IN THE COURT OF SENIOR CIVIL JUDGE, KARACHI (WEST)

Civil Suit No. ___________/2023

Muhammad Yousuf Mundia S/o

Sole Propriter
Office D-6, South Avenue
S.I.T.E. Karachi.-------------------------------------------------------
Plaintiff

Versus
1. The Alternate Energy Development Board
Head Office: 2nd Floor, Overseas Pakistani Foundation,
Shahrah-e-Jumuriat, G-5/2, Islamabad and
Regional Office: H/No. 46/2, Street No. 31, DHA,
Phase-V, Karachi through its Chairman

2. The State Bank of Pakistan

I.I. Chundrigar Road Karachi,
through its Governor -------------------------------------
Defendants

SUIT FOR DECLARATION, CANCELLATION OF LETTER OF

INTENT FOR 50 MW WIND POWER GENERATION PROJECT NO.
B/3/16/2007-87 DOCUMENTS DATED 23.08.2008 AND
PERMANENT INJUNCTION.

The Plaintiff respectfully submits as under:-

1. That the Plaintiff is a well known in the business community

for his contribution in economic development of Pakistan. He
having realized of increasing price of the electricity and acute
shortage conceived the idea to install 50 MW wind energy
power plant at Keti Bundar, Garo wind corridor to provide
cheap green power to national grid in line his objective to fulfill
his responsibility in economic development. He had already
worked out to bring a foreign investment amounting to about
US $ 60 million plus in Pakistan through the said project. He
after completing his basic study established a business
concern by the name and style of MUNDIA ENERGY at D-6,
South Avenue, S.I.T.E. Karachi to implement and execute the
 50 MW wind power project at Keti Bundar for the people of
Sindh.
2. That the Defendant No. 1 is an autonomous body established
in Pakistan by the Federal Government under section 3 of the
Alternative Energy Development Board Act, 2010 for the
purpose of implementation of various polices, programmes and
projects in the field of alternative and renewable energy
technologies to produce cheap electric power for economic
development through local available resources motivating and
encouraging local investors who are interested to fulfill their
responsibility in economic development of Pakistan. The land
comprising exclusively Keti Bandar wind corridor is property of
provincial government which is leased to the Defendant No. 2
who in turn sub-leased to prospective investor wind energy
projects.

3. That the Defendant No. 2 is the State Bank of Pakistan (SBP)

incorporated under the State Bank of Pakistan Act, 1956, which
gives the Bank the authority to function as the central bank of the
country. The SBP Act mandates the Bank to regulate the monetary
system of Pakistan and to foster its growth in the best national
interest and in doing so SBP perform functions such as handling of
currency and credit management, foreign exchange operations and
export refinance. Primary functions including issue of notes,
regulation and supervision of the financial system, and conduct of
monetary policy, management of foreign exchange, etc., The
Defendant No.2 has mandate to regulate foreign exchange reserves
by way of approved policies to trade in foreign currency in case of
international trade.

4. The Plaintiff submitted a proposal to develop 50 MW at Keti Bandar,

Sindh in the year 2007 to the defendant No. 1. The defendant No. 1
accepted the offer and accepted the same by way of “Letter of Intent
(LOI)” bearing No. B/3/16/2007-87 dated 23.08.2007 having no
legal backing and ultra vires to the various enabling sections of the
Contract Act, 1872.
[Copy of the said LOI dated 23.08.2007 is annexed as”P/1”]

5. The defendant No.1 seduced, entrapped and influenced the

Plaintiff with malafide intention to cause wrongful loss him
 implemented their nefarious design by way of unlawful &
fraudulent the said conditional LOI against the law without
knowledge of the Plaintiff.

6. That in the absences of legal backing to the impugned LOI, at

best it can be tested if it qualifies the express provisions of the
Contract Act, 1872 to constitute a binding contract enforceable
through any court of law. The glaring misrepresentation and
fraud is spelled out from a cursory glance of the impugned LOI
document as under:-

6.1. Acceptance (LOI) not absolute and unqualified. In para

# 2, to complete project as per plan, the responsibility to
acquire the land has been put upon the Plaintiff without
identifying unique identification of bounds. In para # 3,
the condition of bank guarantee in foreign currency has
been imposed upon the Plaintiff. In para No. 4, have been
another set of conditions imposed upon the Plaintiff.
Similarly procurement of land in identified window
corridor is set within validity of acceptance (LOI) which
has to be sub-leased by the defendant No.1. Feasibility
and all technical activities cannot carry without
procurement of proper land for the said power project.
LOI is acceptance of the Plaintiff submitted by way of
proposal is ultra vires to Section 7 of the Contract Act
provides that in order for an acceptance to covert an offer
into a promise (i.e., a legally binding contract) it must be
“absolute and unqualified”. An acceptance that does not
come up to this standard is not acceptance in the eyes of
law and hence any such “acceptance” cannot convert the
offer into a promise i.e., a contract. A contract is a result
of a proposal and its unqualified acceptance. If the
acceptance contains material variation of the terms of
offer, the agreement upon which the contract can be
founded will be missing. Therefore, the law make it
compulsory that acceptance of proposal should be
absolute and unqualified. The obvious conclusion that
 would follow from this is that there was never, in law, a
contract between the Plaintiff and Defendant No. 1.

