MESSRS NABI BAKHSHI& SONS vs PAKISTAN THROUGH THE SECRETARY, MINISTRY OF INDUSTRIES AND NATURAL RESOURCES (INDUSTRIES DIVISION), ISLAMABAD
This matter arises from a petition for special leave to appeal against the judgment of the High Court of Sind & Baluchistan, which dismissed appeals arising from an arbitration award regarding the cancellation of a government contract for the supply of helicopters. The core legal questions involved the limitation period for filing a petition for special leave to appeal after pursuing a certificate under the Civil Procedure Code, and whether damages for cancellation of foreign agencies could form the subject-matter of reference to arbitration and be sustained without supporting evidence. The Supreme Court held that the petition was barred by time as the time spent seeking a certificate to appeal was unnecessary, and the delay from December 1972 to January 1973 remained unexplained. Furthermore, the Court held on merits that there was no evidence supporting the claim for damages for cancellation of agencies, and such claims could not be the subject-matter of reference to the umpire. The petition was accordingly dismissed.
- Whether time taken in applying for a certificate to file an appeal to the Supreme Court under the Code of Civil Procedure can be excluded when computing the period of limitation for a petition for special leave to appeal?
- Can a claim for damages regarding the cancellation of foreign agencies be the subject-matter of reference to arbitration under a government supply contract?
- Whether an arbitration award granting damages without supporting evidence can be maintained?
- Section 108, Code of Civil Procedure 1908
- Section 109, Code of Civil Procedure 1908
- Section 110, Code of Civil Procedure 1908
ORDER
1. WAHEEDUDDIN AHMAD, J.-A Japanese Company Dawadaki Aircraft Co. Ltd., had a licence from Bell Helicopters Corporation of U. S. A. For manufacture of helicopters named as Kawasaki Bell Helicopters. Daiichi Hussan Kaisha Ltd. Were the distribu--tors of Kawasaki Aircraft Co. Ltd. It is alleged that they appointed the present petitioner as the sole agent for the sale of Kawasaki Bell Helicopters. The Ministry of Agriculture, Government of Pakistan, required some helicopters. The peti--tioner submitted its tender on the 18th of February 1957. On 22nd May 1958 the contract for the supply of two helicopters was placed with the petitioner. The contract price being Dollar 84,800 C & V, plus price of accessories and spare-parts, the total contract price comes to Dollar 1,27,996.12.
2. The ship--ment was to be made till the 30th December 1958. Dispute arose between the parties as to how the letter of credit should be reopened. Shortly thereafter, the petitioner's sole agency was cancelled by its principal by letter dated the 19th August 1958. The petitioner thought that it was the respondent which was responsible for it and asked for its explanation. It appears that the principal had made allegations in its letters dated the :8th July 1958 and 19th August 1958 against the petitioner. Certain correspondence passed between the parties and the con--tract was cancelled by the respondent on the 27th October 1958. The respondent cancelled the registration of the petitioner as Government Contractor by letter dated the 9th November 1958 and also black listed him. This also applied to the subsidiaries of the petitioner, a list of which was issued on the 15th October 1960 by the Department of Supply and Development. Petitioner's allegation is that it had the sole agency of some 236 principals abroad and they were also informed about it, and as a result, it suffered loss in business. The petitioner approached the Government and having failed to get any redress from the Government, [lie petitioner by letter dated the 15th July 1960 invoked clause 24 of the Contract, to refer the matter to the arbitration. Several arbitrators were appointed.
3. The matter ultimately came up before Col. S. M. Raza, who gave an award in favour of the petitioner as an umpire He awarded Rs. 70,193.00 against the respondent together with interest @ 7 -- % from 1st January 1959 up to the date of payment. He also awarded Rs. 4,44,85,460.00.
4. He also awarded Rs. 2,50,00,000.00. The respondent filed objec--tion against the said award and a learned Single Judge of the High Court modified the award and maintained it only to the extent of Rs. 70,139.00 with interest @ 7 --% from the date of the award and Rs. 10,000 for costs of arbitration proceedings. The portion of the award which related to the damages amounting to Rs.
5. 6,95,72,653.00 was struck off. The petitioner and the Government filed Letters Patent Appeals Nos.
6. 177/70 and 199/70 respectively. Both these appeals were heard by a Division Bench of the High Court of Sind & Baluchistan and by judgment dated the 1st June 1972, both the appeals were dismissed, except that the Government appeal was allowed in respect of the interest. The petitioner seek permission to file an appeal against the said order.
7. A preliminary objection has been raised on behalf of the Government that the petition is barred by time. According to the learned counsel for the respondent, the petition for special leave to appeal was filed on the 8th January 1973. It is submitted that the application for certified copy of the judgment was filed on the 1st June 1972 and the copy was ready on the 16th June 1972. According to the respondent, the petition should have been filed on or about the 16th August 1972.
8. The explanation of the petitioner is that he applied for certificate to file an appeal to the Supreme Court under sec--tions 108, 109 and 110 of C. P. C. On the 7th August 1972 which was rejected on the 29th November 1972. The copy of that order was applied on the 29th November 1972 and was ready on the 6th December 1972. The stamp was supplied on the 11th Decem--ber 1972 and the delivery was taken on that date. The petition was filed on the 8th January 1973.
9. We agree with the learned counsel for the respondent that the time taken in the application for certificate to file an appeal to the Supreme Court, was not necessary. Even if the time taken in these proceedings is condoned, there is no explanation why the petitioner failed to file the petition for special leave to appeal immediately after the 11th December 1972. The time from 11th December 1972 to 8th January 1973 cannot be condoned. We would, therefore, hold that the petition is barred by time.
10. Even on merits' we agree with the learned Single Judge that there is no evidence in support of the claim of the petitioner regarding the damages for cancellation of the Agencies. We also agree with the Letters Patent Bench that this claim could not be the subject-matter of the reference to the umpire.
11. In these circumstances, the petition is dismissed.