' AMIR RANI MUSLIM, J.---Instant direct appeal has been filed against the judgment dated 22-7- 2008 passed by the learned Islamabad High Court, Islamabad, whereby the R.F.A. Filed by the present appellant was partly allowed and the case was remanded to the trial Court.
2. The material facts for the purpose of dealing with the instant proceedings are that a plot bearing No,94-E measuring 600 Sqr. Yards, situated in Jinnah Avenue, Sector F-7/G-7, Blue Area Islamabad, was allotted to one Din Dar of AGM, Mercantile Cooperative Finance Corporation Ltd, who entered into a sale agreement with one Muhammad Taj-respondent No,l. We may observe that the aforesaid sale agreement was not placed on record by any of the parties. Muhammad Taj (respondent No,1) through another sale agreement dated 10-2-2000, agreed to sell the subject plot to the respondent No,2 Javed Iqbal for a total sale consideration of Rs,5,50,00,000 (five crores and fifty lacs only). This sale agreement was signed by the respondent No,3 Ch. Khuda Dad on behalf of respondent No,2. Muhammad Taj received a sum of Rs,2,57,00,000 (two crores and fifty-seven lacs only) as earnest money. The balance sale consideration of Rs,2,93,00,000 was agreed to be paid by the respondent No,2 to the respondent No,1 in two installments, out of which a sum of Rs,10,000,000 (Rupees ten millions only) was agreed to be paid by the respondent No,2 to the respondent No,1 within three months of the signing of the sale agreement and the remaining balance payment of Rs,19,300,000 (Rupees nineteen millions three hundred thousand only) was to be paid at the time of transfer of the above said plot in favour of the respondent No,2 and or to his nominee, within a period of six months of the execution of above said sale agreement.
3. On 22-3-2003, the respondent No,2 executed another sale agreement of the subject plot in favour of the present appellant for a total sale consideration of Rs,15,00,00,000 (Rupees fifteen crores only), through Ch. Khuda Dad, the respondent No,3, as his special Attorney. A sum of Rs,2,50,00,000 (Rupees two crores and fifty lacs only) was paid by the appellant as earnest money to the respondent No,2, receipt of which was acknowledged by him through the sale agreement dated 22-3-2003. The balance sale consideration of Rs,12,50,00,000 (Rupees twelve crores and fifty lacs only) under the terms of the sale agreement was to be paid by the appellant to the respondent No,2 (seller) in the following manner:--
(i) Rs,2,50,00,000 (Rupees two crore and fifty lac only) on or before 15-4-2003.
(ii) Rs,10,00,00,000 (Rupees ten crore only) within a period of four months from the date of signing of the agreement, simultaneously upon getting the said plot transferred in the CDA by the seller through allottee in the name of the purchaser or his nominee(s), as desired by the purchaser.
4. Pursuant to the sale agreement dated 22-3-2003, the appellant has paid further part payment of Rs,50,00,000 (Rupees fifty lacs only) on 26-4-2003, through Cheque of Prime Commercial Ltd.
Islamabad, in the 'tame of Ch. Javed Iqbal (respondent No,2), which was received by Ch. Khuda Dad (respondent No,3) against proper receipt. A further amount of Rs,50,00,000 (Rupees fifty lacs only) was paid by the appellant through another Cheque dated 3-5-2003 of the Standard Chartered Bank, Ltd. Islamabad against proper receipt. The appellant further claims that on 17-4- 2004 an amount of pound sterling 65,000 was credited to the account of Altaf Hussain, the brother of Ch. Khuda Dad (respondent No,3), at the request of Ch. Khuda Dad. In this manner the appellant claims to have paid a total amount of Rs,5,00,00,000 (Rupees five crore only) to Javed Iqbal through Ch. Khuda Dad, his special attorney.
5. The other terms and conditions of the sale agreement of the subject plot agreed between the parties in regard to its transfer were as follow:-- "(4) that since the said plot is currently under litigation as such to get it cleared from the litigation within the stipulated period of four months i,e, before submission of the necessary transfer documents in CDA in respect hereof, shall be the responsibility of the Seller. In case any further amount is required by the Seller to meet the expenses with regard to clearance of the plot from litigation, the purchaser shall pay such amount to the Seller as Additional Advance and later on deducted the same out of the balance sale consideration payable by the purchaser to the Seller.
