2021 PLP 1244 (CLC)

MIRZA VIQAS RAUF, J.

This single judgment shall decide the instant civil revision as well as connected Civil Revisions Nos.3872 and 3873 of 2016, as these petitions are having similarity of questions of facts and law.

2. The facts in precision necessary for adjudication of instant petition are that the petitioner, being public limited company incorporated in Pakistan engaged in the business of gas transmission, distribution and sale, entered into an agreement for supply of goods (hereinafter referred as "agreement") with respondent No.1, who is also being public limited company incorporated as such in Pakistan for the purposes of setting up and operating an independent power plant. The "agreement" executed between the petitioner and respondent No.1 contains arbitration clause for resolution of disputes interse parties. A dispute arose between the petitioner and respondent No.1 regarding validity of various force majeura events declared by the petitioner during the period between 28th of February, 2011 to 10th of May, 2011, whereby the petitioner had curtailed gas supply to respondent No.1. Pursuant to the dispute, arbitration proceedings were initiated in terms of clause 18.3 of the "agreement" wherein respondent No.1 claimed that the petitioner's force majeura events were invalid and the curtailment of gas supply was actually the breach of "agreement" which had caused loss and damage to him. The respondent No.2 was appointed as an arbitrator, who gave his award on 09th of March, 2016, whereby he awarded a sum of Rs.22,76,10,083/- as compensation and 46,793.96 as costs. The petitioner moved a petition before the Civil Court seeking an order to restrain respondent No.1 from setting off, deducting, withholding or adjusting the award amount from undisputed invoices payable by him to the petitioner for gas supply. A prayer to this effect was also made that respondent No.1 be directed to file the "agreement" in the court and application for interim relief was also filed which was dismissed vide order dated 13th of May, 2016. The facts in Civil Revisions Nos.3872 and 3873 of 2016 are also similar and akin to the present facts with only difference of name of respondent No.1 and amount of compensation Rs.23,96,84,090/-, Rs.20,l9,98,444/- and 46,805.12, 46,780.65 as costs, respectively awarded by respondent No.2 in these cases vide his award dated 09th of March, 2016. Hence these petitions.

3. Mr. Zaki Rehman, Advocate for the petitioner submitted that award can only be implemented after its being made rule of court by the process of law. He added that respondent No.1 without seeking the award to be made rule of court started implementing the same which is unwarranted. Learned counsel contended that an application to this effect was filed by the petitioner before the learned Civil Judge which is still pending, however, an application for the grant of temporary injunction was refused vide order dated 13th of May, 2016 in an illegal and unlawful manner. Learned counsel maintained that valuable rights of the petitioner are involved which have been infringed by the respondents in an illegal and unlawful manner without having a recourse to law. In support of his contentions, learned counsel relied upon "Messrs Jame's Construction Company (Pvt.) Ltd. through Executive Director v. Province of Punjab through Secretary to the Government of Punjab (Communication and Works) Department, Lahore and 3 others" (PLD 2002 Supreme Court 310).

4. Conversely, Mr. Salman Aslam Butt, Advocate for respondents, while controverting the submissions made by his adversary has raised certain preliminary objections with regard to the maintainability of instant petition. In furtherance thereof, he contended that an application for the interim relief is already pending before the learned Civil Judge and second application was not maintainable. He added that interim relief claimed in the application in hand was not part of the main relief. Learned counsel further contended that unless award is set aside by the court of competent jurisdiction, the same has a binding effect upon the parties. Learned counsel emphasized that the petitioner has not come in the court which clean hands and the proceedings were only launched to frustrate the effect of a valid award. It is finally argued that at the most the grievance of the petitioner as canvassed in the instant petition discloses a loss of monetary nature.

5. After having heard learned counsels for both the sides at some length, record has also been perused.

6. It is an admitted position that agreement executed between the petitioner and respondent No.1 carries an arbitration clause in the shape of Section 18.3 provided therein. Both the sides while invoking the said provision appointed respondent No.2 as the sole arbitrator, who submitted his award on 09th of March, 2016. As per sub-clause (e) of Section 18.3, it was agreed that any arbitral award or procedural order under said section shall be final and binding upon the parties and shall be the sole and exclusive remedy between the parties regarding all disputes, and each party undertakes to comply with and to carry out any such arbitral award or procedural order, fully and without delay. It is the case of petitioner that respondent No.1 without making award rule of court started its implementation which is not permissible. Record reveals that despite alleging a grievance against the award and intended threats to his rights, the petitioner have never made any effort to place the award before the court for the determination of its validity.

