petition in limine appears to be the breach of terms and conditions of the Licence Agreement on the part of the petitioner. In the impugned order dated 27‑3‑2001 learned members of the Division Bench took notice of the circumstance that intimation of dishonour of cheque was given to the petitioner as stated in parawise comments of the respondents which was not specifically controverted in the affidavit‑in‑rejoinder. High Court also observed that according to respondents, petitioner was required to make payment of Rs.81,180 towards security deposit and one month's advance licence fee but it failed to comply with this condition and did not deny this fact specifically.

3. At the hearing, Khawaja Sharful Islam, learned counsel for the petitioner reiterated the same arguments which were advanced before the High Court. Learned counsel vehemently urged that the petitioner was unaware of dishonour of the cheque‑and there was sufficient balance in its account against which the cheque was issued. He could not deny the factum of dishonour of the cheque but attempted to explain that it was on account of difference in the signature of the Director appearing on the cheque. It may suffice to observe that this plea was neither raised in the affidavit‑in?rejoinder nor urged before the High Court. Thus, this ground is not available to the petitioner at this stage. Petitioner failed to place on record its Banker's advice returning the cheque unpassed on the ground of difference in signature. Conversely, respondents had placed before the High Court Banker's slip returning the cheque unpassed with the endorsement as mentioned hereinabove.

4. Learned counsel next submitted that after coming to know that the cheque for Rs.30,000 issued by the petitioner was not passed, it had made payment of this amount through a Pay Order dated 9‑9‑2000 much prior to the cancellation of the contract, therefore, cancellation of the contract was unwarranted and illegal. The argument is misconceived on the face of it and we are least persuaded to agree with the submission.

5. There is another aspect of the case namely, paragraph 23 of the agreement providing for resolution of disputes between the parties. This paragraph expressly lays down that in case of any dispute arising between the Licensor and Licensee in respect of interpretation, conduct or performance of any terms or conditions of this Licence, the same shall be referred to the Director‑General, Civil Aviation Authority, whose decision thereon shall be final and conclusive and not open to challenge.

6. We called upon learned counsel for the petitioner to pinpoint whether any steps were taken for referring the dispute to the Director?-General. Learned counsel referred to a copy of letter dated 9th October, 2000 addressed to the General Manager (Commercial) highlighting its grievances but in our view this letter does not seek any resolution for the breach of contract alleged against it. From the record it appears that Director‑General. Civil Aviation Authority had granted an interview to the petitioner's representative on its request and company expressed its gratitude for this gesture. There is another letter dated November 1, 2000, addressed by General Manager (Commercial), Civil Aviation Authority intimating the petitioner that its case had been evaluated in the Headquarters and put up to the Director‑General but it was regretted that their request for execution of Licence/alternate business could not be acceded to.

7. Lastly, it may suffice to observe that the nature of Licence in favour of the petitioner and its breach or otherwise might be determined before the competent forum and invocation of writ jurisdiction for enforcement of the terms of a Licence can hardly be said to be appropriate. Assuming, without IE deciding, that there was, no breach on the part of the petitioner and it could be attributed to the respondents, remedy of the petitioner, if any, lay somewhere else and not before the High Court in the writ jurisdiction.

8. For the aforesaid facts and reasons petition sans any merit and is accordingly dismissed. Leave is refused. S.A.K./T‑22/S???????????????????????????????????????????????????????????????????????????????????? Leave refused.