1. ' Mrs. QAISER IQBAL, J.- Plaintiff 'has resorted to file suit for specific performance of agreement to sell against the defendants.
2. ' Admittedly plaintiff has entered into an agreement of sale on 2-11-2002 with defendant No,1 for- self and as attorney of defendants Nos. 2 to 7, all daughters and sons of late Asif Ali Nasri, for sale of a-plot along with double storeyed house bearing No, 79-K, Block-2, P.E.C.H. Society (hereinafter referred to as disputed property) for the sake of brevity, in consideration of Rs,63,00,000. Part payment of Rs,5,00,000 wash paid through cheque at the time of signing of theagreement and Rs,50,000 was paid in cash. It was agreed between plaintiff and defendant No,1 that a sum of Rs,57,50,000 shall be paid to the defendant No,1 on execution of conveyance deed and delivery of peaceful possession. It is pleaded by the plaintiff as per clause (2) of the agreement, defendant No,1 was required to provide photocopies of the title documents for examination and verification for completion of sale transaction. As per covenant Nos. (3) and (5), transaction was required to be completed on or before six months from the date of the execution of sale agreement and defendant No,1 undertook to get the property vacated from the tenants of the dispute property.
3. Enabling her to deliver peaceful and vacant possession. Upon expiry of six months on 2-5-2003 the defendant No,1 failed to perform her part of contract. Defendant No,1 served a legal notice on the plaintiff Called upon him to fulfil terms and conditions of the sale agreement and to execute the sale-deed. Despite of the plaintiff's willingness and ability to fulfil his obligations, a legal notice was served. However, after exchange of correspondence between the parties, son of defendant No,1, approached the plaintiff and called upon him to execute sale-deed in higher sum, which was not accepted by the plaintiff. The plaintiff has proceeded to file suit seeking declaration for specific performance of the sale agreement followed by execution of sale-deed and delivery of possession, ' DefendantNo,1 filed written statement averred that Power of Attorney was not executed by two shareholders, who were not available at Karachi, sale agreement was not capable of performance.
4. Consequently, defendants Nos. 4 to 7, being co-owners of the disputed property were joined as party. Defendants Nos.2 and 3 had pleaded that they did not enter into an agreement to sell disputed property of the plaintiff, as the answering defendant had declined to execute Power of Attorney per request of their brother Arif Ali Nasri for the sale of house, no specific performance can be sought as per covenant No,(12) of the agreement, which was crossed by the plaintiff at the time of signing the agreement.
5. ' Upon pleadings of the parties following issues were framed:-
(1) Whether the plaintiff is entitled to the specific performance of the agreement to sale, dated 2-11- 2002 in presence of the objections of the defendants Nos.2 and 3?
(2) Whether the share of the defendant No,1 and her sons can be partitioned/conveyed and transferred to the plaintiff in view of the agreement to sale, dated 2-11-2002?
(3) Whether the plaintiff is_ entitled to any damages? If so, from whom?
(4) Whether the agreement of sale dated 2-11-2002 is also binding upon the defendants Nos. 2 and 3?
(5) What should the decree be?
6. ' I have heard Messrs Khalid Jawed Khan, Arif Khan and my findings on the above issues are as follows:- ISSUE NOS.1 AND 4: ' During the course of arguments Mr. Khalid Jawed Khan has contended that on account of the admitted position regarding execution of the sale-deed by defendant No,1 for-self and other co- owners in exclusion of defendants Nos.2 and 3, the contract was incapable of performance in terms of covenant of exhibit P.W.1/2. It is contended that in terms of sections 14, 15 and 16 of the Specific Relief Act, the transaction cannot be, specifically performed in exclusion of defendant Nos.
7. 2 and 3. It is next urged, time, was not the essence of the contract. By virtue of actions of defendants Nos. 2 and 3 agreement cannot be completed despite of the part payment of sale consideration by the plaintiff specific performance of sale being discretionary relief can be exercised by Court on equitable principle. Section 22 of the Specific Relief Act though not exhaustive provides some instances in which the specific relief of a contract may be refused by the Court in its discretion, alternative remedy available to the plaintiff is by way of compensation in terms of section 73 of the Contract Act for the loss suffered by the plaintiff om account of non- performance of the contract. Compensation for any loss or damage can be assessed by providing relief when a contract was not completed. It is to be seen as to what would be the effect of the agreement, which was not capable of performance as the compensation flows in consequence of breach. It was observed in PLD 1983 Karachi 63, that following rules for assessm ent of compensation on account of breach of contract can be gathered:-
(a) The aggrieved party is entitled to receive compensation for such loss or damages as is caused to them by the breach of contract (i) which naturally arose in the usual course of things from such breach or (ii) which parties knew when they made contract to be likely to result from the breach of it.
