IN THE COURT OF __________________________ CIVIL JUDGE RAWALPINDI

Civil Suit No. 89/2011

Re M/s Mian Associates Versus Islamic Republic of Pakistan & Others

APPLICATION ON BEHALF OF DEFENDANTS UNDER SECTION 34 OF THE ARBITRATION ACT, 1940FOR STAY OF SUIT

Respectfully Sheweth, 1. That the title Suit for declaration and recovery on account of compensation and damages was filed by the Plaintiff against the Defendants. The next date of hearing in the Suit is 20-04-2013. 2. That as is evident from the contents of the Plaint, the Plaintiff is statedly aggrieved in respect of Contract CA No. DGSW/2316/2007 dated 19-012007 (the Contract) entered into between the Plaintiff and the Defendant No. 1. 3. That the relief is mainly based on allegations of delays/extension of time caused by the Defendants in the performance of the Contract in result whereof the Plaintiff suffered losses with regard to overhead expenses, loss

of business opportunities and reputation. In addition to aforesaid, minor relief is claimed in respect of works executed and misappropriation of temporary facilities at the site. 4. That regarding the complaint of delays/extension of time, the subject matter of the Suit is covered by arbitration clauses incorporated in the Contract. In this regard reference may be made to clause 1, sub-clause (a) under the heading General1 of the PARTICULAR SPECIFICATIONS AND CONDITIONS of the Contract and clause 12 sub-clause (f) under the heading Works Programme2 read with clause 1 sub-clause (a) under the heading Definitions3 and clause 4 sub-clause (a) under the heading Contract Documents4 of the GENERAL CONDITIONS OF CONTRACT. For the convenience of this honorable Court, the provisions afore-referred are reproduced in the footnotes below. 5. That it is submitted that the matter of deviations/variations (Clause 10 of the GENERAL CONDITIONS OF CONTRACT), Extension of time in case of variations/deviations/delays (Clause 12 of the GENERAL CONDITIONS OF CONTRACT) and valuation and compensation for

variations/deviations/delays (clause 59 of the GENERAL CONDITIONS OF CONTRACT) was covered by the Contract. In case of dispute, the provisions

CLAUSE 1 (a) of the GENERAL CONDITIONS OF CONTRACT: The Contract means the documents forming the tender and acceptance thereof together with the documents referred to therein including these conditions, all applicable Schedules and/or General Summary attached to the form of tender, the MES Schedule, the Specifications and the Drawings, and all these documents, as applicable taken together, shall be deemed to form one Contract and shall be complementary to each other.
2 2

CLAUSE 1 (a) of the PARTICULAR SPECIFICATIONS AND CONDITIONS: The provisions given hereunder shall take precedence and decision of Accepting Officer shall be final in case of variance or any doubt in interpretation.
3

CLAUSE 12 (f) of the GENERAL CONDITIONS OF CONTRACT (Extension of Time for Completion): If the works are delayed by force majure of any exceptionally inclement weather or by reason of authorized extras or additions or deviations in the contract or by delay in delivery by the Government of the stores enumerated in Schedules B & C and the specificationssic..a fair and reasonable extension of time for completion as may decided by GE shall be made in respect thereof; (provided that) in case the extension of time is not acceptable to the contractor, the matter shall be referred to the CMES whose decision shall be final.
4

CLAUSE 4 (a) of the GENERAL CONDITIONS OF CONTRACT (Documents Mutually Explanatory): The several documents forming the contract are to be taken as mutually explanatory of one another and in case of ambiguities or discrepancies of the same, shall be explained by the Accepting Officer through Engineer in charge who shall issue appropriate instructions in writing.

referred to in Para 4 above provided for arbitration for the resolution of the dispute. 6. That the Plaintiff instead of referring the dispute (s) to arbitration as agreed, with mala fide intention filed the title Suit which is liable to be stayed pursuant to the provisions of section 34 of the Arbitration Act 1940 and the Plaintiff be directed to resort to arbitration as agreed in the Contract. 7. That the instant application has been filed bona fide as the defendants/applicants consider that mutual disputes should be resolved amicably as agreed between the parties. The Defendants/applicants have not taken any step in the Suit so as to disentitle them from relief under the provisions of section 34 as aforesaid.

In view of above submissions, it is respectfully prayed that the title Suit may very graciously be stayed and the Plaintiff be directed to take resort to arbitration pursuant to the provisions of the Contract and section 34 of the Arbitration Act.

(Defendants/Applicants)

Through

(Counsel)

IN THE COURT OF __________________________ CIVIL JUDGE RAWALPINDI

Civil Suit No. 89/2011

Re M/s Mian Associates Versus Islamic Republic of Pakistan & Others

APPLICATION FOR INTERIM RELIEF U/S ORDER 39 READ WITH SECTION 151 OF CPC AND ALL OTHER ENABLING PROVISIONS OF LAW

IN

APPLICATION ON BEHALF OF DEFENDANTS FOR STAY OF SUIT UNDER SECTION 34 ARBITRATION ACT, 1940

Respectfully Sheweth, 1. That the Defendants/Applicants have filed the accompanied application u/s 34 of the Arbitration Act 1940 for stay of the title Suit. 2. That as is evident from the contents of the Application made u/s 34 of the Arbitration Act 1940, the Applicants have a strong prima facie case. The balance of inconvenience is also in favor of the Applicants and Applicants will suffer irreparable loss if the instant application is not accepted and the

title Suit is not stayed till the decision of the application u/s 34 of the Arbitration Act 1940 for stay of the title Suit.

That in view of above submissions, it is most respectfully prayed that proceedings in the title Suit may very kindly be stayed till the final decision of the application u/s 34 of the Arbitration Act 1940 for stay of the title Suit.

(Defendants/Applicants)

Through

(Counsel)