' MUHAMMAD JUNAID GHAFFAR, J.-Through instant appeal, the appellant has impugned a common judgment dated 12.11.2012 and decree dated 17.12.2012, passed in Suit No,1702 of 2000 along with Suit No,1151 of 2008, whereby, the Suit filed by the respondent has been decreed, whereas, the Suit filed by the appellant has been disposed of in terms of Para 24 and 25 of the judgment.
2. Briefly stated facts of the case are that the respondent had filed a Suit bearing No,1702 of 2000 (hereinafter referred to as "respondent's Suit) for specific performance, compensation and damages against the 'appellant, whereas, appellant had filed a Suit bearing. No,1151 of 2008 (hereinafter referred to as "appellant's Suit") for cancellation of agreement and mesne profits. It is further stated that the parties had entered into an agreement dated 25.04.1994, whereby, the appellant had sold its property, bearing Bungalow No,B-170, admeasuring 355 sq. Yds situated in Block-18, Works Cooperative Housing Society Limited, Gulshane lqbal, Karachi, against a total sale consideration of Rs,2.5 Million. The respondent had paid in aggregate an amount of Rs,1.5 Million constituting 60% of the total sale consideration, whereas, the .Balance sale consideration of Rs,1 Million was required to be paid on or before 17.10.1995. It is also stated that the respondent on payment of such part sale consideration was put into physical possession of the property. It has been further stated that the property in question was mortgaged with National Bank of Pakistan and as per clause 5(a) of the agreement; the appellant was required to pay the outstanding loan of Rs,1 Million and get the property redeemed from the bank. It is further stated that the respondent failed to make payment of the balance sale consideration of Rs,1 Million by or before 17.10.1995, therefore, the property could not be redeemed from the bank, whereafter, respondent filed a Suit for specific performance in the year 2000, whereas, the appellant filed Suit for cancellation of agreement in the year 2008. The issues were framed in the respondent's Suit vide order dated 16.12.2002, whereas, issues in the appellant's Suit were framed vide order dated 27.08.2012, however, since both the Suits pertained to the same property and in respect of the same agreement, with the consent of the parties, after consolidation, common evidence was led in both the Suits which have now been disposed of through a common judgment which has been impugned through instant High Court Appeal.
3. Learned Counsel for the appellant contended that since the respondent admittedly did not pay the balance sale consideration of Rs,1 Million on or before 17.10.1995 as required by Clause-11 of the Agreement of Sale, therefore, the appellant was entitled to forfeit the amount of advance payment, and the agreement of Safe was liable to be cancelled, whereas, the Suit for specific performance filed by the respondent was liable to be dismissed. Learned Counsel for the appellant further contended that there was no such condition in the agreement, whereby, it could be assumed that the appellant was required to execute sale deed before payment of the balance sale consideration and it had no nexus with the redemption of the property documents, as the appellant was expecting the balance payment of Rs, 1 Million to get the property redeemed and execute the sale deed in favour of the respondent. Per learned Counsel the learned Single Judge has failed to appreciate that the respondent had admittedly defaulted in making the payment of balance sale consideration on or before 17.10.1995 and therefore, no specific performance of the agreement could have been sought which, otherwise, was liable to be cancelled.
4. Conversely, learned Counsel for the respondent contended that no default had been committed by the respondent, whereas, the respondent had issued a letter to the defendant on 17.09.1995, on the address as mentioned in the agreement of sale, whereby, appellant was informed that the respondent was ready to make balance payment of sale consideration subject to clearance of the dues and completion of the documents, to finalize the deal, including the execution of sale deed.
Per learned Counsel, the appellant could not finalize the execution of the sale deed, as admittedly, the documents were not redeemed from the bank till the year 2006, and therefore, the learned Single Judge has passed a fair and reasoned order, whereby, though the Suit of the respondent has been decreed, however, respondent has been directed to make payment of the balance 40% of the sale consideration on the basis of the current market value of the property, therefore instant appeal has no merits and is liable to be dismissed. Learned Counsel has also referred to Section 55(1)(d) of .The Transfer of the Property Act, 1882, and contended that the rights of the respondent are protected, as the respondent had paid 60% of the sale consideration and was also put into the physical possession of the subject property. Learned Counsel further contended that the Suit of the appellant was hopelessly time barred, as the agreement was executed in the year 1994, whereas, the Suit for cancellation of the agreement was filed in the year 2008; hence, the appellant is not entitled for any relief from this Court.
