' SADIQ HUSSAIN BHATTI, J.---The appellant is aggrieved by the order dated 15-3-2010 passed by a learned single Judge of this Court on CMA Nos. 9999 and 10861. Of 2008 in Suit No, 1453. Of 200 whereby the appellant was directed to handover the possession of the vehicle i,e, "MITSUBISHI PAJERO (BK), 2.8L TCL-D GLX 5-DOOR INVESC II 4 SPEED AUTOMATIC model 2008 (hereinafter referred to as "the vehicle") to the respondents Nos.1 and 2.
2. Brief facts of the case are that respondents Nos.1 and 2 booked the above vehicle with the appellant who quoted Rs,44,99,000 as the price of the vehicle. The offer contained two conditions viz. (1) all prices are provisional and subject to change without any prior notice, however, price prevailing at the time of delivery shall be charged and (2) Payment must be made in advance in favour of Dewan Mushtaq Motors Limited i,e, the appellant through Pay Order. The delivery of the vehicle was undertaken to be made between 90 to 120 days after receiving full payment. Upon receiving such offer the plaintiff made arrangement with the Orix Leasing Pakistan Limited, respondent No,3 who on 21-4-2008 made payment of Rs, 44,99,000 to defendant No,1 for the "2.8 L vehicle" along with a letter titled as "Confirmed Purchase Order". The said pay order was encahsed by the appellant on 25-4-2008. After the lapse of the stipulated period within which the appellant was required to deliver the vehicle to the respondent No, 1, the respondent No,1 asked for delivery of the vehicle but it was avoided on one pretext or the other and ultimately on 8-9-2008, the appellant wrote a letter to his Dealer, respondent No,4, informing about the. Imposition of 50% additional Regulatory Duty on 2500 CC plus vehicles and asked it to demand from the respondents Nos.1 and 2 a sum of Rs,2,350,000 on account of price increase. The letter further stated that the customer i,e, respondent No,1 and Orix Leasing may be informed immediately. The respondents Nos.1 and 2 disputed this demand as according to them the vehicle was ought to have been delivered on or before 20-8-2008 and, therefore, they were not liable to pay the newly imposed duty on 2-9-2.008. As the appellant failed to deliver the vehicle to the respondents Nos.1 and 2, they filed a suit for specific performance bearing Suit No, 1453 of 2008 wherein they also filed an application for interim relief which was allowed vide the impugned order, hence the present High Court Appeal.
3. Learned counsel for the appellant submitted that the delivery period was 90 to 120 days after receipt of full payment and as full payment was not made by the respondents, therefore, order Was not, placed With the manufacturer and, therefore, as per agreed terms and conditions, the respondents were liable pay any increase in the price of the vehicle. Learned counsel further stated that initially an amount of Rs,44,99,000 was paid by the respondents in respect, of 3200 CC Jeep but, later on, on 6-6-2008, it was finally decided that the respondents Nos.1 and 2 want 2800 CC jeep and not 3200 jeep. Thus, the period of delivery is to be counted from 6-6-2008 and, therefore, the respondents Nos.1 and 2 are liable to pay the increased price. Learned counsel for. The appellant argued that final relief cannot .Be granted .At interim stage and, therefore, the learned single Judge was not justified in ordering delivery of the vehicle to the respondents Nos.1 and 2 at interim stage. The learned counsel for the appellant also referred to section 64-A of the Sale of Goods Act, 1930 and argued that any increase in the price due to increase in the duty/taxes after the contract is executed, between the parties is to be recovered from the purchaser and in this regard relied on the case of Messrs Shahnawaz Engineering (Pvt.) Limited v. National Insurance Corporation (2005 CLD 678).
4. Learned counsel for the respondents Nos.1 and 2 stated that the said respondents paid full amount in respect of 2800 CC jeep and that they never asked for 3200 CC jeep at any time. In this regard he also referred to the agreement executed between the said respondents and respondent No,3, Orix Leasing, to argue that the said respondents were never interested in 3200 CC jeep. He stated that the question of delivery of the vehicle is not the only question involved in suit filed by them as the question of payment of additional duty is yet to be decided which is the main question in the suit.
