[Islamabad]
Before Miangul Hassan Aurangzeb and Lubna Saleem Pervez, JJ
MUHAMMAD AKRAM----Appellant
Versus
LIAQAT ALI KHAN and another----Respondents
R.F.A. No.163 of 2018, decided on 10th March, 2021.
Specific Relief Act (I of 1877)---
----Ss. 12 & 54---Suit for specific performance and permanent injunction---Transfer of suit-house---Time as the essence of the contract---Contractual obligations, breach of---Vendor or vendee---Determination---Vendee's inability for preparation (of cheque etc.) for payment of balance consideration---Effect---Suit for specific performance was decreed in favour of plaintiff/vendee---Claim of the respondent/plaintiff was that appellant/ defendant had backed out of his contractual obligation as he had not taken preparatory steps for the transfer of suit-house like not obtaining a No Demand Certificate from the concerned Authority (C.D.A.) being a pre-requisite for the transfer of any property---Validity---Pleadings in the written statement were silent as to the stage when the appellant/defendant decided to back out from his obligations under the agreements---Where agreements for the transfer of immovable property for consideration as huge as Rs.1,00,00,000/- are to be made, the parties generally interact for making arrangements for the transfer and payment of the remaining sale consideration prior to the target date fixed in the agreements---No documentary evidence was brought on the record by respondent /plaintiff to demonstrate that he had the requisite funds to pay the balance sale consideration of Rs.50,00,000/- by the target date---Generally pay orders or demand drafts are made prior to or by the target date fixed in the agreements to sell---In the present case, admittedly, no pay order or demand draft or cheque for an amount of Rs.50,00,000/- had been prepared by respondent / plaintiff by the target date---Agreements to sell, duly exhibited by the respondent / plaintiff, explicitly provided a specific date (10.06.2016) for the payment of the remaining sale consideration amounting to Rs.50,00,000/---Consequences for the non-payment of the balance sale consideration by said date were also clearly set out in the said agreements, i.e. the forfeiture of the amount already paid---An amount of Rs.50,00,000/- had admittedly been paid by respondent / plaintiff to the appellant when the said agreement was executed---Therefore, it would be safe to hold that time was agreed by the said parties to be of the essence---Even otherwise, given the rapidly increasing prices of real estate, if the balance sale consideration is not paid by an agreed date, an agreement to sell loses its efficacy---Respondent (plaintiff/vendee) claimed to have issued a legal notice to the appellant(defendant/vendor) on 14.06.2016 requiring the latter to obtain an N.O.C. from the C.D.A. and transfer the suit house to the former failing which legal proceedings would be initiated---Appellant denied having received the said legal notice; he has put forth such denial as an excuse for not responding to the said legal notice---Since the appellant in relevant paragraph of the written statement had explicitly denied having received a legal notice from respondent, it became incumbent on the latter to prove that such a legal notice was issued by producing its scribe, which respondent failed to do---On the other hand, respondent as PW, in his cross-examination, admitted having received legal notice dated 18.06.2016 wherein the appellant informed respondent that the agreement dated 10.02.2016 stood cancelled due to the non-payment of the remaining sale consideration, and that the payment already made stood forfeited---Respondent did not give any reply to the said legal notice---A legal notice to which reply was given was a material document to show the conduct of the parties after the execution of the agreement and before filing the suit for specific performance---In the present case, the Civil Court did not refer to any provision of the law or a clause in the agreements to sell which obligated the appellant(vendor/defendant) to obtain a No Demand Certificate before the transfer could be made---However, the appellant had already (on 19.04.2016 i.e. before the specific/target date (10.06.2016), obtained a No Demand Certificate from the concerned Authority (C.D.A.) regarding property tax, water and allied charges---Suit for specific performance instituted by respondent /plaintiff ought not to have been decreed---Since the appellant had remained in possession of the suit-house which had increased in value over the past few years, it would not be equitable for the appellant to retain the advance payment---In said view, subject to the return of Rs.50,00,000/- by the appellant to respondent, High Court set aside impugned judgment and decree; and suit for specific performance instituted by respondent No.1 was dismissed---Appeal was allowed, in circumstances.
Muhammad Abdur Rehman Qureshi v. Sagheer Ahmed 2017 SCMR 1696; Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwalla PLD 1962 SC 1; Muhammad Taj v. Arshad Mehmood 2009 SCMR 114 and Liaqat Ali Khan v. Falak Sher PLD 2014 SC 506 ref.
Syed Javid Akbar for Appellant.
Raja Yasir Yousaf Abbasi for Respondent No.1.
Misbah-ul-Mustafa for Respondent No.2.
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