PETROSIN CORPORATION (PVT.) LTD. and others vs MOL PAKISTAN OIL AND GAS CO. and others

ORDER

' ABDUL HAMEED DOGAR, C J.---This petition for leave to appeal is directed against order dated 23- 1-2008 passed by learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, Rawalpindi whereby Civil Revision No,530 of 2007 was dismissed.

2. Briefly stated, facts giving rise to the filing of instant petition are that Government of Pakistan granted license to a consortium consisting of five companies, namely, M/s. Oil and Gas Development Company (OGDC), Pakistan Oil Fields Limited (POL), Pakistan Petroleum Limited (PPL), Government Holding (Pvt.) Ltd. (GHL) and MOL Pakistan Oil and Gas Company for petroleum exploration in TAL Block in N.-W.F.P. They entered into a joint venture agreement and discovered petroleum at Manzalai. In order to set up a Central Processing Facility for gathering system for the Manzalai Gas Field they invited different entities for pre-qualification of engineering, procurement, construction and commissioning contractors through press publication dated 30-4-2007. The petitioners through electronic mail dated 2-5-2007 participated in the pre-qualification and tendering process alleging that they had vast experience in Oil and Gas sector within Pakistan and outside the country. It was also alleged that petitioners submitted their pre- qualification documents along with bank draft of U.S. 1000$ for processing fee. The documents were acknowledged by the respondents but were not responded till 25-7-2007 when it was informed that petitioners had not qualified for EPCC stage of the Manzalai Project due to non-compliance with the prescribed criteria for pre-qualification. Feeling aggrieved the petitioners filed a suit for declaration and permanent injunction along with an application under Order XXXIX, Rules 1 and 2, C.P.C. For grant of temporary injunction. It was alleged in the suit that the petitioners were deprived of their right without providing an opportunity of hearing. It was also alleged that the process for awarding the contract was not transparent, rather was the result of favoritism. The suit was resisted by respondents by filing written statements raising number of preliminary objections. The learned Civil Judge seized of the matter after hearing the parties dismissed the application for grant of temporary injunction on 30-10-2007. This order was assailed before learned Additional District Judge, Islamabad but was upheld vide order dated 17-11-2007. The petitioners then filed Civil Revision No,530 of 2007 before Lahore High Court, Rawalpindi Bench which too was dismissed vide impugned judgment.

3. We have heard Mr.Nazir Ahmed Bhutta, learned counsel for the petitioners, Mr. Makhdoom Ali Khan, learned Senior Advocate Supreme Court for respondents Nos. 1 to 5 and Raja M. Bashir, learned Advocate Supreme Court for respondent No,6 at length and have gone through the record and proceedings of the case in minute particulars.

4. It is vehemently contended by learned counsel for the petitioners that learned High Court has not appreciated the facts and circumstances of the case in its true perspective which resulted in miscarriage of justice. He contended that the letter dated 25-7-2007 was sketchy/ unreasoned and issued without providing an opportunity of hearing to the petitioners was against the principles of natural justice. According to him, petitioners had much more experience as compared to other competitors and their rates had been much low as compared to market. He further contended that the process of awarding contract by the joint venture excluding petitioners was not transparent and malice had been shown by the members of the consortium by awarding contract to some picked person at the cost of public exchequer. He prayed that the process be declared as illegal, void, without authority or jurisdiction and based on mala fide.

5. On the other hand, Mr. Makhdoom Ali Khan, learned Senior Advocate Supreme Court for respondent Nos. 1-5 and Raja Muhammad Bashir, learned Senior Advocate Supreme Court for respondent No,6 controverted above contentions and supported the impugned order. It is contended that petitioners did not fulfil the pre-requisites for pre-qualification as they were not holders of certificate 'ISO-9000' at the time of submission of pre-qualification documents.

According to them, since petitioners had failed to comply with the conditions laid down for pre- qualification, as such they were rightly not considered in the tendering process.

6. Admittedly, petitioners' certificate of quality management. System 'ISO-9000' was valid for one year and had lapsed at the time of submission of their pre-qualification documents. They got their certificate renewed after two months of the date fixed for submission of pre-qualification documents. In absence of any valid renewed certificate, the documents were rightly rejected by the respondents. The stance of petitioners that they were not provided opportunity of hearing has no merit as the letter dated 25-7-2007 is self-contained and gives reasons for regret on behalf of the consortium. It is pointed out that after dismissal of petitioners' appeal, the tendering process for Manzalai project was completed and the contract was awarded to respondent No,6. M/s. Presson Descon International Limited which was reduced in writing on 17-11-2007 and is now under performance. Petitioners have not claimed any relief against respondent No,6 who had pent huge amount during the course of performance of the contract including arrangement of the bank guarantee of 1.7 million, insurance of 7.00 millions, incidental expenditure at the site worth rupees 300 million besides incurring expenses of the employees running into 2.5 million daily. Any injunction to bring back everything to standstill will be unlawful and prejudicial to his vested rights accrued under the contract lawfully executed, which is now in the process of implementation.

7. The petitioners, who were ousted from the process of pre-qualification on the basis of lawful grounds would not suffer any irreparable loss as compared to respondent No,6 in whose favour legitimate rights have been created under the contract. Similarly, balance of convenience also leans in favour of respondent No,6. Injunction can only be granted restraining defendants from committing breach of some concluded contract or other injury of any kind but there was no contract in favour petitioners, as such the question of breach of contract did not arise. Moreover, the concurrent findings of the courts below do not suffer from any illegality or infirmity warranting interference by this Court. Learned counsel has failed to point out that the decision taken by respondent lacked transparency or was tainted with mala fide or was unfair or was based on favoritism.

8. In view of above no ground for interference in the impugned order is made out which is maintained.

9. These are the reasons of our short order dated 11-2-2008, whereby the petition was dismissed and leave to appeal was refused.