Specific Performance Judgments

2024  CLC  268    

NASIR ABBAS BHATTI vs ABID HUSSAIN

Suit for specific performance of agreement to sell---Remaining sale consideration, depositing of---Readiness and willingness of vendee---Scope---Discretionary powers of the Court---There is no provision, undoubtedly, in the Specific Relief Act, 1877 requiring the vendee to deposit the remaining sale consideration upon filing of the suit for specific performance of contract, however, as the relief of specific performance is discretionary in nature and cannot be claimed as a matter of right, therefore, the vendee must state that he has performed all the conditions which under the agreement he was bound to perform and right from the date of execution of the agreement till filing of the suit he had been ready and willing to perform his part of the contract; he is not only required to state in the plaint his readiness and willingness to perform his part of the contract but also establish through supporting evidence like pay order, bank statement or other material, his ability to perform his part, leaving no doubt in the mind of the Court that the proceedings seeking specific performance have not been initiated to cover up his default or to gain time to generate resources---It is in said context, the Court in order to weigh his (vendee's) capacity to perform and intention to purchase may direct the vendee to deposit the balance sale consideration---Readiness and willingness on the part of the vendee to perform his part of the obligation also prima facie demonstrates that non-completion of the contract was not the fault of the vendee and the contract would have been completed if it has not been renounced by the vendor---No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below, dismissing the suit filed by the petitioner/plaintiff for non-depositing of remaining consideration-

2024  CLC  268    

NASIR ABBAS BHATTI vs ABID HUSSAIN

Ss. 12 & 22---Suit for specific performance of agreement to sell---Equity and fairness in the contract---Remaining sale consideration, non-deposit of---Readiness and willingness of the plaintiff/vendee---Scope---Discretionary powers of the Court---Suit filed by the petitioner/plaintiff for specific performance of agreement to sell was dismissed due to non-deposit of remaining sale consideration and appeal preferred there-against was also dismissed---Contention of the petitioner was that since the respondents/ defendants had disputed the execution of agreement to sell in question, therefore, the petitioner was not liable to pay the remaining sale consideration---Validity---Trial Court, after recording oral evidence of the plaintiff/petitioner, in order to evaluate his bona fide and readiness, directed him to deposit the remaining sale consideration but he, despite availing two opportunities, failed to comply with the said order---There are many instances in which though there is nothing that actually amounts to fraud, nevertheless there is a want of equity and fairness in the contract which are essential in order that the Court may exercise its extraordinary jurisdiction in specific performance---In judging the fairness of a contract the Court looks not merely on the terms of the contract but all the surrounding circumstances---Position that emerged in the present case was that specific performance of an agreement executed in the year 2013 for a consideration of a Rs.8,000,000/- was being sought only after paying an amount of Rs.400,000/- as earnest money when the value of the property-in-dispute had multiplied exponentially, as claimed by the respondents while value of the local currency had remarkably depreciated, and that too despite failure of the petitioner to deposit the remaining sale consideration on order passed by the Trial Court---Conduct of the petitioner/plaintiff manifestly showed non-seriousness and unwillingness on his part---Such exercise of jurisdiction might lead to miscarriage of justice and unfair advantage to the petitioner who, by merely paying a meager amount, had bound down the respondents for a number of years---Trial Court's order clearly specified that in case of failure to deposit the balance sale price, suit of the plaintiff would be dismissed---No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below, dismissing the suit filed by the petitioner/ plaintiff for non-depositing of remaining consideration--

2024 YLR 56 Lahore

 آباد کاری سکیم کے تحت رقبے کی الاٹمنٹ حقوق ملکیت نہ ملے رقبہ تا حال صوبائی حکومت کی ملکیت. دعوی تعمیل معاہدہ مختص خارج

