Specific performance raqam late jama karwane ke bawajood buyer case jeet gia.
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| Specific performance |
Certainly! Here's the story of the case:
The case revolves around a dispute over the sale of a property located in Gulberg-III, Lahore. The respondent, who wanted to purchase the property, entered into an agreement with the petitioner, the seller. According to the agreement, the respondent paid earnest money of Rs. 5 million and was supposed to pay the remaining Rs. 7 million upon the execution of the sale deed by a specified target date of 05.05.2014.
However, despite the earnest money being paid, the petitioner failed to fulfill their obligations under the agreement. They did not initiate the process of transferring the property or clear any encumbrances on it by the target date. Additionally, the petitioner claimed to have purchased another property from someone else due to the respondent's alleged failure to pay the balance sale consideration on time.
In response, the respondent argued that they were ready and willing to perform their part of the agreement. They had issued a cross cheque to the petitioner before the target date and were prepared to pay the remaining balance. However, the petitioner did not cooperate and failed to take necessary steps to complete the transaction.
After reviewing the evidence and arguments presented by both parties, the court found that the petitioner had indeed failed to perform their obligations under the agreement. Despite the delayed payment by the respondent, the court ruled in favor of the buyer, noting their readiness to perform and the seller's failure to fulfill their part of the agreement. As a result, the buyer won the case for specific performance of the agreement.
بے شک! کیس کی کہانی یہ ہے:
یہ مقدمہ لاہور کے گلبرگ تھری میں واقع پراپرٹی کی فروخت کے تنازع کے گرد گھومتا ہے۔ جواب دہندہ، جو جائیداد خریدنا چاہتا تھا، درخواست گزار، بیچنے والے کے ساتھ معاہدہ کیا۔ معاہدے کے مطابق مدعا علیہ نے 5000 روپے کی بیانیہ رقم ادا کی۔ 5 ملین اور باقی روپے ادا کرنے تھے۔ 05.05.2014 کی ایک متعین ہدف تاریخ تک سیل ڈیڈ پر عمل درآمد پر 7 ملین۔
تاہم، بینا رقم ادا کیے جانے کے باوجود، درخواست گزار معاہدے کے تحت اپنی ذمہ داریاں پوری کرنے میں ناکام رہا۔ انہوں نے مقررہ تاریخ تک جائیداد کی منتقلی کا عمل شروع نہیں کیا اور نہ ہی اس پر کوئی بوجھ صاف کیا۔ مزید برآں، عرضی گزار نے دعویٰ کیا کہ جواب دہندہ کی جانب سے وقت پر بیلنس سیل کی ادائیگی میں مبینہ ناکامی کی وجہ سے کسی اور سے دوسری جائیداد خریدی ہے۔
جواب میں، مدعا علیہ نے دلیل دی کہ وہ معاہدے کے اپنے حصے کو انجام دینے کے لیے تیار اور تیار ہیں۔ انہوں نے ہدف کی تاریخ سے پہلے درخواست گزار کو کراس چیک جاری کر دیا تھا اور وہ بقایا رقم ادا کرنے کے لیے تیار تھے۔ تاہم، درخواست گزار نے تعاون نہیں کیا اور لین دین کو مکمل کرنے کے لیے ضروری اقدامات کرنے میں ناکام رہا۔
دونوں فریقوں کی طرف سے پیش کردہ شواہد اور دلائل کا جائزہ لینے کے بعد، عدالت نے پایا کہ درخواست گزار معاہدے کے تحت اپنی ذمہ داریاں نبھانے میں واقعی ناکام رہا ہے۔ جواب دہندہ کی جانب سے تاخیر سے ادائیگی کے باوجود، عدالت نے خریدار کے حق میں فیصلہ سنایا، ان کی کارکردگی کے لیے تیاری اور بیچنے والے کی جانب سے معاہدے کے اپنے حصے کو پورا کرنے میں ناکامی کو نوٹ کیا۔ نتیجے کے طور پر، خریدار نے معاہدے کی مخصوص کارکردگی کا مقدمہ جیت لیا۔
JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
C. R. No. 26520 of 2019
Mst. Abida Rafique Ghouri through her legal heir Mst. Ambreena Azeem.
VERSUS
Syed Amjad Hussain Gillani and 03 others.