(5) that the Seller undertakes to complete all the formalities to get the Plot transferred in CDA in the name of the Purchaser or his nominee(s) through the original allottee and hand over possession of the Plot along with the original documents in respect of this Plot to the Purchaser simultaneously upon receipt of the balance payment as per mentioned in clauses 3 and 4 above.
(6) that in case the transfer of the plot is not effectuated within the said period of four months due to non-clearance of the litigation, and if in this process the Seller lost ownership of the said Plot and becomes unable to transfer the plot to the Purchaser then the Seller shall be liable to pay compensation to the purchaser @ the prevailing Bank Rate.
(7) that in case the transfer of the said Plot is not executed within the stipulated time period of four months due to non-clearance of the litigation, and this time period prolongs due to the litigation process and it becomes evident from the circumstances that the Seller shall be able to get the said Plot and be able to transfer it to the Purchaser than Purchaser shall not claim for the compensation.
(8) that the outstanding dues against this Plot including tax etc., if any upto the date of its transfer shall be got cleared/paid by the Seller, while the transfer fee etc. Shall be paid by the Purchaser.
(9) that the Seller reserves the right to forfeit the total amount received from the Purchaser, if the Purchaser backs out from this deal or fails to pay the balance amount to the Seller.
(10) if the Seller withdraws from this deal or fails to get the Plot transferred in CDA through the original allottee in the name of the Purchaser or his nominee (s) simultaneously upon receipt of the balance payment, even after clearance of the Plot through the existing litigation, then the
(a) Seller shall return the amount received from the Purchaser along with an equal amount as penalty to the Purchaser in lumpsum without any delay or hesitation; OR
(b) Purchaser would be competent to get the Plot transferred in his name or in the name of his nominee (s), through a Court of Law, at the risk and cost of the Seller.
(11) Operation of clause 10(a) above or clause 10(b) above shall be at the discretion of the Purchaser."
6. On 30-12-2004 the appellant filed a suit for specific performance of the sale agreement dated 22-3-2003 against the respondents Nos,1 and 2 impleading Ch. Khuda Dad (respondent No,3) and his two sons namely Aamir Shakeel (respondent No,4) and Umar Shehzad (respondent No,5), Muhammad. Aslam (respondent No,6) and Suleman Khurshid (respondent No,7), partners of respondents Nos,4 and 5, as defendants. The respondent No,3 was impleaded as defendant as he acted as special attorney of the respondent No,2 and had executed the sale agreement dated 22- 3-2003 on his behalf. The respondents Nos,4 to 7 were arrayed as defendants because the respondent No,1, subsequently vide agreement to sell dated 17-7-2004 agreed to sell the subject plot to them, and respondent No,3 on the basis of power of attorney executed by, the respondent No,1, has transferred the subject plot in favour of the respondents Nos,4 to 7. In the suit, the appellant had prayed for the following reliefs:- ' In the circumstances it is therefore prayed that a decree for possession through specific performance of agreement dated 22-3-2003 be passed in favour of the plaintiff against the defendants against payment of Rs,10 Crores and it be directed that the suit plot be duly transferred and its possession be delivered to the plaintiff, as consequential relief the defendants be restrained from further entering into sale agreement, 'alienating/transferring the suit plot in the name of anyone else except the plaintiff and/or to change the nature of the suit plot or to raise any construction on the suit plot be passed in favour of the plaintiff against the defendants with costs through out. Any other equitable relief to which the plaintiff be entitled may also be granted."
7. It was averred in the plaint that the appellant was always willing to perform his part of contract and that he came to know two days prior to the filing of the suit that the subject plot was transferred by the respondent No,1 through respondent No,3 in favour of the respondents Nos,4 to 7, in the record of the Capital Development Authority. The suit was contested by the defendants Nos,1, 2 and 3 who filed their written statements separately while the defendants Nos,4 to 7 filed joint written statement, taking legal as well as factual pleas. Since the Capital Development Authority was also arrayed as defendant No 8, it also filed its written statement by taking different grounds.