6.ii. No consideration in case of LOI: In the eyes of law,

consideration would mean and includes some right,
interest, profit or benefit accruing to one party and some
forbearance, by the other. In terms of the said LOI no
consideration is passed so as to constitute an agreement.
Once it is found that by giving their proposal under the
Scheme, the Plaintiff did not derive an enforceable right,
the same in the absence of any consideration would be
void in terms of Section 2 (g) of the Contract Act. The LOI
is an agreement has been made without consideration is
void as suggested and defined under section 25 of the
Act, 1872.

6.iii LOI against public policy: The defendant No.1 is a

government agency doing transaction in a foreign
currency instead of national currency while doing
business with Pakistani investor in Pakistan against
public policy thus lacks national interest and confidence
in national currency. The impugned LOI is ultra vires to
section 23 of the Act, 1872 therefore LOI is void and not
enforceable by any court of law.

6.iv LOI has uncertainty : In para No. 1, the defendant No. 1

has admitted its sole right of control over Keti Bandar
wind corridor and has added the Plaintiff in this list to
provided land for the purpose of the said power plant but
without any certain terms as stated to be not his
obligatory duty to sub-lease the land in specifically
identified wind corridor for the purpose of such power
plants. In para #4, neither Pakistan standard
specifications have been mentioned in each requirement
nor internationally acceptable standards in certain
terms. In para # 6, the defendant No. 1 has the rights of
its satisfaction without meriting parameters and third
party NEPRA, the defendant No.1 is not liable for any
loss of investment such as time value of money etc in
 addition to 10% deduction. The LOI is void for
uncertainty.

6.v LOI restrain legal proceedings: In para # 5, the

defendant No.1 has set immunity condition for itself as
well as Government of Pakistan or any of its agencies
employees or consultant on any grounds whatsoever,
during or after the expiration of validity of LOI imposed
upon the Plaintiff. Thus the restriction placed upon the
Plaintiff’s the right to enforce the agreement by legal
proceedings is void. LOI purport to oust the jurisdiction
of the Courts is illegal and void in accordance with
section 28 of the Act, 1872.

7. LOI is simply a letter of comfort : A contract may be deemed

void if the agreement is not enforceable as it was originally
written. In such instances, void contracts (also referred to as
"void agreements"), involve agreements that are either illegal in
nature or in violation of fairness or public policy which is the
case of the impugned LOI. Thus the impugned Letter of Intent
is not a binding contract between the parties, and it
merely indicates the uncertain intention to enter into the
contract with the third party i.e. NEPRA in the future therefore
it merely constitutes a “letter of comfort”. This position poses
a greater risk to the plaintiff as there will be no contractual
obligation on the part of the defendant No.1 to pay
compensation for the work done or liquidated damages in the
event of a breach, a conditionality mentioned in para # 1. The
lack of a contract means total risk have to be borne by the
Plaintiff. There is no binding relationship between the parties
at this stage as evident from the terms of the Impugned LOI.

8. That the defendant No.1 gave the option the Plaintiff to proceed
with the acquisition of the land with certain condition outside
the wind corridor at Keti Bandar with malafide intention from
the very beginning to cause and fraud thus misinterpreted the
para # 2 of the LOI. The defendant No. 1 has misrepresented in
para No.1 whereas had never in mind to sub lease the land for
the said power project to the Plaintiff. An option in the said LOI
 gives the plaintiff the right, but not the obligation and duty to
buy the land without disclosing specification and without
giving a certain timeframe. The plaintiff never demanded any
such option opportunity. The said misrepresentation was
cause to fraud to encashment of the Bank Guarantee as and
when deemed fit to them.

9. That the defendant No. 1 had played fraud on the Plaintiff by

causing it to undertake sourcing commitment required to be
complied with it under the LOI, by holding out false
representation and assurances. In perpetration of further
fraud, on the plaintiff, the defendant No.1 sought
encashment of Bank Guarantee after expiry of validity period
i.e. 30.08.2009 even though no event or occasion has arisen
entitling defendant No.1 to invoke the same. The Plaintiff never
defaulted in execution of work as agreed in terms of LOI. It is
on record that defendant No. 1 has and admitted that the
defendant No.1 has not sub leased land in the wind corridor
till date establishing the said power plant that clearly
demonstrate that to meet the relevant milestones and
standards have been maneuvered by the defendant No.1 thus
no event for invocation of Bank Guarantee has occurred to
the knowledge of defendant No.1. Invocation of Bank
Guarantee is malafide conduct of defendant No.1 and is an act
attempted to deceive and to receive unjust enrichment for a
claim which has not arisen.

