The Islamabad High Court has allowed appeal of M/s Cargill Holding filed against the court's earlier order of June 17, 2015 in a dispute arising out of the purchase of shares of Heavy Electrical Complex (HEC) between the Company and the Privatisation Commission.
Announcing its detail judgment in response to appeal of the Cargill Holding on December 19, Justice Noorul Haq N. Qureshi said that the facts, in brief, are that Cabinet Committee of Privatization advertised the sale of shares through public tender in HEC (A company owned by the Government of Pakistan).
The order said that Cargill Holding participated in the process and after short listing was the only bidder who submitted the earnest money for pre-bid meeting on March 4, 2015. On April 6, 2015 Cabinet Committee of Privatisation sent a letter of acceptance for the sale of 97 percent shares in Heavy Electrical Complex. The amount settled for the referred transaction was Rs 250,000,000.
The letter of acceptance issued to the appellant was subject to certain terms and conditions; on the alleged failure of the appellant to comply with the terms and conditions Privatisation Commission sought to revoke the arrangement. Cargill Holding filed the suit for specific performance of letter of acceptance, declaration, permanent and temporary injunction as well as rendition of accounts alongwith suit applications for interim relief were filed (CM.No 1&2/2015) which were dismissed vide the impugned order.
The counsel for the appellant (Cargill Holding), interalia, submitted that the applications for interim relief have been dismissed without seeking the reply of the defendants/respondents in the suit. It was further contended that the basis/consideration for dismissal of the application were erroneous and the impugned order is not tenable.
The counsel for Privatization Commission (respondent no 2), interalia, submitted that the written statement as well as reply to the application was duly filed, however, on examination of the file of the trial court it transpired that the same is not on record and when it was inquired from the learned counsel of respondent No 2 as to when reply and written statement was filed he responded on 29.09.2015 ie after the decision on the applications for interim relief. The counsel for respondent No 2 also submitted that no earnest money was tendered by the appellant inasmuch as the cheque for the same when it was presented for payment it was dishonoured.
It was further contended that the appellant did not comply with the terms and conditions of the letter of the acceptance; the interim relief cannot be granted to the appellant as the letter of acceptance is not specifically enforceable under the law. Admittedly, the applications for interim relief (C.M.No 1 & 2 of 2015) were decided without seeking reply from the defendant/respondent. The stance raised by the learned counsel for respondent No 2 shows that controversy between the parties pertains to compliance with the terms and conditions of the letter of acceptance. Moreover, the maintainability of suit for specific performance and injunction also needs to be examined in light of the reply / counter affidavit field by the respondents/defendants. "In view of above, instant appeal is allowed and the impugned order dated 17.06.2015 is set aside; consequently, applications for interim relief (C.M.No 1 & 2 of 2015) shall be deemed to be pending," the judgment ruled.