Out of the divergent pleadings of the partie the trial Court struck the following issues:-
(i) Whether the plaintiff has no cause of action and locus standi to file the instant suit and the plaint is liable to be rejected under Order VII, Rule 11, C.P.C? OPD.
(ii) Whether the suit is not maintainable in its present form? OPD
(iii) Whether the suit is barred by section 21 of the Specific Relief Act? OPD.
(iv) Whether the plaintiff has not come to the Court with clean hands? OPD.
(v) Whether the plaintiff is estopped by his words and conduct to file the instant suit? OPD.
(vi) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD.
(vii) Whether the plaintiff is entitled to the relief as prayed in the plaint? OPP.
8. After recording the evidence adduced by the parties, the trial Court dismissed the suit of the appellant. Feeling aggrieved, the appellant filed Regular First Appeal before the learned Islamabad High Court, Islamabad, which was partly allowed and the case was remanded back to the trial Court, by the impugned judgment, concurring with the trial Court on the issue that the appellant was not entitled to a decree for specific performance. The learned High Court, however, remanded the case to the trial Court to record findings on the issue as to whether the respondent Javed Iqbal was responsible for the breach of sale agreement dated 22-3-2003. The trial Court was further directed by the impugned judgment to decide the .Issue of entitlement of the appellant in regard to the recovery of the payments made by the appellant towards sale consideration to the respondent Ch. Javed Iqbal and also to determine whether the appellant was entitled to for damages for the breach of contract, against which judgment the present proceedings have been filed by the appellant.
9. It is contended by the learned counsel for the appellant that the learned High Court and the trial Court were in error, in holding that there was no material brought on record by the appellant to establish conspiracy between the respondents Nos,1, 2, 3 and 4 to 7 to deprive the appellant from subject plot. The learned counsel in this respect has contended that the evidence brought on record by the appellant was misread by the trial Court and the learned High Court. He submitted that the role of the respondent No,3, who was signatory to the sale agreement dated 22-3-2003 with the appellant on behalf of the respondent No,2, was completely overlooked by the courts below while recording such findings.
10. He next contended that the sale agreement of the appellant with the respondent No,2 was executed through the respondent No,3, who had received Rs,2,50,00,000 (two crores and fifty lacs).
A further amount of Rs,50,00,000 (Rs,Fifty lacs) was received by the respondent No,3 on behalf of the respondent No,2 on 26-4-2003 against proper acknowledgment and Rs,50,00,000 (Rs, Fifty lacs only) were paid by the appellant on 3-5-2003 after the target date. On 28-4-2004, in addition to the aforesaid amounts, the appellant claims to have paid U.K Pound Sterling 65,000 towards part payment through telegraphic transfer in the account of the brother of the respondent No,3 namely Altaf Hussain, on instructions from the respondent No,3: He submits that the amounts so paid were proved by the appellant, who entered in the witness box to substantiate the contents of the plaint as P. W.1 and has examined Muhammad Almas Abbasi, a Property Dealer, as P.W.2, through whom the sale of the subject plot was negotiated. According to the appellant's counsel, P.W.2 was also the attesting witness of sale agreement (Exh.P.1) and receipts of payments (Exhs.P.2 and 3). The appellant also examined Israr Ahmed as P.W.3, who was the attesting witness of the receipts, which were produced as Exh.P.2 and 3. The appellant examined Nusrat Wafa as. P.W.4, who was the Manager Operations, Prime Commercial Bank, F-10 Markaz Branch, Islamabad, through which bank, the appellant has transferred the U.K pound sterling 65,000 in the account of Altaf Hussain, the br.Other of the respondent No,3.
