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Civil Petition for Special Leave to Appeal No. K‑184 of 1974, decided on 10th March 1975.
(On appeal from the judgment of the Sind & Baluchistan High Court dated 31‑3‑1974 in L. P. A. No. 206 of 1961).
‑‑ Art. 185(3) ‑ High Court not giving any credit for security deposit furnished by petitioner at time of acceptance of tender admitted to be an omission due to such fact not being pointed out at appropriate time‑Amount. if in fact deposited in respect of contract, held, could be adjusted against decretal amount and entered as part satisfaction in execution proceedings‑No need, however, to grant leave to appeal in matter.
K. A. Ghani, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 10th March 1975.
‑This is a petition for special leave to appeal from the judgment of a Division Bench of the Sind & Baluchistan High Court in a Letters Patent Appeal.
The said appeal arose out of a suit filed by the respondent, Government of Pakistan, against the petitioner for the recovery of damages on account of a breach of a contract between the petitioner and the said Government through the Director of Works, Air Headquarters, for the construction of a wing at Maripur, Karachi.
The petitioner, it appears, had submitted a tender for a lump sum amount of Rs.3,77.210‑8‑0. This was accepted on the 8th February 1957 being the lowest tender but then a dispute arose relating to the percentage of increase above scheduled rates. The petitioner claimed that this increase was 150 % whereas the Government claims that the contract was on the basis that the increase would be only 50 %. As this dispute could not be resolved, the Government cancelled the contract in accordance with the terms governing the contract which reads as follows :‑
"Whenever the Accepting Officer exercises his authority to cancel the contract under this condition, he may complete the works by any means at the Contractor's risk and expense. The Contractor shall be entitled to receive payment for work performed, in the contract value thereof less the cost of completing the works in his default as certified by the G. E./E. E. and if the cost so certified exceeds the sum of money held by Government as otherwise due to the Contractor, the Accepting Officer may recover the deficit from the Contractor by other means."
In accordance with these terms, the Government called for fresh tenders and accepted the tender of one, Buildwell & Company for Rs.4,37,223. Government, accordingly, claimed the difference between the two tenders amounting to Rs.60,012.50.
The suit was decreed for the said amount with costs and interest of 6 per annum by a learned Judge of the said High Court. This decree has been confirmed in Letters Patent Appeal. The petitioner has come up for special leave to appeal and the learned counsel appearing in support of this petition presses only one point, namely, that in passing the decree, the High Court has not given any credit for the security deposit of Rs.7,500 which was furnished at the time of the acceptance of the tender.
It is admitted that this omission has been due to the counsel appearing in the case not pointing it out at the appropriate time.
If this amount is in fact deposited as security in respect of this contract then this can be adjusted against the decretal amount and entered as part satisfaction thereof in execution proceedings, but, there is no need to grant leave in this matter.
This petition is, accordingly, dismissed with the above observations.
Petition dismissed.
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