MUHAMMAD TASNIM, J. --- This is an application C.M.A. No. 969/2010) under Section 151, C.P.C. Filed by )laintiff, praying therein that defendant be directed to deposit he amount of Rs. 55,50,000/- with the Nazir of this Court ind the same be invested in profitable scheme.
2. Notice of this application was served upon the defendant , who filed his counter-affidavit on 17.3.2010. Oday after hearing the parties' counsel I had allowed the bresaid application in Court by short order, which is quoted "1. For the reasons to be recorded separately C.M.A. No. 969/2010 is allowed defendant is directed to deposit an amount of Rs. 55,50,000/- with the Nazir of this Court within one month. On receipt of aforesaid amount Nazir shall invest the entire amount in the profitable Government securities. Entire amount alongwith profit shall be given to the succeeding party at the end of the proceedings.
2 & 3. In view of above both applications (C.M.A. No. 970/2010 & C.M.A. No. 971/2010) are not pressed in view of above order, which are accordingly disposed of"
3. The facts leading to the present suit as set out in the plaint are that defendant who is owner of the suit property entered into agreement to sell with the plaintiff on 26.9.2009, in respect of plot No. 107-C measuring 90 square yards having shops on ground floor, at B-Commercial Area, Phase-I, Pakistan. Defence Officer Housing Authority, Karachi against the total sale consideration of Rs.
3,70,00,000/-. It is the case of plaintiff that he paid an amount of Rs. 55,50,000/- to the defendant on 26.9.2009, such amount was acknowledged through receipt dated 26.9.2009 executed by the defendant. It is further case of the plaintiff that in terms of clause-3 of the agreement entered into between the parties the remaining balance of Rs. 3,14,50,000/- was to be paid by the plaintiff to the defendant within three months from the date of signing of the agreement on or before 20th December, 2009. It is further case of the plaintiff that at the time of receiving full and final payment defendant had to execute conveyance-deed in respect of suit property in the name of plaintiff and he was obliged to hand over the vacant physical possession of the said property alongwith title documents.
4. It is claimed by the plaintiff that after signing the agreement and accepting the amount defendant avoided to complete the transaction. In the circumstances plaintiff through his Advocate sent a letter dated 15.12.2009 to the defendant at the address given in the sale agreement asking the defendant to complete the transaction as the date i.e. 20.12.2009 is approaching, but the defendant had not, so far, provided requisite documents to plaintiff enabling him to finalize the transaction, but such notice was returned undelivered.
5. In the circumstances, the plaintiff addressed another letter dated 31.12.2009 through his Advocate to the defendant at his Karachi Address as also at Lahore address, stating therein that since in terms of sale agreement dated 26.9.2009 defendant has failed to finalize the transaction in respect of suit property within the stipulated time under the agreement dated 26.9.2009, revoked the sale agreement and required the defendant to return the amount received by the defendant from the plaintiff within three days of the receipt of the letter. No reply was received by the plaintiff from the side of the defendant, in the circumstances plaintiffs counsel served another notice dated 19.1.2010 requiring the defendant to return the amount received by the plaintiff. Thereafter he filed the present suit alongwith listed application.
6. The defendant after service filed counter- affidavit, and took the stand that plaintiff has filed the present suit with male fide intention and with ulterior motives on false grounds. It was also claimed by defendant that plaintiff has filed present suit illegally to wriggle out from the agreement of sale entered into between the parties. The defendant also denied to have received the letters sent on behalf of the plaintiff. It was further claimed by the defendant that he was always ready and willing to perform his part of obligation. However defendant admitted the execution of agreement dated 26.9.2009 and also admitted the receipt of Rs. 55,50,000/- from the plaintiff.
7. I have heard the learned counsel for the parties and perused the record.
8. Learned counsel for the plaintiff has submitted that defendant has deliberately avoided the execution of sale-deed in favour of plaintiff within the time agreed between the parties. He has further argued that after making payment of Rs. 55,50,000/- plaintiff has been running after defendant for execution of sale-deed but the defendant avoided on one pretext to other. Learned counsel for plaintiff argued that number of communications, as stated above, were addressed on behalf of the plaintiff, but none was replied by the defendant deliberately. Learned counsel for the plaintiff further submits that on the one hand defendant avoided execution of sale-deed in favour of plaintiff and on the other hand he wants to usurp the amount paid by the plaintiff to him. He further claimed that not a single letter has been received from the side of the plaintiff nor the photostat copies of the title documents were made available to the plaintiff nor no-objection certified from the relevant authorities in respect of dues were obtained by the defendant in respect of suit plot.
9. On the other hand learned counsel for defendant has argued that present suit has been filed with mala fide intention just to get out from the agreement. Learned counsel for defendant further argued that present application has been made with male fide intention just to harass the defendant. Learned counsel for defendant submitted that application merits not consideration and is liable to be dismissed.
10. It is admitted position on record that agreement to sale dated 26.9.2009 was entered into between the parties. It is also admitted on record that amount of Rs. 55,50,000/- was received by the defendant as "token money. It was agreed between the parties in terms of agreement that defendant shall clear all the dues in respect of property and obtain non-objection certificate from the relevant authorities. It was agreed between the parties that balance sale consideration shall be paid by the plaintiff to the defendant within three months from the date of signing of the agreement. It was further agreed between the parties that on receiving full and final payment the property shall be conveyed to the plaintiff by the defendant. But from the record it appears that plaintiff after making the payment of Rs. 55,50,000/- has been running after the defendant, who avoided execution of sale-deed. From the record it appears that numbers of letters were served upon the defendant at his Karachi address and on Lahore address, but none of the letter was responded to by the defendant. Neither any reply was given to the plaintiff nor any legal proceeding in respect of transaction was initiated by the defendant. It is also admitted position that vide letter dated 31.12.2009 the agreement dated 26.9.2009 was revoked by the plaintiff with notice to defendant. Since the agreement dated 26.6.2009 has been revoked and property has not been conveyed in favour of plaintiff by defendant, there is no justification of keeping the money of the plaintiff by the defendant with him. In this case evidence of the parties is yet to be recorded, thereafter matter shall be decided on merits.
An apprehension has been shown by the learned counsel for plaintiff that there is likelihood that defendant may wind up his business in Karachi and may proceed elsewhere and if, at the end of the day, the decree is passed in favour of plaintiff same 'shall not be executable. He prayed that application be granted for the aforesaid reason. /order accordingly.