1995 PLP 912 (MLD)

(a) The petitioner had not shown any negligence and in fact the respondents had violated clauses 47 and 51 in not making the payment to the petitioner‑contractor in time; and (b) The petitioner has not violated any provision of the agreement. (iii) That the petitioner made an application to the Superintending Engineer for invoking the arbitration clause of the General Conditions of Contract but the same was turned down for reasons not sustainable in law. (iv) That since Superintending Engineer's refusal to invoke arbitration clause does not provide any remedy in the terms of the contract, the writ petition is maintainable. He relied on M.H. Abidi v. State Life Insurance Corporation (1990 MLD 563) to contend that the respondents are bound to make the payment in question and the relief being claimed is enforceable in writ jurisdiction.

5. The learned Assistant Advocate‑General, appearing on behalf of the respondents, has, on the other hand, raised a preliminary objection that the writ petition is not maintainable as it arises out of the contractual obligations. He further submitted that the petitioner's bill was always paid promptly which is manifest from the fact that he continued doing work and completed a major portion of the same. The petitioner admits having received Rs.48,00,000 (Rupees forty‑eight lacs only) uptil now which further strengthens. respondents' case that the payments were made in time and the delay in completing the work was entirely on account of petitioner's fault. In any case, according to him the question whether delay in completion of the work was on account of delayed payment by the respondents would really call for factual inquiry which exercise cannot be undertaken in the extraordinary writ jurisdiction of this Court.

6. I have heard the learned counsel for the parties and have also gone through the comments submitted by the respondents.

7. It is admitted by the petitioner that the petitioner firm had received a total amount of Rs.48,00,000 (Rupees forty‑eight lacs only) up to the rescission of the contract which is impugned in this petition. It appears that the petitioner stopped the work pursuant to which he was given notices which are mentioned in para. 2 above and are appended with the petition. The first notice sent by the Executive Engineer, Sadiqia Division, Bahawalnagar is dated 21‑10‑1991 which is to the following effect:‑‑ "In this connection it is stated that you were directed to resume and complete the work within fortnight. But you have failed to abide by the directions of the Sub‑Divisional Officer incharge of the work. You are, therefore, finally directed to start and complete the work within 15 days failing which the action shall be taken under clause 3(C) of the Contract Agreement. The remaining work will be got completed from another contractor on your risk and cost. This State of affairs shall also be brought to the notice of the Secretary to Government of Punjab, Irrigation and Power Department, Lahore for cancellation of your enlistment/contractorship in Irrigation Department:" It seems that the petitioner did not resume the work whereupon another notice was given to them on 23‑7‑1992. On 17‑10‑1993 yet another notice was given wherein the petitioner was told that as per report of the Sub Divisional Officer "progress of your work is very slow. The Sub‑Divisional Officer has also intimated that work is stopped at site. In view of above you are requested to start/complete the work within shortest period in the best public interest. In case of failure, your work will be rescinded and got completed from any other agency at the risk and cost of your firm as per clause of your agreement". Further, notice was given to the petitioner firm on 1‑11‑1993 and the contents and the message conveyed was the same as in the earlier notices. It further appears that instead of resuming the work, the petitioner asked for enhancement of rates and he attempted to invoke the arbitration clause. The Executive Engineer, Sadiqia Division, Bahawalnagar vide his letter/notice, dated 24‑11‑1993 once again reminded the petitioner of his obligation under the contract and conveyed as under:‑‑ "It is further pointed out that your view point regarding close of agreement or enhancement of rates without completion of cost of the contract at this belated stage is not correct. If so, it should have been done just after the expiry of stipulated period of four months. In view of above you are again requested to restart the work within fourteen days from the issue of this notice, otherwise undersigned will be constrained to take action under clause 61(a) of your contract agreement to complete the work at an early date in the best interest of public." Notwithstanding the above correspondence and the notices given, the petitioner firm did not resume the work and respondent No.3 rescinded the contract in terms of clause 60 of the agreement vide the impugned letter, dated 13‑6‑1994. It would be pertinent to refer to clause 60 of the agreement which is as follows:‑‑ "In any case in which under any clause or clauses of this contract, that contractor shall have rendered himself liable to pay compensation amounting to whole of the security deposit or in the opinion of the engineer‑in‑charge has abandoned the contract, or is not executing the works in accordance with the contract or is persistently or flagrantly neglecting to carry out his obligation under the contract, or if the contractor employs any employee of the Government in defence to provisions of clause 32 hereof, the engineer‑in‑charge on behalf of the Government, may, after giving fourteen days' notice in writing to the contractor, rescind the contract (of which resission notice in writing to the contractor under the hand of the engineer‑in‑charge shall be conclusive evidence and in which case the security deposit of the contractor shall stand forfeited, and be absolutely at the disposal of Government. And in case, the contract shall be rescinded under the provisions aforesaid:‑ (i) the contractor shall have no claim to compensation for any loss sustained by him by reasons of his having purchased or procured any materials, or entered into any engagement, of made any advances on account of or with a view to the execution of the works or the performance of the contract. (ii) the contractor shall not be entitled to recover, or be paid any sum for any work actually performed under this contract, unless and until the engineer‑in‑charge will have certified in writing the performance of such work and the value payable in respect thereof and he shall only be entitled to be paid the value so certified, after deducting therefrom the amount of aforesaid compensation and other charges duly ascertained and certified by the engineer‑in‑charge to be payable by the contractor. But if such sum payable by the contractor for any losses; compensation or any other charge shall exceed the sum for any work actually performed under the contract and certified by the engineer‑in‑charge, the amount of such excess shall be deemed a debit due by the contractor to the Government and shall be recovered accordingly."