5. We have heard both the learned Counsel and perused the record. By consent of both the learned Counsel, instant appeal is being disposed of at Katcha peshi stage.
6. It appears that the facts as stated hereinabove are not in dispute and it is an admitted position that the appellant had sold its property vide agreement dated 25.4.1994 on a total sale consideration of Rs,2.5 Million, out of which, an amount of .Rs,1.5 Million was paid by the respondent to the appellant and the respondent was put into possession of the said property. It is also an admitted position that the appellant was required to .Make payment of the loan amount of Rs, 1.0 Million to National Bank of Pakistan and get the property redeemed from the bank, whereas, respondent was required to make payment of the balance sale consideration of Rs, 1 Million to the appellant on or before 17.10.1995. It is also an admitted position that the property in question was redeemed 'by the appellant somewhere in the year 2006, whereas, respondent had filed the Suit for specific performance in the year 2000. On the other hand, the appellant's Suit for cancellation of the agreement dated 25.4.1994 was filed in the year 2008. Both the Suits filed by the appellant as well as by the respondent were consolidated and the following issues were framed in the respondent's Suit.
1. Whether the defendant or the plaintiff has committed any breach of the agreement to sell?
2. Whether the defendant had made out a valid, subsisting and marketable title in terms of the said agreement to sell or the plaintiff has failed to make payment of the balance sale consideration.
3. Whether the time for completion of sale was the essence of the agreement to sell?
4. Whether the plaintiff is entitled to specific performance or compensation?
5. Whether the plaintiff is entitled to financial and mental losses/ damages and mesne profit due to the failure of the defendant to complete the sale?
6. Whether the defendant has suffered losses because of the failure on the part of the plaintiff?
7. What should the decree be?
8. Similarly, the following issues were framed in the appellant's Suit, which reads as follows:-
9. Whether agreement dated 25.04.1994 is liable to be cancelled?
10. Whether the amount given by defendant to the plaintiff pursuant to the agreement is liable to be forfeited?
11. What should the decree be?
8. The respondent in her evidence produced various documents, including postal receipt and courier receipt to substantiate that the respondent had informed the appellant regarding willingness to perform her part of agreement by making payment of balance sale consideration subject to execution of sale deed. It is the case of the respondent that it had sufficient funds at the relevant time to pay the balance sale consideration and in 'support of such contention the respondent produced several documents i.e, NTN Certificate, Income Tax Certificate and Bank Certificates to estabfish that it had sufficient funds for making payment of the balance sale consideration. However, in her cross examination, the respondent had admitted that the balance sale consideration was not paid by the respondent before 17.10.1995 and further till date, no efforts were made by the respondent to make payment of the balance sale consideration, even after filing of Suit before this Court. The respondent's case is that since the appellant was not in a position to execute the sale deed, as it had failed to redeem the documents from the bank until the year 2006, therefore, balance sale consideration was not paid by the respondent.
9. On the other hand, appellant in her evidence has admitted that the property documents were redeemed in the year 2006 and has further admitted that the appellant had not issued any letter or legal notice for cancellation of the agreement to the respondent nor any intention was shown by the appellant to return the advance payment to the respondent. It has been further admitted that the Suit for cancellation of agreement was filed biller in the year 2008. The only ground which has been urged on behalf of the appellant is, that since the balance sale consideration was required to be paid on or before 17.10.1995, whereas, no date for execution of the sale deed was provided in the agreement; therefore, irrespective of the fact, that the property documents were redeemed or not, the respondent was required to pay the balance sale consideration, whereafter, the appellant would have executed the sale deed. Insofar as the appellant is concerned, it has been admitted in the evidence as well as before this Court, that no efforts of whatsoever nature, including issuance of notice or letter for cancellation of the agreement was made by the appellant till the year 2008 i.e, after about 14 years of signing of the agreement. Even on a query by the Court in this regard, the learned Counsel for the appellant could not put forth any plausible justification or reason, nor was able to refer to any such documents on record, whereby such fact could be controverted. In view of such position, we are of the view that insofar as the case of the appellant with regard to cancellation of agreement dated 25.04.1994 is concerned, the same is misconceived in fact and law and has been rightly dismissed by the learned Single Judge through impugned judgment. The appellant has failed to point out any illegality or perversity in respect of such fact of the matter in the impugned order, which otherwise has been passed by the learned Single Judge after examining the entire evidence led by the appellant in support of her contention. It has been further noted that the appellant was never in a position to perform her part of agreement for executing the sale deed, as according to her own admission and stance, the documents of the property were redeemed from the bank in the year .2006, whereas the appellant for the first time .Sought cancellation of agreement of sale in the year 2008 by filing a Suit before this Court. In view of such facts the prayer sought in the appellant's Suit could not have been granted by the learned Single Judge, moreover, while decreeing the Suit of respondent, the learned Single Judge has adequately compensated the appellant, whereby the respondent has been directed to make payment of the balance 40% of the sale consideration on the current market value of the property in question.
