PLJ 2023 Lahore (Note) 93
Present: Asim Hafeez, J.
ABDUL REHMAN--Petitioner
versus
Syed IQBAL HASSAN KAZMI and others--Respondents
W.P. No. 9264 of 2023, decided on 5.4.2023.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, 1908, S. 115--Suit for specific performance of agreement--Quantum of balance consideration--Contractual obligations--Earnest money was paid--No dues certificate (NOC)--Revision petition--Direction to payment of balance consideration--Modification is order of trial Court--Deposit of balance amount--Trial Court directed petitioner to deposit sum of Rs. 23,755,104/-, who showed willingness to do the needful, but then Respondent No. 1 preferred revision petition, and revisional Court directed deposit of balance consideration of Rs. 36,400,000/- without giving effect to the amounts deposited with DHA at the behest of Respondent No. 1--It is not pleaded by Respondent No. 1 that NDC was not applied--The overdue amounts identified were not deposited by Respondent No. 1, but petitioner deposited Rs. 12,025,007/ and Rs. 619,889.00/- [Rs. 16,644,896/ through pay-orders--Quantum of amounts and factum of deposits with DHA is not disputed, which deposit is essentially required before effecting transfer(s) in DHA--Petition allowed. [Para 3 & 6] A & B
Mr. Zaheer-ul-Hassan Zahoor, Advocate for Petitioner.
Raja Tariq Nadeem, Advocate for Respondent No. 1.
Date of hearing: 5.4.2023.
Order
Petitioner hereby assails order dated 31.01.2023, of the revisional Court, which proceeded to modify the order of trial Court, and directed petitioner to pay balance consideration amounting to
Rs. 36,400,000/-, instead of Rs. 23,755,104/-, being ordered by the trial Court.
2. Essentially the dispute is regarding the quantum of balance consideration, required to be deposited for the purposes of ascertaining the willingness of the petitioner [vendee] and grant of interim injunction to the petitioner in the suit for seeking specific performance of agreement to sell dated 01.12.2021. Court of first instance and revisional Court differ in their understanding of the facts.
3. Learned counsel for the petitioner contends that full consideration was Rs. 40,400,000/-, out of which Rs. 4,000,000/- was paid to Respondent No. 1 [vendor] as earnest money and balance. payable was Rs. 36,400,000, under the terms of the agreement. Submits that as per the practice, transfer of plots in Defence Housing Authority Lahore (‘DHA’) necessitates requirement of seeking no-dues-certificate (NDC), whereupon it transpired that whether any amount was payable against the plot in question, in the records of DHA. Adds that NDC was applied by Respondent No. 1, whereupon it was informed that a sum of Rs. 12,025,007/- and another
Rs. 619,889.00/- were due against plot. And unless said amounts are deposited paid no transfer would be allowed. Submits that, on the request of Respondent No. 1 aforesaid amounts were deposited with DHA, on behalf of Respondent No. 1, through pay-orders dated 11.02.2022 and 18.02.2022, respectively. And appointment for transfer was conveyed for 23.02.2022, at the office of DHA, when Respondent No. 1 did not turn up, who demanded appreciation in the consideration agreed. Petitioner had also arranged pay-order of balance consideration of Rs. 23,755,104/-, after deducting the amounts deposited on behalf of Respondent No. 1. In this background, petitioner instituted the suit. Trial Court directed petitioner to deposit sum of Rs. 23,755,104/-, who showed willingness to do the needful, but then Respondent No. 1 preferred revision petition, and revisional Court directed deposit of balance consideration of Rs. 36,400,000/- [without giving effect to the amounts deposited with DHA at the behest of Respondent No. 1].
4. Conversely, learned counsel for Respondent No. 1 submits that petitioner had not complied with the order of revisional Court, who had in fact made misstatements before the trial Court, alleging that interim injunction was granted by this Court in titled proceedings. Submits that petitioner did not fulfill his contractual obligations by paying the balance consideration within the contractually stipulated date.
5. Dispute is straightforward, which is determined while being conscious of the pendency of suit, hence, Court refrains from making comments, touching merits to avoid any prejudice. Questions touching fulfilment of contractual obligations, within the performance date or not, are issues to be raised before the trial Court. Instant proceedings are confined to the question of determining quantum of balance consideration in the context of suit for specific performance of agreement regarding immovable property.
6. It is not disputed that Rs. 12,025,007/- and another sum of Rs. 619,889.00/- were conveyed as outstanding against plot, upon seeking the NDC. It is not pleaded by Respondent No. 1 that NDC was not applied. The overdue amounts identified were not deposited by the Respondent No. 1, but petitioner deposited Rs. 12,025,007/ and
Rs. 619,889.00/- [Rs. 16,644,896/] through pay-orders. Quantum of amounts and factum of deposits with DHA is not disputed, which deposit is essentially required before effecting transfer(s) in DHA.
7. Upon adjusting the amounts deposited with DHA, at the behest of Respondent No. 1, payable balance consideration comes to Rs. 23,755,104/-. In these circumstances, petitioner cannot be burdened and directed to deposit balance consideration of
Rs. 36,400,000/-, denying credit/ benefit of the amounts already deposited with DHA on behalf of the Respondent No. 1. Revisional Court decided the matter erroneously. unfairly and unjustifiably. Direction to deposit of balance consideration was intended to ascertain an element of willingness on the part of the purchaser in suit(s) for specific performance. Trial Court aptly directed the deposit of balance consideration of Rs. 23,577,104 after adjusting the amounts deposited on behalf of Respondent No. 1 to DHA.
8. This Constitution petition is allowed, and order dated 31.01.2023 of the revisional Court is set aside and order of trial Court of 22.06.2022 is affirmed.
9. When confronted that whether amount directed to be deposited by the trial Court, amounting to Rs. 23,755,104/-, was deposited, learned counsel for the petitioner contends that pay order was submitted in Court for onward deposit in profit bearing scheme. This statement is controverted by the counsel for the Respondent
No. 1. Be that as it may, it is made clear that this order will be effective only if balance consideration amounting to Rs. 23,755,104/- had been tendered by way of submission of pay-order with the trial Court, and in case pay-order was not tendered so far, this order shall not take effect and instant petition shall deemed as dismissed. It is noted that any observation herein, recorded for deciding the lis, will not prejudice the case of any of the parties or influence determination of the lis on merits. No order as to the costs.
(JK) Petition allowed
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