8. The petitioner's contention is that the work was delayed on account of stoppage of funds but he does not deny that he had completed a major portion of the‑work and had received Rs.48,00,000 (Rupees forty‑eight lacs only) in lieu thereof and only the last bill amounting to Rs.1,55,637 remained outstanding against the respondents. Prima facie, the bona fides of the respondents is manifest from the aforementioned payment of Rs.48,00,000 as also from the notices and reminders given to the petitioner for resumption of work.

9. From the arguments addressed before this Court as also the prayer being made in this petition, it is clear that the dispute between the parties basically relates to a transaction in respect of a contract for desilting lining of Fateh Distributory. The petitioner has alleged that he has faithfully performed his part of contract and the delay, if any, was attributable to the stoppage of funds by the respondents and that the rescission of the contract is illegal and that "the respondent No.2 be directed to invoke the arbitration clause for the settlement of the dispute immediately".

10. The petitioner is basically attempting to enforce the obligation arising out of a contract between the parties. Reference to a judgment of the Karachi High Court M.H. Abidi v. State Life Insurance Corporation (1990 MLD 563) is of no help to the petitioner. In that case it was held that the contractual rights can be enforced through Constitutional petition where‑ rights arise out of a Statute or rules framed thereunder. The petitioner in that case was an Insurance agent and prayed for payment of commission on the issuance policies (for the staff and officers of Pakistan Steel Mills Corporation) in which he was entitled under the Insurance Act, 1958 and Insurance Rules, 1958. Such money or claim it was observed could be pursued in the Constitutional jurisdiction. However, in the instant case, the petitioner has challenged rescission of contract awarded to him and the non‑payment of the last bill on the ground that these are violative of the terms of the contract/agreement. He has not referred .to any statute or rules framed thereunder which is said to have been contravened.

11. The law is settled that writ jurisdiction cannot be invoked to seek enforcement of a contract. In a Division Bench judgment of the Karachi High Court reported in Hafiz Misbahul Hasan v. The Director‑General of Supplies 1984 CLC 1129, the petitioner had challenged cancellation of the contract and has sought specific performance of the contract in question. In this judgment it was held:‑‑ ‑‑‑‑Art. 9‑‑‑Constitutional jurisdiction‑‑‑Matters arising out of breach of contract or failure to honour obligations arising out of agreement, held, cannot be decided in exercise of writ jurisdiction‑‑‑Petitioner seeking relief to enforce obligations arising out of contract between parties‑ ‑‑Interference declined." In a judgment of this Court reported in Muhammad Jamil v. Pakistan Railway Board and others 1994 CLC 848 it was held:‑‑ . ‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Exercise of‑‑‑Principle of locus poenitentiae‑‑‑Applicability‑‑‑High Court in exercise of its Constitutional jurisdiction, would not interfere if matter involved was question arising out of‑contractual obligation‑‑‑Remedy of aggrieved person in case involving contractual obligation lay in filing civil suit for redress of his grievance‑‑‑Applicability of principle of locus poenitentiae or whether contract was illegally cancelled, were questions which could be adjudicated upon by Courts of plenary jurisdiction." The foregoing dictum of this Court is based on a well‑recognized principle laid down by the Honourable Supreme Court in several judgments. In a case reported in M. Muzaffaruddin Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another 1968 SCMR 1136, it was observed:‑‑ "Constitution of Pakistan (1962), Art. 98‑‑‑Contract, specific performance of‑‑‑Writ not proper remedy." This view was further affirmed in Shamshad Ali Khan v. Commissioner, Lahore and others 1969 SCMR 122.

12. In view of what has been discussed above, the petitioner has got an alternate remedy of filing a suit. I see no merit in this petition which is hereby dismissed. H.B.T./N‑306/L Petition dismissed.