11. The learned counsel for the appellant further contended that as against this the respondent No,2 did not appear in the witness box and instead appointed Muhammad Abbas D.W.2 as his special attorney to appear and give evidence on his behalf. He submits that the special power of attorney dated 9-4-2006 in favour of Muhammad Abbas (Exh.D-2) executed by respondent Javed Iqbal, was a fabricated document as it did not bear his signature. He submitted that the respondent No,2 willfully avoided appearance in the witness box and appearance of Muhammad Abbas as his special attorney was unauthorized. The evidence of Muhammad Abbas had no evidentiary value as he was not acquainted with the facts of the case, nor witness to the sale transaction nor was present at the time of meetings held between the appellant and the respondents Nos,2 and 3.
12. He next contended that the respondents Nos,2 and 3 were represented by Mr. Syed Asad Ali Saeed, Advocate, and contradictory pleas in regard to the appointment of respondent No,3 as special attorney of the respondent No,2. Were taken in their written statements. He submits that the evidence of respondent No,3 as D. W.1 was also full of contradictions. He next contended that the learned High Court as well as the trial Court overlooked the import of section 23 of the Specific Relief Act while recording findings against the appellant that he was not entitled to the decree of specific performance. In support of his contentions, he has relied upon the judgments in the cases of Abdul Aziz v. Fazal Karim (1989 SCM R 1456), Muhammad Farouk Dossa v. MRs, Qudsia Dossa (1990 M LD 2016), Golam Ali Kazi v. Saijuddin Howldar (1969 DLC 246), Sakalaguna Nayudi v. Chinna Munuswa mi Nayakar (AIR 1928 PC 174) and Shyam Singh v. Daryao Singh (dead) by L.Rs, (AIR 2004 SC 348).
13. He next contended that both the courts below were in error in holding that the sale agreement of the appellant with the respondent No,2 was not enforceable in law, as the appellant did not make the part payments of sale consideration within the terms agreed under the sale agreement.
He contended that in respect of the immovable property, time is never the essence of the contract, particularly when seller accepts the part payment after the stipulated period, and time frame fixed under the agreement looses its significance. In support of his contentions, he has relied upon the cases of Ghulam Nabi and others v. Seth Muhammad Yaqoob (PLD 1983 SC 344), Mst. Amina Bibi v.
Mudassar Aziz (PLD 2003 SC 430) and Mst. Mehmooda Begum v. Syed Hassan Sajjad (PLD 2010 SC 952).
14. He next co ended that the prayer for damages in the plaint did not disentitle the appellant from claiming the relief of specific performance. He contended that section 20 of the Specific Relief Act clearly stipulates that claim of damages is no bar to seek relief of specific performance of a sale agreement. He submitted that the trial Court as well as the learned High Court overlooked this provision of law while recording findings on the issue against the appellant. In supports of his contentions, he has relied upon the case of Mst. Khair-ul-Nisa v. Malik Muhammad Ishaque (PLD 1972 SC 25). He submits that the evidence which has been brought on record by the appellant establishes his right to seek enforcement of the sale agreement, particularly when the respondent No,2 has avoided and or has failed to appear in the witness box to substantiate the contents of his written statement.
15. As against this, the learned counsel representing the respondent No,1 has contended that there was no privity of contract between his client and the appellant, therefore, no relief can be granted to the appellant against the respondent No,1. He next contended that the respondent No,1 never authorized the respondent No,2 to enter into the sale agreement with the appellant, therefore, the terms of the sale agreement dated 22-3-2003 in respect of the subject plot could not bind the respondent No,1, who being exclusive owner, was within his right to sale and or transfer the subject plot to the respondents Nos,4 to 7.
16. The _learned counsel for respondents Nos,4 to 7 has contended that the respondent No,2 was not competent to enter into a sale agreement with the appellant, as he was not the owner of the subject plot. According to him, the sale agreement entered into between respondent No,2 through respondent No,3 with the appellant was nullity in the eyes of law and was not enforceable.