Hence the Suit of the appellant has been rightly disposed of in terms of Paras 24 and 25 of the impugned judgment dated 12.11.2012.
11(sic) Whereas on the other hand, the respondent through her evidence has been able to show that she was willing to perform her part of the agreement all along, and was prevented from performing such part of the agreement, owing to the inability of the appellant to execute sale deed.
However, the respondent could not justify her failure to deposit the balance sale consideration with any supporting or convincing reason, as she even failed to offer deposit of the balance sale consideration before this Court after filing of .The Suit. This aspect of the matter has been examined by the. Learned Single Judge and after placing reliance on the judgment of Hon'ble Supreme Court in the case of Muhammad Siddiq v. Muhammad Akram (2000 SCM R 533), whereby, the Hon'ble Supreme Court while decreeing a Suit for specific performance filed after a lapse of 9 years of agreement' of sale, had increased the balance sale consideration of Rs, 2,000.00 to Rs, 100,000.00 owing to depreciation in the value of currency, the learned Single Judge has passed a reasoned and a fair order, whereby, while decreeing the Suit, the respondent has been directed to make payment of the balance sale consideration of 40% on the basis of current market value of the property, as this amount remained unpaid during the period under dispute, and the appellant must not suffer on account of such delayed payment, as during this period, the possession of appellant's property was being enjoyed by the respondent, whereas, the claim of damages demanded by the respondent has been .Dismissed by the learned Single Judge. It is pertinent to note that the respondent has not felt aggrieved by this judgment and, has not preferred any further appeal in this regard. Therefore, we are of the opinion that the Suit of the respondent has been rightly decreed keeping in view the facts and circumstances of the instant case.
12. Another aspect of the matter of which one cannot lose sight of is, that the respondent after having made payment of 60% of the total sale consideration and put' in to physical possession of the property for a period of almost. 14 years, when for the first time the appellant sought cancellation of the agreement by filing Suit before this Court in the year D 2008, has acquired certain rights in respect of the said property through possession of the same which otherwise is also protected in terms of section 53-A of the Transfer of Property Act, 1882, which provides that where any person enters into an agreement to transfer for consideration, any immoveable property from which the terms necessary to constitute the transfer can be ascertained, and the transferee has in part performance of the contract taken possession of the property, and has done some act in furtherance of the contract, and is also willing to perform his part of the contract, then notwithstanding, that the transfer has not been completed in the manner prescribed by law for the time being in force, the transferor shall be debarred from enforcing against the transferee any right in respect of the property in respect of which the .Transferee has paid substantial amount towards sales consideration and has also been put in lawful possession. In the instant matter the appellant has not disputed that the respondent was put into possession on payment of part sale consideration under a valid agreement and it is not the case of the appellant that such possession was forcibly taken by the respondent. It has come on record through evidence, which has not been shaken in Cross examination, that the respondent was and is willing to perform her part of the agreement by making payment of the balance sale consideration, whereas, the appellant, firstly, was never in a position to execute the sale deed in favor of the respondent till 2006, which could have completed the sale transaction as required in terms of section 53(1)(d) of the Transfer of Property Act, 1882, and secondly, never made any attempt or effort to seek cancellation of the agreement despite lapse of a period of 14 years, which reflects upon the acquiescence on the part of appellant, hence, at this stage of the proceedings; no adverse inference can be drawn, which is detrimental to the interest of respondent.
13. In view of hereinabove facts and circumstances of the case and the legal position as emerged from record and the evidence, we are of the opinion that the .Learned Single Judge, while passing the impugned order, has not committed any error or illegality, on the contrary has passed a just and well reasoned order, after taking into consideration all the material and evidence available on record and has arrived at a decision which otherwise depicts correct legal position. Accordingly, we do not find any substance in the instant .High Court Appeal, whereas, the appellant has failed to make out or raise any substantial question of law, which may require this Court to interfere with the impugned judgment. We had dismissed instant High Court Appeal vide our short order dated.
12.02.2015 and these are the reasons of short order.