Messrs SEZAI TURKES FEYZI AKKAYA CONSTRUCTION COMPANY (STFA) vs Messrs EKON YAPI ONARIM TICARET VE SANAYI LTD and 2 others

ORDER

' SARDAR MUHAMMAD ASLAM, J.---Leave is sought from the judgment dated 9-5-2008, passed by the Islamabad High Court, Islamabad, dismissing the petitioner's Civil Revision No,244 of 2007.

2. Necessary facts, in short, are that petitioner and respondents are Turkish Company incorporated under the laws of Turkey, engaged in construction work. Both have its Head Office in, Istanbul. An agreement was executed between the petitioner and respondent No,1, on 17-1-2005, whereby construction work was awarded to respondent No,1. Clause 25 of the agreement relates to dispute resolution, providing that dispute arising out of this contract will be resolved in Istanbul Courts and its execution department.

3. Respondent No,1, on account of dispute, instituted a suit against the petitioner for recovery of Rs,1,22,21,333 in Civil Court at, Islamabad. An application for interim relief seeking attachment and restraint order was also filed, which was dismissed on 20-1-2007. Respondent No,1 assailed the order before Lahore High Court, Rawalpindi Bench, Rawalpindi, in FAO No,20 of 2007, which was partly allowed vide judgment dated 8-3-2007. None challenged the said order, further.

4 Petitioner-defendant filed an application under Order VII, Rule 11, C.P.C. For rejection of plaint, Reply was filed by respondent-plaintiff. Petition was dismissed on 24-4-2007. Aggrieved of the order, C.R. No,244 of 2007, was filed before the Lahore High Court, Rawalpindi Bench, Rawalpindi. On establishment of Islamabad High Court, it was transferred to it and came up for hearing before a learned Judge-in-Chamber, who dismissed the same on 9-5-2008, impugned herein.

5. Learned counsel for the petitioner contends that clause 25 of the agreement debars resolution of disputes by Courts, in Pakistan by placing reliance on (i) Messrs Brady & C. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd (1981 SCMR 494); (ii) WAPDA and 2 others v. Mian Ghulam Bari (PLD 1991 Supreme Court 780) and (iii) M/s Rupali Polyester Ltd. v. Dr. Nael G. Bunni and others (PLD 1994 Lahore 525).

6. Mr. Farooq Adam Khan, learned Advocate Supreme Court on behalf of respondent No,1, in reply submitted that the ouster clause in the agreement will not preclude the Courts in Pakistan to adjudicate the matter in view of section 20 of the C.P.C. Reliance has been placed on M. A.

Chowdhury v. MITSUI O.S.K. Lines Ltd. And 3 others (PLD 1970 Supreme Court 373).

7. After taking into consideration the submissions of the learned counsel for the parties and perusal of the case law, leave is granted, inter alia, to consider:-

(i) whether the agreement executed between the parties has the effect of ousting the jurisdiction of the courts in Pakistan;

(ii) whether the petitioner-defendant maintains a Sub Officer at, Islamabad; and

(iii) whether the cause of action has partly accrued at, Islamabad.