10. The defendant No.1 has committed fraud and fraudulent

intention of serious nature by proceeding to encashment of
Bank Guarantee after expiry of its validity for its invocation in
the void LOI transaction. There was no valid contract executed
between the parties and therefore, the very first condition for
invocation of Bank Guarantee is not satisfied and
in the absence of contract the second condition encashment
would not trigger.
11. That it is evident that the bank guarantee is sought to
be invoked on the ground that the Plaintiff has defaulted in the
performance etc. of the letter of intent dated 30.08.2007 but
does not disclose as to how and in what manner the defendant
No.1 has suffered or is likely to suffer loss on account of non
performance of the LOI by the Plaintiff, and since the
said letter is wanting in these essential particulars, the
invocation cannot be said to be in terms of
the bank guarantee. The contention is fallacious.

12. That the said act of making unlawful and fraudulent Letter of
Intent on the part of the Defendant No.1 is unjust, illegal, null,
void ab-initio and is the result of misrepresentation, fraud,
malice, ulterior motives, and ineffective upon rights of the
Plaintiff enshrined under the Constitution and law. Thus a
void LOI is devoid of legal effects therefore not enforceable by
law by any court of law.

13. That the Plaintiff came to know misrepresentation and

fraudulent act of the defendant No. 1 on 03.07.2023 when he
enquired and discuss the question of transaction in foreign
currency instead of national currency by a government agency
in local transaction with local investor discovered to be against
public policy thus void and later LOI was examined by Mr.
______________Advocated High Court on 15.07.2023 who
suggested that the impugned LOI is ultra vires to the various
enabling provisions of the Contract Act, 1872.

14. That the cause of action accrued when the defendant No.1
committed fraud and misrepresentation by way of the unlawful
and void Letter of Intent which continues time by time and the
same is still continuing. Invocation of Bank Guarantee is
malafide conduct of defendant No.1 and is an act attempted to
deceive and to receive unjust enrichment for a claim which has
not arisen.
15. That the office of the defendant No. 1 is situated within the
territorial limits of this Honorable Court, cause of action also
accrued here, hence this Honorable Court has the jurisdiction
to entertain and adjudicate upon the matter.

16. That the maximum court fee is affixed with the memo of the
plaint.
 PRAYER

In view of the above, it is most humbly prayed that this

Hon’ble Court may be pleased to pass judgment and decree in favour
of the Plaintiff and against the Defendant No.1 as under:-

1. To declare the Letter of Intent dated 23.08.2007 is ultra vires

to the provisions of the Contract Act, 1872 thus void and not
enforceable under law.

2. To direct the Defendant No.1 to surrender the original Letter of

Intent dated 23.08.2007 before this Hon’ble Court.

3. Pass a decree for declaration in the suit for cancellation of the

unlawful and void document “Letter of Intent dated
23.08.2007” being ultra vires to the Contract Act, 1872 and is
only to deprive the Plaintiff from his valuable rights and
property and are ineffective upon the rights of the Plaintiff and
is nullity in the eyes of law and is liable to be cancelled.

4. To grant a decree of permanent injunction against the

defendant No.1 there by restraining them, their agents,
employees/officers/servants, colleagues, representatives,
attorneys and/or anybody else acting through them or on their
behalf to claim any right on the basis of void Letter of Intent
dated 23.08.2007.

5. Further prayed that the defendant No. 1, their agents,

employees/officers/servants, colleagues, representatives,
attorneys and/or anybody else acting through them or on their
behalf may also please be restrained from taking unlawful
advantage or causing wrongful loss to the Plaintiff in any
manner whatsoever may kindly be passed in favor of the
Plaintiff and against the defendant No 1 till disposal of the
instant suit.

6. Any other relief this Hon’ble Court may deem fit and proper in
the interest of justice.

Karachi Plaintiff
Dated: .08.2023 Through Attorney
 Advocate for the Plaintiff

Verification of Suit
I,___________, Muslim, Adult, R/o above mentioned that I am lawful
Attorney of the Plaintiff in the matter and do hereby state on oath
that I am fully conversant with the facts of the case and whatever is
stated hereinabove is true and correct to the best of my knowledge
and beliefs.

Karachi
Dated: .08.2023
Deponent
The deponent above named is identified by me to the
commissioner for taking affidavit.

Advocate
Sworn before me on Oath at Karachi by the deponent above-named
who is identified to me by ____________________ Advocate, who is
known to me personally.

COMMISSIONER FOR TAKING AFFIDAVIT

1. Document Filed; Annexure P1

2. Documents relied upon; As above

3. Address of the Plaintiff/Plaintiff’s Attorney for service;

As mentioned in the memo of plaint.

4. Address of plaintiff counsel; As mentioned in Vakalatnama

for service.

DRAFTED BY

( )
Counsel for Plaintiff