1974 PLP 41 (SCMR)

Nemo for Respondent No.

2. Date of hearing: 19th October 1973. WAHEEDUDDIN AHMAD, J.‑Respondent No.1 Haydari Construction Company obtained a contract from the petitioner in February 1971, for the construction of the Balance Diversion Works Simply Dam Project. It was to be completed within 9 months with effect from the 18th February 1971. While forwarding their tender to the petitioner, respondent No. 1 requested that if their tender was accepted they were prepared to give a rebate of 1} % on the, total tender value of the work provided the petitioner advance to the respondent 10 % of the total tender value i.e., Rs.10 lacs. The tender of respondent No. 1 and their offer of 1J % rebate were accepted by the petitioner and an amount of Rs.9,98,394 was advanced to the respondent on the guarantee of Muslim Commercial Bank Limited respondent No.

2. It is alleged that respondent No. 1 has failed to perform his part of the contract. The petitioner invoked clause 3(c) of the agreement and unexecuted work was taken out of the hands of respondent No. I on the 5th July 1971. Respondent No. 1 requested for further opportunity and the petitioner suspended action for the recovery of amount under the bank guarantee. Respondent No. 1 further defaulted in the performance of contract. On the 6th March 1972, the unexecuted work was taken out of the hands of the respondent No. 1 and the petitioner started action under the bank guarantee of respondent No.

2. Respondent No. 1 filed Civil Suit No. 150 of 1972 against the petitioner in the Court of Administrative Civil Judge, Rawalpindi for a declaration and injunction. In that suit, an application was filed under Order XXXIX, rules 1 and 2, C. P. C. which was dismissed on the 19th May 1972 and it was held that respondent No. 1 had no prima facie case. Respondent No. I challenged this order in F. A. O. No. 79 of 1972. This appeal was admitted on the 22nd May 1972 and an order was issued by a learned Single Judge of the Lahore High Court directing the petitioner not to enforce the bank guarantee beyond Rs. 6 lacs. It is alleged by the petitioner that respondent No. 1 having failed to obtain full satisfaction of their grievance in the Lahore High Court, filed Civil Suit No. 181 of 1972 in the High Court of Sind & Baluchistan, Karachi. This suit was filed against the Muslim Commercial Bank Ltd., restraining it from paying any amount under the guarantee. Thereupon, respondent No. 2 filed a civil suit in the Court of Civil Judge, Rawalpindi that the petitioner be restrained from taking any proceedings for taking any amount under the bank‑guarantee on the ground that in Civil Suit No. 181 of 1972, the High Court of Sind & Baluchistan, Karachi, had issued a temporary injunction on the 7th June 1972, restraining the Bank from making any payment to the petitioner to the extent of Rs.9,41,202.93. This led the petitioner to approach the High Court of Sind & Baluchistan, Karachi, for being impleaded as a party. This prayer was granted. The petitioner has filed a written statement in which the jurisdiction of the High Court of Sind & Baluchistan has been challenged. The petitioner requests that the Civil Suit No. 181 of 1972, pending in the High Court of Sind & Baluchistan, Karachi, be transferred to Lahore, under Article 9 of President's Order No. 8 of 1970. After hearing the learned counsel for the petitioner, we are satisfied that this is not a fit case for transfer from High Court of Sind & Baluchistan, Karachi to Lahore High Court. The question whether the Karachi Court has jurisdiction in the matter can be agitated there and if an adverse decision is given, it is open to the petitioner to come to this Court. Subject to this remark, the petition is dismissed. Petition dismissed.