(b) Compensation will not be given for any remote or indirect loss or damage sustained by reason of the breach. Where, however, a case besides being one of mere breach of contract was additionally comprised of tortuous tortious acts committed by defendants, such case might form foundation for awarding compensation.
(c) Compensation is payable for the actual loss or damage caused.
(d) In case of breach of contract for sale of, goods generally the actual damage or doss caused to the aggrieved party is thedifference between the contract price and the market price available on the date or breach of contract.
(e) Where there is no evidence available as regards market rate on the date of breach, the rate prevalent on the, next nearest date or on a date within reasonable time of the date of breach is to be taken into consideration for the purposes of assessing damages.
(f) Every injury although, without loss or damage, would entitle plaintiff to a judgment. It is not always necessary that actual damage should be proved in order to that damage may be awarded and in actions for breach of contract nominal damages are recoverable although no actual damage can be proved.
8. ' Mr. Arif Khan, learned counsel for defendant No,1 has contended that partial specific performance can only be ordered in cases, strictly falling within the provisions of sections 14, 15 and 16 of the Specific Relief Act. Only those contracts can be specifically enforced which are capable of division, can be specifically performed by the parties, can be specifically enforced. However even an agreement or contract is such which is an individual agreement/contract consisting of single transaction not permitting splitting of transaction then such a case would not be covered in terms of sections 14, 15 and 16 of the Specific Relief Act. Contract to sell of the disputed property executed by the defendant No,1 on her behalf being ostensible owner as well as on behalf of the co-owners suggests that defendants Nos.2 and 3 were not bound by the contract, they did not execute power of attorney in favor of defendant No,1 to sell the disputed property. In support of the above contention, reliance is placed Alamdar Hussain v. Nazir Hussain 2004 SCMR 595 and in the case of Sinaullah and others v. Muhammad Rafiq 2005 SCMR 1408.
9. ' It is contended that defendants Nos. 2 and 3 were not party to the contract, they are not liable to pay damages claimed by the plaintiff.
10. ' In any view of the matter relief of specific performance of agreement is a discretionary relief and the Court should not pass any order in such a manner that no loss be caused to any person.
11. ' Plaintiff had claimed compensation in view of non-performance of the agreement to sell from the defendants. Since defendants Nos. 2 and 3 did not authorize defendant No,1 to enter into sale agreement on their behalf, therefore, they are not liable to compensate the plaintiff as claimed.
12. ' There is no yardstick or definite principle for assessing damages. Party claiming damages due to breach of contract must establish contract and extent of damages. Section 73 of the Contract Act,pertains to the compensation for loss or damage caused by breach of contract, which cannot be given for any remote and indirect loss or damage sustained by reason of the breach.
13. ' Mr. Khalid Javed Khan ,as contended that plaintiff has categorically stated in para. 17 of his affidavit-in-evidence that in the end of January, 2004, Arif Ali Nasri approached him that sale-deed could be executed provided plaintiff agrees to pay a higher price of Rs,70,00,000 instead of Rs,63,00,000. Plaintiff further deposed that for purchasing the disputed property, he sold, his apartment situated stunted in P.E.C.H.S. Karachi and shifted to a rented premises on account of the defendant failure to fulfil his part of obligation under the agreement. Plaintiff has suffered inconvenience, agony, mental torture. Defendant No,1 denied the above allegations. Plaintiff did not specifically claim the compensation and mesne profits. Plaintiff did not produce evidence regarding market price on relevant dates, therefore, no decree for damages against the defendant No,1 can be assessed. In the absence of specific allegation regarding the market rate, I am constrained to order E the defendant No,1 may refund a sum of Rs,5,50,000 to the plaintiff along with interest at the rate of 14% per annum from 2nd April, 2002 till this date and future interest at the same rate till realization of the entire amount. Issues Nos. 1 to 4 are answered accordingly.
14. ISSUE NO.5 ' Suit is decreed in above terms against defendants Nos.1, 4 to 7 with cost throughout, whereas suit against defendants Nos. 2 and 3I stands dismissed.