JUDGMENT
Date of Hearing
29.04.2024
Petitioners by:
Mian Muhammad Faheem Bashir, Advocate
Respondent No. 1 by:
M/s Muhammad Salman Masood and
Muhammad Nisar Qammar, Advocates
Respondent No. 2 by:
Ms. Samia Syed, Advocate
Respondent No. 3 by:
Mr. Talat Mehmood, Advocate vice counsel
Respondent No. 4 by:
Proceeded exparte vide Order dated 25.09.2023
ABID HUSSAIN CHATTHA, J. This Civil Revision assails the concurrent
Judgments & Decrees dated 23.10.2017 and 04.02.2019 passed by Civil
Judge and Additional District Judge, Lahore, respectively, whereby, the suit
for specific performance of Respondent No. 1 (the “Respondent”) against
Mst. Abida Rafique Ghouri impleaded through her legal heir (the
“Petitioner”) was concurrently decreed.
2.
Brief facts of this case are that the Respondent instituted a suit for
specific performance based upon written agreement to sell dated 05.02.2014
(the “Agreement”) against the Petitioner for purchase of triple storey house
bearing No. 167/M, measuring 13.5 Marlas situated at Gulberg-III, Lahore
(the “suit property”). It was alleged that out of total sale consideration of
Rs. 12-Million, the Respondent paid Rs. 05-Million as earnest money and
the remaining sale consideration of Rs. 07-Million was payable at the time
of execution of sale deed or transfer of the suit property with target date of
05.05.2014. It was also asserted that the Petitioner provided a copy of
transfer letter in her favour regarding the suit property issued by LDA
(Respondent No. 3) dated 06.11.1991 and after due diligence, it was
confirmed that the suit property was in the name of the Petitioner and free
C. R. No. 26520 of 2019
from all kinds of liabilities. Before the target date, the Respondent issued
cross cheque bearing No. 1486014 dated 02.05.2014 in favour of the
Petitioner and provided a copy of the same to her with the request to initiate
the process of transfer of the suit property and receive the balance sale
consideration as per her own choice. However, the Petitioner deliberately
lingered on the execution of sale deed on one pretext or the other despite
repeated requests and also did not pay the double amount of earnest money
in case of her refusal to transfer the suit property as stipulated in the
Agreement. Even, Respondent No. 2, property dealer, who had guaranteed
the due execution of the sale transaction, was also contacted but in vain. As
such, on account of failure of the Petitioner to perform her part of the
Agreement, the Respondent has suffered huge loss. Hence, this suit.
3.
The Petitioner, in her written statement, admitted the due execution of
the Agreement and receipt of earnest money. However, it was alleged that
balance sale consideration was not paid on or before the target date despite
her repeated requests and as such, the Agreement stood rescinded as per its
terms. It was also asserted that the Petitioner issued three notices dated
06.05.2014, 14.05.2014 and 22.05.2014, respectively, in this behalf which
were not responded to by the Respondent. It was further averred that she had
purchased 01 Kanal property from one Mirza Tahir Baig for total
consideration of Rs. 12,800,000/- and paid an earnest money of Rs.
4,100,000/- which was confiscated due to non-payment of remaining sale
consideration by the Respondent within the stipulated target date of
15.05.2014 and as such, she has suffered irreparable loss and injury. It was
next revealed that the Respondent arranged only Rs. 2,100,000/- as balance
sale consideration out of Rs. 07-Million which was deposited in her account
without her consent and the same was later returned to the Respondent
through cheque bearing No. 1409227 dated 02.06.2014 because he did not
fulfill his obligation to pay the balance sale consideration within the target
date. As such, the Respondent is neither entitled to receive the double
amount of earnest money nor the relief of specific performance of the
Agreemen
C. R. No. 26520 of 2019
4.
Respondent No. 2, the property dealer, in his written statement also
admitted the due execution of the Agreement between the Petitioner and the
Respondent including payment and receipt of earnest money. He asserted
that he provided a copy of cheque qua balance sale consideration issued by
the Respondent to the Petitioner and asked her to initiate the process of
transfer of the suit property but she showed her continuous reluctance and
refused to transfer the same as well as pay back double amount of earnest
money. As such, Respondent No. 2 supported the version of the Respondent
to the effect that the Petitioner did not perform her part of the Agreement.
5.
Out of the divergent pleadings of the parties, the Trial Court framed
the following issues on 02.06.2015:-
1.
Whether the plaintiff is entitled to the decree for specific
performance of agreement to sell dated 05-02-2014 as prayed
for? OPP
2.