5. Learned counsel for respondent No,3 adopted the arguments of counsel for the respondents Nos.1 and 2 while counsel for respondents Nos.7 and 8 stated that the present dispute is between the appellant and respondents 1-3 and respondents Nos. 7 and 8 have no part to play therein. He submitted that no prayer has been sought against the said respondents.
6. The question for determination in these proceedings is not whether respondents Nos.1 and 2 entered into an agreement with the appellant through respondent No,3 for purchase of a vehicle of the above specifications and has paid an amount of Rs,4,499,000 to the appellant in this regard.
This is an admitted fact that respondents approached the appellant for purchase of 2800 CC vehicle and have paid the above amount through cheque. Therefore, the arguments advanced by the learned counsel for the appellant at this stage are not relevant as these issues viz. Whether the initial booking was for 2800 CC vehicle or 3200 CC vehicle, whether booking was made on 14-4- 2008 or at any other date and whether the respondents Nos. 1 and 2 are liable to pay the increase in the price of the vehicle or not; are the questions A which are to be decided in the suit itself after recording of evidence. However, the only question of law relevant for the disposal of this appeal is whether by ordering handing over of the vehicle the learned single Judge has granted the final relief to the respondents Nos.1 and 2 or not.
7. In our view, the learned single Judge, while ordering delivery of the vehicle to the respondents Nos.1 and 2 has not granted the final relief to the respondents Nos.1 and 2 as the main relief claimed by them is that they are not liable to be saddled with the increase in the price B of the 2500 CC plus vehicles due to increase in regularity duty as the same was increased after the cutoff date of the supply of the vehicle ordered by the respondents Nos. 1 and 2 i,e, after the 120 days delivery period.
This question is to be decided in the main suit after recording of evidence. The relevant portion of the impugned order reads as under:-- "In the circumstances, to equate the parties on all fours, the Defendant No,1 is directed to handover the custody of the said vehicle after getting it released from Custom bounded warehouse (upon payment of all duties and taxes) to the Nazir of this Court -within fifteen-days hereof along with no dues certificate from Messrs Al-Baraka Islamic Bank. In case the defendant No,1 fails to obtain no dues certificate from the said Bank then it shall deposit a sum of Rs,44, 99, 999 with the Nazir of this Court in order to secure the financing of Messrs Al-Baraka Islamic Bank.
Nazir upon receipt of vehicle alongwith no dues certificate from Messrs Al-Baraka Islamic Bank or deposit as directed shall handover the custody of the said vehicle to the plaintiff after obtaining surety to his satisfaction in the sum of Rs,23,50,000 in order to secure the amount, if the Plaintiff's ultimately are found liable to pay the customs duties and taxes, etc. "
8. Thus, there is no substance in the argument of the learned counsel for the appellant that the learned single Judge, vide the impugned order, has granted final relief to the respondents Nos.1 and 2 at the interim stage. The main relief with regard to the payment of increase in the price is yet to be decided. Thus, no interference is called for in the impugned judgment. Therefore, I find no merit in this appeal which is liable to be dismissed and was dismissed vide short order dated 22-3- 2013.
9. These are the reasons for the short order dated. 22-3-2013 whereby the above appeal was dismissed.
10. It may be clarified that this High Court Appeal was heard by a Division Bench comprising the undersigned and the then Hon'ble Chief Justice, Mr. Justice Mushir Alam on 22-3-2013. Thereafter, the Hon'ble Chief Justice was elevated to the apex Court and, therefore, he sent back the file to the office with direction "not to be treated as part heard". Office moved a note to the Hon'ble Chief Justice for necessary orders. The Hon'ble Chief Justice, vide order dated 15-3-2014, was pleased to send this case to the undersigned for recording reasons for the short order. Accordingly, the above reasons are recorded for the short order dated 23-3-2013.