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C.P. No. 347 of 2013, decided on 23rdMay, 2014.

----Art. 199---Constitutional petition---Factual controversy---Bank guarantee, encashment of---Petitioner who was contractor of respondent authorities had furnished unconditional irrevocable bank guarantee in favour of authorities---Plea raised by petitioner was that authorities could not ask bank to encash bank guarantee in question without first referring it to petitioner---Validity---Bank guarantee in question was unconditional and irrevocable and bank had undertaken to pay immediately on demand upon advising them the reason for demand, without objection and without reference to petitioner, any amount up to the extent mentioned in the guarantee---Decision of authorities was final and binding---Unconditional and irrevocable bank guarantee could not be interfered with except in case of fraud and or in case of question of apprehension of irrevocable injustice had been made out---Liability of a person pursuant to a document / contract and factual controversies requiring evidence could not be determined in exercise of extra ordinary Constitutional jurisdiction of High Court---In order to justify granting of extraordinary relief, absence of adequate alternate remedy in law should have clearly appeared---Petition was dismissed in circumstances. Naeem Shahid for Petitioner. Ainuddin Khan, D.A.-G. Altaf Hussain Khoso for Chief Controller of Purchase, Pakistan Railways, Headquarters Office, Lahore. Khalid Mahmood Siddiqui for Respondent No.2 (Bank).

Petitioner through these proceedings seeks following prayers:-- "(1) Declaration to the effect that the action of the respondent No.1 in calling bank Guarantee dated 21-2-2005 is illegal, unlawful and of no legal effect. (2) To declare that the actions of the respondent No. I of causing undue financial hardship to the Petitioner is illegal and of no legal effect. (3) That the actions of the respondent No.1 in calling bank Guarantee dated 21-2-2005 is ultra wires to the Constitutional rights guaranteed to the petitioner vide the Constitution of the Islamic Republic of Pakistan. (4) Permanently restrained the Respondent No.1 from encashing guarantee dated 21-2-2005 currently issued with the respondent No.2 till appropriate orders are passed by this Hon"ble Court. (5) Any other prayer may be raised as deem fit and proper after obtaining leave of this Hon"ble Court. (6) Grant cost of this Petition." 2. Brief facts of the case are that petitioner is a registered approved contractor of Pakistan Railways, respondent No.1. As per procedure of respondent No.1, the registered contractors are required to deposit a security while conducting business whereas relationship between the petitioner and respondent is governed by the Standard Tender Conditions. It is higher averred that petitioner used to facilitate the international goods suppliers, who sought tenders for supply of various goods to respondent No.l. Petitioner on 21-2-2005 through respondent No.2 furnished a bank guarantee upto the extent of Rs.1,000,000 (Rupees One Million Only) while the validity of said bank guarantee has been extended every year. Perusal of contents of memo. of petition reveal that the petitioner also facilitated one of such supplier Messrs Webtec Corporation, who had deposited a Bank Guarantee bearing No.C/330/02/0382 dated 28-12-2002 for Rs. 1,000,000 with respondent No.1. 3. The contents of petition also show that the respondent No.1 had issued letters dated 6-8-2012 to the petitioner to deposit balance amount Rs.133,274 and to Messrs Webtec Corporation to deposit balance amount of Rs.838,831 though petitioner, being facilitator, has no nexus with the acts done by Messrs Webtec Corporation. Additionally, vide letter dated 4-1-2007 of Chief Controller of Purchase, copy send to petitioner, the District Controller of Stores. Pakistan Railways, Karachi Cantonment. was advised to withdraw the demurrage charges or Rs. 73,734, therefore, according to petitioner, the statement of details of recovery/letter dated 6-8-2012 is erroneous. However it is alleged that respondent No.1 is unjustly directing the respondent No.2 to release the bank guarantee of the petitioner to satisfy the outstanding amounts of Messrs Webtec Corporation, whose independent guarantee is still valid. Hence, this petition has been flied. 4. It is contended by the learned counsel for the petitioner that petitioner, a registered contractor or Pakistan Railways, has only facilitated Messrs Webtec Corporation; that respondent No.1 is illegally trying to settle the losses with Messrs Webtec Corporation by encashing bank guarantee furnished by hint though petitioner has no nexus with any claim brought against Messrs Webtec Corporation; and that such action of the respondent No.1 is in sheer transgression of the fundamental rights guaranteed to the petitioner under the Constitution of Islamic Republic of Pakistan, 1973. 5. On the other hand, learned counsel for respondent No.1 submitted that factual controversies and ascertainment of amount recoverable against the petitioner cannot he ascertained in Constitution Petition. He further contended that respondent No.1 has no direct contact with M"s Webtec Corporation and as petitioner on behalf of Messrs Webtec Corporation have taken business in millions from Pakistan Railways, in case of short supply and or replacement of defective goods the petitioner is liable under the terms of Purchase Order. He further submitted that outstanding against Messrs Webtec Corporation has been adjusted by encashing bank guarantee dated 28-12-2013. The learned DAG and Mr. Khalid Mahmood Siddiqui, Advocate for respondent No.2 Bank adopted the arguments advanced by learned counsel for respondent No.l. 6. Having heard the learned counsel for the parties and DAG, scanned the record. On 15-2-2005 petitioner through respondent No.2 bank furnished a bank guarantee upto the extent of Rs. 1,000,000 the validity of which was extended till February, 2013. Plain reading of copy of said bank guarantee, available at page 87 of the tile, reveals that the same is unconditional and irrevocable and the respondent No.2 has undertaken to pay immediately on demand upon advising them the reason for the demand, without of objection and without reference to the Contractor, any amount upto the extent of Rs.1,000,000. The perusal of bank guarantee further shows that the decision of the Chief Controller of Purchase and Procurement, Pakistan Railways. Lahore, Pakistan shall remain final and binding. Moreover, it is settled law that an unconditional and irrevocable bank guarantee cannot be interfered with except in case of fraud and or in case of question of apprehension of irrevocable injustice has been made out. 7. The learned counsel for petitioner contended that respondent No.1 illegally directing the bank to release the bank guarantee of the petitioner to satisfy the outstanding amount of Messrs Webtee Corporation whose independent guarantee is still valid. On the other hand, the respondent No.1 in paragraph 13 of its comments has categorically stated that outstanding recovery against Messrs Webtec Corporation as per detail enclosed against foreign principal has been adjusted by encashing the bank guarantee dated 28-12-2011 Though the parawise comments were filed on 18-3-2014 but no affidavit-in-rejoinder to the same was filed. 8. Apart from above, petitioner claims that statement of detail of recovery/letter dated 6-8-2012 through winch the petitioner was requested to deposit the balance amount of Rs.133,274 with the respondent No.1 is erroneous in wake of its correspondence dated 4-1-2007 whereby an amount of Rs.73,734 was withdraw. It is settled Law that liability of a person pursuant to a document/contract and factual controversies requiring evidence cannot be determined in exercise of extraordinary Constitutional Jurisdiction of this Court. Moreover, in order to justify the granting of an extraordinary relief, absence of an adequate alternate remedy in law must clearly appear. 9. For the foregoing reasons, the interim order passed on 3-9-2013 is recalled and petition along with listed application is dismissed, leaving the petitioner to resort to other remedies available under the law, if so advised. MH/I-21/Sindh Petition dismissed.

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