Whether the plaintiff is entitled to receive double earnest money
amounting to Rs.1,00,00,000/- on account of failure of
defendant No.2 to perform her part of agreement to sell? OPP
3.
Whether the plaintiff was willing and still ready to perform his
part of contract? OPP
4.
Whether the time was essence of the contract and the plaintiff
failed to pay the remaining consideration of Rs.70,00,000/-
within three months i.e. till 05-05-2014, hence the agreement to
sell dated 05-02-2014 has become rescinded?OPD1
5.
Whether the plaintiff has no cause of action to file the instant
suit against the defendants? OPD
6.
Whether the suit of the plaintiff is not maintainable in its
present form, hence the same is liable to be dismissed with
special costs? OPD
7.
Relief.
6.
After recording respective evidence of the parties, the Trial Court
proceeded to Decree the suit of the Respondent. The Petitioner preferred an
Appeal which was also dismissed by the Appellate Court. Hence, this Civil
Revision.
7.
Learned counsel for the Petitioner contended that the Courts below
have not addressed the question of readiness and willingness on the part of
C. R. No. 26520 of 2019
the Respondent to perform his part of the Agreement and his financial ability
to pay the balance sale consideration on or before the target date as it was
proved from bank statement of the Respondent (Ex. P-3) that he never had
requisite funds to pay the balance sale consideration. The Respondent had
not specifically pleaded in the plaint that he was always ready and willing to
perform his part of the Agreement and had financial ability to pay the
balance sale consideration within the target date. Specific performance is a
discretionary relief and in the instant case, the same has not been awarded
through structured discretion exercised by the Courts below. This is evident
from the fact that at the time of filing of the suit, no tangible effort was made
by the Respondent to deposit the balance sale consideration and the same
was paid after one year from the date of institution of the suit in compliance
with the order dated 22.05.2015. The lack of financial ability of the
Respondent to pay the balance sale consideration on or before the target date
is evident from his conduct supported by interim orders on record. The
observations of the Courts below to the effect that the suit property was
mortgaged cannot be read in evidence as no such plea was taken by the
Respondent in his plaint and as such, evidence beyond pleadings could not
have been made basis to hold that the Petitioner was in default of her part of
the Agreement.
8.
Conversely, learned counsel for the Respondent contended that the
Respondent specifically pleaded in his plaint that he had performed his part
of the Agreement, whereas, the Petitioner did not perform her part of the
Agreement which was also endorsed by Respondent No. 2 who was a
guarantor of the sale transaction. The payment of Rs. 2,100,000/- to the
Petitioner was made merely to facilitate her in redeeming the suit property
which though returned yet proves that the Respondent had financial
resources to pay the balance sale consideration. The cross cheque was issued
in a bonafide manner requiring the Petitioner to initiate the process of
transfer of the suit property and take the balance sale consideration as per
her choice at the time of execution of the sale deed or transfer of the suit
property as agreed in the Agreement. However, the Petitioner neither took
any step to initiate the process of transfer of the suit property by obtaining
C. R. No. 26520 of 2019
no objection certificate from LDA nor redeemed the portion of the suit
property in possession of the mortgagee. Hence, the concurrent findings of
fact recorded by the Courts below are not liable to be reversed.
9.
Arguments heard. Record perused.