2023  CLC  1100

ASIM JAMSHAID vs SHAHZAD IQBAL MALIK

Suit for specific performance of agreement to sell immoveable property (plot)---Performance of contract---Specific enforceability---Court, discretion of---Conduct of the party---Time as essence of contract---Effect---Agreement was made between the parties with respect to a plot in which purchaser (appellant/plaintiff) paid only 8% of total sale consideration as earnest money and remaining amount was to be paid to the seller (respondent/defendant) in 5 days or so---Condition specified in relevant clause of the agreement made between the parties was that the seller shall pay double the earnest money if he backed out from the sale and if purchaser did so, his advance money would not to be refunded---Trial Court refused specific performance of agreement to sell to appellant/plaintiff, however, the respondent /defendant was directed to pay double the earnest money and remaining amount deposited in the Court was also to be returned to the appellant /plaintiff ---Appellate Court modified judgment and decree to the extent of adding profit to the paid earnest money at the bank rate since date of its payment---Contention of the appellant/plaintiff was that the Courts below were bound to decree his suit qua specific performance notwithstanding having a clause in agreement providing for payment of double the earnest money in case of refusal by the seller (respondent/defendant)---Held, that S.19 of the Specific Relief Act, 1877 ("the Act, 1877 ") gave right to claim compensation to the person suing for specific performance of contract in addition to or in substitution for its breach---Relinquishment of right to seek specific performance of contract was to be decided keeping in view the conduct of the parties and evidence led in said respect---Short date was fixed, in present case, for performance of the contract meaning thereby that time was essence of the contract---Record revealed contradictions in the statements of the witnesses of the appellant/plaintiff regarding offering of balance sale consideration by the plaintiff to the respondent/defendant---No bank statements showing balance to pay remaining consideration was produced in evidence --- Suit was instituted after 18 months of the date specified for performance of contract; and, after a month, remaining sale consideration was deposited in the Court and that too on direction of the Court--- Having the balance money in hand then, did not mean that the appellant/plaintiff had the same on the date specified for performance of contract---Appellant/plaintiff failed to show his primary responsibility to show his readiness and willingness to perform his part of obligation---Respondent/defendant, after five months of purchasing suit-plot, bargained to sell suit-plot at a price which was Rs. 350,000/- more than its purchase price---Only a few (5) days time was provided to the appellant for payment of the balance sale consideration in the agreement, which was actually deposited in the Court after more than one and half years---Agreement-in-question could not be construed to infer consent of respondent / defendant to sell the suit-property with all its potential for rapid increase in value of suit-plot---Such a construction would give an unfair advantage to the appellant over his rival which could not be countenanced in law---High Court maintained that discretionary relief of specific performance could not be extended to the appellant/plaintiff--

2023  CLC  926
KHAIRAT ALI vs SAQIB ASHFAQ

Agreement to sell---Non-deposit of balance sale consideration despite direction of court---Effect---Appellant/vendee filed suit for possession through specific performance of agreement to sell against respondents for non-performance of the same---Appellant was directed by the Trial Court to deposit the remaining sale consideration, who failed to comply with such direction despite availing numerous opportunities including a last opportunity---Trial Court dismissed appellant's suit---Appellant contended that he was ready to make the requisite payment and that it was in the best interest of justice if one opportunity be granted to the appellant---Validity---Wisdom behind ordering a vendee to deposit the remaining sale consideration was not only to see the vendee's bona fides/seriousness about fulfilling his contractual obligation but also to safeguard the rights of the vendor, therefore, any such order of deposit would definitely allure to the benefit of both the parties---Perusal of the record transpired that appellant from the very beginning had been applying delaying tactics in order to obviate the deposit of remaining sale consideration---Trial Court passed an order of deposit of remaining sale consideration in view of the Hamood Mehmood's case (2017 SCMR 2022) whereafter, successive opportunities were granted to the appellant to do the needful including last opportunity but even then he did not bother to do the needful--

2023  MLD  838    

PREMIUM DEVELOPERS through Chief Executive vs MUHAMMAD TARIQ

Suit for specific performance of agreement to sell and injunction---Balance consideration amount--- Determination--- Respondent/defendant/seller entered into agreement to sell his land with petitioner/plaintiff/buyer and after receiving earnest money did not conclude the sale---Petitioner/plaintiff/buyer claimed to have complied with all conditions of agreement---Validity---Agreement inter se the parties was a bilateral agreement and in a bilateral agreement, participating parties promised each other that they would perform or refrain from performing an act---Remaining amount of 1st installment of 25% of agreed sale consideration was to be paid by petitioner/plaintiff/buyer to the respondent/defendant/seller after finalization of actual recovery of the seller as it was remaining sale amount of already sold residential and commercial units of the Scheme upon providence of sales record along with and that of actual measurement of remaining available immovable assets of the Scheme---Nothing was on record to suggest that respondent/defendant/seller fulfilled his part of the agreement in such regard by providing detail of already sold units, residential and commercial, by providing sale records as well as actual measurement of remaining available immovable assets of the scheme---Without calculation of already sold units and received amount there-against actual sale price could not be determined and petitioner/plaintiff/buyer could not be directed to deposit entire agreed sale price as agreement in question was bilateral in nature, binding the parties to perform their parts step by step---High Court set aside order of Trial Court as the Court while passing order in question was not sure whether ordered amount was balance amount or not

2023 SCMR 344

اقرارنامہ سودا بیع ثابت کرنے کے لئے نہ صرف دو گواھان حاشیہ کو پیش کرنا ضروری ھوتا ھے بلکہ رقم زربیعانہ کی ادائیگی کو بھی ثابت کرنا ضروری ھوتا ھے۔

2020 CLC 23 Peshawar

Agreement to Sell

Plaintiff had proved execution of agreement to sell through evidence of scriber and one marginal witness. Revision dismissed.