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Hubco, Wapda cases hearing adjourned to Monday

MEHMUD AHMED

ISLAMABAD: The five-judge special bench of Supreme Court formed to hear the causes of litigations between the Hub Power Company (Hubco) and the Water and Power Development Authority (Wapda) heard for two hours the history of independent power producer's vows here on Friday and then adjourned to take up the case on Monday.

The judges, senior-most after the Chief Justice Irshad Hassan Khan, are holding day-to-day hearings since Tuesday last to avoid delay in adjudication of a case that is, according to both parties, causing them losses of billions of rupees.

The IPP says it is not receiving full payments to meet its expenses of production, while the Wapda says the company is over-invoicing it as it had "fraudulently and through corrupt practices" revised the power purchase agreement in its favour.

Hubco lawyers have vehemently denied the charge, saying that the additional agreements revising the tariff were signed by representatives of the Authority, within the knowledge and backing of its chairman and federal government leadership.

Abdul Hafeez Pirzada who is leading a team of eight Pakistani and foreign lawyers for the IPP, recited the contents of 54-page judgement by Justice Shaiq Usmani of the Sindh High Court, which was reversed by a division bench in an intra-court appeal.

The judgement had upheld the right of Hubco to seek international arbitration, and Abdul Hafeez Pirzada says it was a very realistic opinion expressed by the Court. He quoted from case laws of the UK and the US preferring the questions of public policy to be adjudicated by arbitration.

He also recalled a judgement of the Sindh High Court, reported in the PLD 1999 (Karachi-25), which said that in world commerce, arbitration of disputes was provided in most contracts to avoid long and arduous litigation.

He also quoted the same judgement, holding that while courts were generally strict in enforcing the various terms of agreement, depending upon the principle of 'consent facit legem', they were prone to give latitude to parties where arbitration agreement was concerned when the question of 'forum conveniens' arose. However, he said that according to the same court, it was discretionary and not mandatory and depended upon the facts of each case.

Pirzada said while overturning the single bench's judgement, the division bench of the same court had gone beyond the request made by Wapda and granted it a relief it did not ask for.

Pirzada said he would elaborate on the points when he would resume his submissions on Monday.

Justice Jehangiri said the special bench would not meet on Tuesdays and Wednesday and would reassemble on Thursday when Pirzada is expected to conclude his arguments giving way to Fakhruddin G Ebrahim, senior counsel for the Authority.

As the things stand now, the case is expected to run through the next week also.