10. The execution of the Agreement and receipt of earnest money is
admitted. The dispute is essentially with respect to determination as to
whether the Petitioner or the Respondent failed to perform her or his part of
the Agreement. It is admitted on record that the Respondent as buyer of the
suit property issued cross cheque dated 02.05.2014 in the name of the
Petitioner before the target date of 05.05.2014, a copy of which was handed
over to the Petitioner requiring her to initiate the process of transfer in the
LDA. However, there is no evidence on record that the Petitioner applied for
no objection certificate which was required for transfer of the suit property
either through execution of sale deed or directly before the LDA. She also
did not take any step for execution of the sale deed or transfer of the suit
property in the LDA in the name of the Respondent. The balance sale
consideration was payable at the time of execution of sale deed or transfer
before the LDA as per the contents of the Agreement. Therefore, the plea
that the Respondent did not have the financial ability to complete the
transaction was immature and is based on assumption that he did not have
requisite funds in the bank account regarding which he had issued the cross
cheque in favour of the Petitioner because payment could have been made in
cash or through pay order from another account or by any other means. The
Petitioner was bound to initiate the process of sale transaction and may well
have required the payment of balance sale consideration through pay order
or cash or by any other mode at the time of execution of sale deed or transfer
of the suit property before LDA but that time did not arrive due to lapse on
the part of the Petitioner. The Petitioner had stated in her written statement
that she had issued notices dated 06.05.2014, 14.05.2014 and 22.05.2014 but
the same were not brought on record and were issued after the target date of
05.05.2014. Although, the Respondent had not pleaded that he paid Rs.
2,100,000/- to the Petitioner to facilitate her to clear the mortgage qua the
suit property yet the same fact was revealed by the Petitioner in her written
C. R. No. 26520 of 2019
statement, perusal thereof shows that the said amount was deposited by the
Respondent in the bank account of the Petitioner on 28.05.2014 but the same
was returned vide cheque dated 02.06.2014. Both the above dates are
beyond the target date which depicts that the said amount was extended
merely to redeem the mortgage over the suit property which had not been
cleared before the target date. The Petitioner had clearly undertaken in the
Agreement that the suit property was free from all charges or liens but MarkD on record shows that the suit property had been mortgaged to one Abdul
Sattar (the Petitioner in connected C. R. No. 32672 / 2022) on 30.09.2013,
for a period of two years, redeemable on three months’ notice upon payment
of mortgage money. Notwithstanding the validity of the mortgage deed, as
an attending circumstance, it is established that payment of Rs. 2,100,000/-
was infact for redeeming the mortgage since the amount of Rs. 2,100,000/-
matches with the amount of mortgage money and further proves that the
factum of mortgage was not incorporated in the LDA record which shows
the conduct of the Petitioner that she not only concealed the fact of mortgage
in the Agreement but also failed to clear the suit property from all
encumbrances before the target date. As such, the Petitioner was not in a
position to hand over vacant possession of the suit property to the
Respondent at the target date.
11. Record further depicts that vide Order dated 17.06.2014, the Trial
Court granted restraining order in favour of the Respondent subject to
deposit of remaining sale consideration. On 12.07.2014, counsel for the
Respondent recorded his statement that the Respondent is ready to pay the
remaining sale consideration and deposited original cross cheque in the
name of the Petitioner with the stipulation that the Petitioner can encash the
same and the Respondent would be liable for the consequences. However,
learned counsel for the Petitioner refused to receive the same. Later, vide
order dated 12.03.2015, the Trial Court directed the Respondent to deposit
the balance sale consideration in the Court within one month. After settling
mode of payment through subsequent orders, the Trial Court vide order
dated 22.05.2015 granted absolute last opportunity to the Respondent to
deposit the balance sale consideration within thirty days and in compliance
C. R. No. 26520 of 2019
thereof, the same was paid in the Court. Under these circumstances, it cannot
be conclusively conferred that the Respondent did not have financial ability
to complete the sale transaction. This is especially so since the Respondent
had promptly instituted the suit on 17.06.2014 i.e. 1-1/2 months after the
target date. The Petitioner, in her written statement, while admitting the
transaction did not seek immediate payment of remaining sale consideration
by demonstrating her willingness to execute sale deed but sought rescission
of the Agreement.
12. The Trial Court while rendering its finding as to whether time was
essence of the Agreement, concluded that the alleged sale transaction by the
Petitioner with Mirza Tahir Baig could not be proved by the Petitioner who
as DW-1 deposed regarding her ignorance with respect to the agreement
with Mirza Tahir Baig as the same was executed by her deceased son.
Further, the alleged agreement with Mirza Tahir Baig (Ex. D-1) allegedly
executed on 11.02.2014 neither mentioned the names of the marginal
witnesses nor the said Mirza Tahir Baig was produced as a witness to verify
its contents. As such, the asserted fact by the Petitioner that she has suffered
injury for lack of payment of balance sale consideration on due date by the
Respondent and that time was essence of the Agreement was not proved by
her.
13. The upshot of the above discussion is that the Courts below have
rendered well-reasoned and sound Judgments after due appreciation of
evidence and taking into account all aspects of the case. The concurrent
Judgments passed by the Courts below are unexceptional which require no
interference by this Court in exercise of revisional jurisdiction under Section
115 of the Code of Civil Procedure, 1908.
14. In view of the above, this Civil Revision is devoid of any merit and
the same is hereby dismissed.
(Abid Hussain Chattha)
Judge
Approved for reporting.
Judg
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