17. His next contention was that the sale agreement between the respondent No,2 and the appellant was a commercial contract, and in such like cases, the time is always the essence of the contract. He further contended that the respondents Nos,4 to 7, were bona fide purchasers for consideration without notice and were protected under section 27(b) of the Specific Relief Act and no relief can be granted to the appellant against them in these proceedings. He next contended that on the issue of specific performance of the contract, the trial Court as well as the learned High Court has rightly recorded the finding against the appellant holding therein that the appellant was not entitled to the decree of specific performance, and these concurrent findings of facts could not be upset by this Court. He further contended that even if another view on the evidence is possible, then too, this Court will not interfere to upset concurrent findings on fact. In support of his contentions, he has relied upon the cases of Alamgir Khan v. Haji Abdul Sittar Khan (2009 SCM R 54), Sardar Muhammad v. Akram (2002 SCM R 807) and Waris Khan v. Mst. Zainab Nisa (1997 SCM R 526). He further contended that the relief of specific performance of a contract is a discretionary relief which has been rightly declined by the trial Court as well as by the learned High Court, and the appellant in such like case, could not seek a decree for specific performance of a contract, as a matter of right.
18. We have heard the learned counsel for the parties and have perused the record. All the parties admit that the respondent No,1 purchased the subject plot from Din Dar, AGM Mercantile Finance Corporation, Ltd. By a sale agreement where-after the respondent No,1 went in litigation with Din Dar, which litigation continued on the date when on 10-2-2000, the respondent No,1 entered into sale agreement (Exh.D.W.1/2) with the respondent No,2 through respondent No,3 in respect of the subject plot. On 22-3-2003, the respondent No,2 through respondent No,3 entered into another sale agreement (Exh.P.l) with the appellant in respect of the subject plot. On 26-2-2004, the respondents Nos,1 and 2 cancelled the sale agreement dated 10-2-2000 by cancellation deed (Exh.D.W.1/3). On 16-7-2004, the title of the subject plot was conferred on respondent No,1 (Exh.D.W.6/2), who sold the subject plot to respondents Nos,4 to 7 (Exh.D.W.3/1). In this backdrop whether the sale agreement of the appellant with the respondent No,2 (Exh.P.1) was enforceable in law against respondents and whether on 17-7-2004 the respondent No,1 was competent to sell the subject plot to the respondents. Nos,4 to 7, besides the effect of the cancellation deed dated 26-2- 2004 (Exh.D.W.1/3) between respondents Nos,1 and 2 and subsequent sale of the subject plot to the respondents Nos,4 to 7. Neither the trial Court nor the learned High Court have applied their mind while declining relief of specific performance to the appellant. Both the courts proceeded on the wrong premise that the respondent No,1 was the exclusive owner of the subject plot on the date of the sale agreements Exh.D.W.1/2 and Exh.P.1, which fact was contrary to the record, therefore, sale agreement (Exh.P.1) was not enforceable either against respondent No,2, inter alia, on the ground that he did not have ,title of the subject plot, nor against respondent No,1, who was not party to it. In law, there is no bar for a prospective purchaser under a sale agreement, from alienating his interest in immovable property acquired by virtue of a sale agreement to any other person through another sale agreement. In the case in hand, it has come in evidence that the respondent No,2 on execution of the sale agreement (Exh.P.1) has passed on all the original documents inclusive of the earlier sale agreement dated 10-2-2000 (Exh.D.W.1/2), to the appellant. On perusal of the sale agreement (Exh.P.1), we have noticed that it specifically mentions in its preamble, the factum of earlier sale transactions of the subject plot. For the sake of convenience, the relevant clause of the sale agreement (Exh.P.I) is reproduced hereunder:-- "WHEREAS the seller is the owner of Plot No,94-E (measuring 600 Sq. Yds) situated at Jinnah Avenue (Sector F-7/G-7), Blue Area, Islamabad, (hereinafter called the plot'), by virtue of its purchase from the original allottee, Mr. Din Dar son of Karim Bakhsh, A.G.M, Mercantile Co- operative Finance Corporation, Ltd., Kamran Market, Rawalpindi, holder of NIC NO, vide allotment letter No, dated through Mr. Muhammad Taj son of Ghulam Qadir, resident of House No,23, Sector F-I, Tehsil and District Mirpur (A.J.K), holder of N.I.C. No,705-32-076392, under a separate sale agreement and the Seller is empowered to sell the said plot onwards. AND WHEREAS, the Seller intends to sell the above said plot onwards and the purchaser has agreed to purchase the same."