7. Section 44 of The Arbitration Act, 1940 empowers the High Court to make rules consistent with the Act ibid for the following purposes:- (a) the filling of awards and all proceedings consequent thereon or incidental thereto; (b) the filing and hearing of special cases and all proceedings consequent thereon or incidental thereto; (c) the staying of any suit or proceedings iii contravention of an arbitration agreement; (d) the forms to be used for the purposes of this Act; (e) generally, all proceedings in Court under this Act. (Underlining is supplied for emphasis) By virtue of Rule 10 of Chapter 4-B, Volume I, Part B relating to rules under The Arbitration Act, 1940 Lahore High Court Rules and Orders, any of the parties to the arbitration may cause the award or a signed copy thereof to be filed in Court in the manner prescribed in Rule No.3 which provides the mode of moving any such application. The petitioner though has annexed the copy of award with this petition but he never made any effort to place the same before the court of competent jurisdiction for the purpose of throwing a challenge to the same. The petition moved by the petitioner before the learned Civil Judge seeks multiple reliefs including a direction to respondent No.1 to file the arbitration agreement before the court enabling him to file objections / applications and to take appropriate steps to get the award set aside. It is quite strange that if the petitioner has a genuine grievance against the award why he himself has not taken any step to place the same before the court in terms of above referred provision of law. The conduct of the petitioner reflects that by filing the said petition, he only intends to avoid from the consequences of award without getting the same set aside through proper proceedings. Record is indicative of the, fact that on application for interim relief which was accompanying the main petition, ad-interim injunction was granted to the petitioner vide order dated 21st of April, 2016 directing the respondents not to proceed further with regard to adjusting the award amount otherwise than in accordance with law.

8. Learned counsel for the respondents while referring letter dated 18th of April, 2016 submitted that they have already adjusted the amount awarded in the award from the payment due towards the petitioner. This contention was even not refuted by learned counsel for the petitioner. Even otherwise amount was already adjusted before passing of the said order as is evident from the respective dates of the letter of adjustment and order of the court. The petitioner then instituted another application seeking interim relief, however, same was dismissed vide order dated 13th of May, 2016.

9. Needless to observed that above adjustments were made in terms of Section 18.3(e) of the agreement in pursuance to the award dated 09th of March, 2016 which has been made binding upon the parties and right of equitable set off is also available to respondent No.1 . The petitioner without bringing the award before the court intends to make it inoperative for all intents and purposes which is not permissible. There is no cavil that an award cannot be executed, unless it is made rule of court as is held in the case of "Messrs Jame's Construction Company (Pvt.) Ltd. through Executive Director v. Province of Punjab through Secretary to the Government of Punjab (Communication and Works) Department, Lahore and 3 others" (PLD 2002 Supreme Court 310) but the principles laid down in the case supra are founded on entirely different facts which to my humble view are not attracted to the present case. When the award is not before the court and the petitioner has not disclosed any valid ground for setting aside of the same, its binding effect cannot be fizzled on the basis of presumptions and suppositions. The petitioner if feels a genuine threat to his rights from the award, the can himself place the same before the court in terms of Rule 10 Chapter 4-B Volume I Part B of Lahore High Court Rules and Orders and can also claim the interim relief in the said proceedings. The relief of temporary injunction is an equitable relief which is solely based on well settled principles of equity. It is evident from the record that the petitioner has not only concealed certain material facts, while approaching the court but his conduct also disentitles him to claim the discretionary and equitable relief. Even otherwise the deduction made by respondent No.1 under the award is adjustable on final determination and at the most same can be termed as Monetary loss which can never be treated as irreparable loss in the eyes of law for the purposes of relief of injunction.

10. For the foregoing reasons, I am of the considered view that the petitioner has failed to point out any illegality or material illegality in the impugned order, warranting interference by this Court in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure (V of 1908). Resultantly all three petitions are dismissed with no order as to costs. MH/S-19/L Revision dismissed.