1994SCMR1758 (PLP)

NASIM HASAN SHAH, CJ. ‑‑‑This is a petition for leave to appeal against the judgment of the Lahore High Court, Multan Bench, passed in Writ Petition No. 679 of 1992 dated 6‑5‑1992. .

2. Respondent No. 1 issued a letter to the petitioner/company on 3‑11 -1991 in the following terms:‑ "M/s. Calicon (Pvt) Ltd.; c/o Mr. Asad Waheed Khan B‑6, Street No. 8‑B, K.DA, Scheme No. 1, Karachi: SUBJECT: SALE OF 5,013,000 SHARES OF.D.G. KHAN CEMENT. Dear Sirs, We refer to your bid dated 17‑10‑1991 and are pleased to inform you that the Government of Pakistan has declared you as the successful bidder for acquisition of 5,013,000 shares of D.G. Khan Cement at a price of Rs.359 per share' of a face value of Rs.100 each (Total Rs.1,799,667,000). (2). In accordance with the conditions of sale, you are hereby requested to deposit 26% of the value of the bid less the earnest money of Rs.l million through a bank draft in favour of the Privatisation Commission payable at Islamabad. Failure to deposit the sum as requested within thirty days of the date of this letter will result in rejection of your bid and the forfeiture of the earnest money. (3). The balance payment i.e. 14% of the value of bid is required to be paid at the time of signing of the agreement. Upon payment of the sum equal to 40% of the bid value and execution of the agreement and upon provision of an acceptable bank guarantee for the balance of 60% of the bid value, the share will be transferred to you as per procedure. (4). The management will be handed over to you as per procedure subject to submission of an acceptable bank guarantee in respect of loans, if any due to S.C.C./Government."

3. The petitioner/company instead of furnishing the security of 26% as contained in the offer of 3‑11‑1991 asked the Commission to remove the Managing Director of D.G. Khan Cement Company Ltd. (respondent No. 4) on the ground that he had transferred Rs.8,35,50,000 as dividends of State Cement Corporation of Pakistan. This according to the petitioner was quite contrary to the letter and spirit of letter of intent. Since the petitioner had purchased the share of the said company as ad ongoing concern on "as is and where is basis". It was submitted that the Managing Director was making an attempt to diminish the assets of respondent No.

4. The case further is, that instead of attending to this complaint, the Commission sent a memorandum whereby the offer of the petitioner was rejected and the deposit amount of Rs.l, million was forfeited. This amount was deposited as earnest money. Furthermore, the bid of the second tenderer was accepted. It may be mentioned that even the offer of the second‑bidder i.e. the Pak Land Cement was also subsequently rejected on account of default of payment of 26% of the offered amount within the prescribed period and ultimately the concern was given to respondent No. 6 on the said respondent raising his offer to that originally made by the petitioner/company. The petitioner challenged the action of respondents on the ground of unfairness as also on other points. In a detailed and exhaustive judgment the High Court has dealt with all the points raised by the petitioner and dismissed the writ petition. Hence this petition for leave to appeal.

4. We have heard Mr. K.MA. Samdani, Advocate for the petitioner but we do not consider it necessary to go into all the questions agitated before the High Court because we are fully satisfied that the petitioner's writ petition stands rightly rejected.

5. As pointed out by the High Court that the letter of intent was issued to the petitioner whereunder he was required to deposit 26% of his offer within 30 days of the communication of letter of intent. Instead of complying with the terms of acceptance of offer, he started raising all sorts of questions with respect to the terms of agreement which had not even been signed. In these circumstances the Federal Government rejected his offer and directed the Commission to start negotiations with the second highest tenderer by offering him the sale of the concern if he was prepared to purchase it on the price offered by the petitioner. This course was strictly in accordance with the commercial practice and the approved procedure. Accordingly we do not agree that the petitioner has been dealt with either with unfairness or with arbitrariness. The view of the High Court that the petitioner had no right which could be enforced through constitutional jurisdiction, in the circumstances of the case, is correct and requires no interference. 5‑A. The result is that there is no force in the petition which fails and is dismissed hereby. A.A./C‑133/S Leave refused.