19. The appellant has, in part performance of sale agreement, paid substantial amount of rupees five crores to the respondent No,2 through respondent No,3 under a valid sale agreement (Exh.P.1), against proper receipts disclosing the mode of payment. The balance sale consideration of Rs, 10,00,00,000 one crore) was subject to the transfer of the plot, which terms were covered by clause 3 and other clauses of Exh.P.1. The amount paid by the appellant to the respondent No,2 through respondent No,3 has been proved by him by examining P.Ws.2 and 3 namely Muhammad Almas Abbasi and Israr Ahmed Afzal, who appeared in the witness box in support of the plea of the appellant on these issues. Even D.W.2, special attorney of the respondents Nos,2 and 3, who appeared in the witness box have not disputed to have received such amounts of sale consideration.
20. In such circumstances, in order to defeat the interest of the appellant, the respondent No,2 in collusion with the respondent No,1, has fraudulently executed a cancellation deed dated 26-2-2004 (Exh.D.W-1/3), by which the earlier sale agreement dated 10-2-2000 was cancelled by them in order to cover up their unauthorized act, and the respondent No,3 was signatory to the cancellation deed as an attesting witness.
21. The cancellation deed (Exh.D.W.1/3) between the respondents Nos,1 and 2 on the face of it was hit by the provisions of section 53 of the Transfer of Property Act, which provides that if a fraudulent transfer is made with intent to defeat the interest accrued to a party which it has acquired through a sale agreement, then such party can enforce the same not only against the vendor but also against the person from whom such a vendor has acquired the interest. The word "Creditor" used in section 53 of the Transfer of Property Act is not to be construed in a narrow sense while interpreting the section. The word "Creditor" would mean and include the one, who has a right to require of another the G fulfillment of a contract or obligation and or one to whom another owes the performance of an obligation. In the case in hand, the appellant is covered by the word "Creditor" and his interest is fully protected by section 53 (ibid). The deed of cancellation (Exh.D.W.1/3) signed by respondents Nos,1 and 2 and the subsequent transaction through sale agreement dated 17-7- 2004 executed by respondent No,1 with respondents Nos,4 to 7, coupled with the transfer of the subject plot in favour of the respondents Nos,4 to 7 by the respondent No,3, as attorney of respondent No,1, are nullity being fraudulent instruments signed and or executed to transfer the subject plot with the object to defeat the interest acquired by the appellant, .By virtue of Exh.P.1. The role of the respondent No,3 throughout the transactions was mischievous. He was closely related to the respondent No,2 and as his special attorney signed sale agreement dated 10-2-2000 (Exh.D.W.1/2), as vendee with the respondent No,l. It is the respondent No,3, who signed the second sale agreement dated 22-3-2003 (Exh.P.1), as attorney of respondent No,2 (vendor) with the appellant and received sale consideration, at times, from the appellant. After receiving the amounts on behalf of respondent No,2, he stood marginal witness to deed of cancellation (Exh.D.W.1/3) without seeking cancellation of the sale agreement (Exh.P.1) and or intimating the appellant about the cancellation of earlier sale agreement dated 10-2-2000. He, on execution of sale agreement (Exh.D.W.3/1) by the respondent No,1 with the respondents No,4 to 7, transferred the subject plot in favour of respondents Nos,4 to 7, without disclosing this fact to the appellant and or cancelling the sale agreement (Exh.P.1). He was the father of respondents Nos,4 and 5 whereas respondents Nos,6 and 7 were the partners of respondents No,4 and 5. Moreover, the sale agreement dated 10-2-2000 (Exh.D.W.1/2) was cancelled on 26-2-2004 after four years of its execution for which no plausible explanation has been offered by the respondents Nos,1 to .3 to justify it.
22. Furthermore, the plea of the respondents Nos,4 to 7 that they were not in knowledge of the sale agreement (Exh.P.1), does not appeal to the reason, as the respondent No,3 was the father of respondents Nos,4 to 5 and acted as special attorney of the respondent No,2 when he executed sale agreement Exh.P.1. The element of bona fide notice in the given circumstances, was missing throughout. The instruments signed at times by the parties clearly establish that they were signed and or executed by the respondents with intent to defeat the interest of the appellant.
23. We are conscious of the fact that section 53 of the Transfer of Property Act clearly postulates that mere agreement to sell does not, by itself, create an interest in a property nor confers any right in favour of the vendee except to seek specific performance of the agreement. The contents of sale agreement (Exh.P.1) have not been denied by any of the parties. It is also not denied that no notice of its cancellation was given to the appellant either by the respondent No,2 and or by the respondent No,3, who received substantial amount of rupees five crore towards part payment of sale consideration. It is also a matter of record that the appellant has deposited the balance sale consideration with the trial Court to show his bona fide to perform his part of contract. Under these circumstances, applying the principle as laid down by the provisions of section 53 of the Transfer of Property Act read with section 54 of the Act, the appellant was well within his rights to seek enforcement of sale agreement (Exh.P.1) not only against the respondents Nos,2 and 3, but also against the respondent No,1, who being trustee of the respondent No, 2 was debarred from entering into a deed of cancellation with respondent No,2 and further, in law, did not have the right to alienate the subject plot in favour of respondents Nos,4 to 7 on acquiring title on 16-7-2004. The respondents Nos,4 to 7, on the other hand, cannot claim to be the bona fide purchasers without notice for consideration, as this protection is only available if it is proved that the party had paid sale consideration without knowledge of the earlier dispute in regard to the immovable property.
The respondents Nos,4 to 7 had failed to ,prove at trial the mode by which the huge amount of sale consideration was paid by them and on the face of it the sale transaction between the respondent No,1 and respondents Nos,4 to 7 was a sham transaction intended to defeat the interest of the appellant.
24. The contention of the learned counsel for the respondents Nos,4 to 7 that (Exh.P.1) was a commercial contract and time was made essence of the contract is also without force, as according to the learned counsel, the appellant has failed to pay the second installment of rupees two crore and fifty lacs within the stipulated time and, therefore, was not entitled to seek specific performance of the contract. The question whether the time mentioned in the sale agreement Exh.P.1 was or was not of essence of the agreement is a question which depends on the facts of each case. The real issue that certain time was mentioned in the sale agreement Exh.P.1 for performance of an act would not necessarily lead to the conclusion that the time so fixed is essence of the contract. The real intention of the parties to the sale agreement has to be deduced from all the surrounding circumstances of the case. In the case in hand, the respondent No,3 has ,accepted the payment of 2nd installment from the appellant after the target date on behalf of the respondent No,2, for which no plausible explanation has been offered either by respondent K No,2 or by respondent No,3. In such an eventuality, the appellant is not debarred from seeking enforcement of it owing to the conduct of the respondents Nos, 2 and 3. The case-law referred to herein-above by the learned counsel for the appellant is relevant and covers the case in hand.
25. The contention of the learned counsel for the respondents Nos,4 to 7 that the appellant has sought damages in the prayer clause of the suit and, therefore, was debarred from seeking enforcement of sale agreement (Exh.P.1) is also based on misconception of law. The provisions of section 20 of the Specific Relief Act clearly entitle the appellant to seek a decree for specific performance of the contract though a sum mentioned in the sale agreement Exh.P.1 as the amount to be paid in case of its breach. The trial Court as well as the learned High Court did not advert to the relevant law and have proceeded on wrong premise while recording findings against the appellant on the issue.
26. We, for the aforesaid reasons, hold that the appellant is entitled to the decree of specific performance of sale agreement (Exh.P.1) against the respondents and cancellation deed, sale agreement dated 17-7-2004 to 7, by respondent No,1 through respondent No,3, are nullity in the and transfer, documents of subject plot in favour of respondents Nos,4 L eyes of law and are of no legal consequence. Consequently, the impugned judgment of the learned High Court as well as the judgment of the trial Court are set aside and the suit of the appellant is decreed. This appeal is allowed in the above terms with costs throughout.