EJAZ AFZAL KHAN, J.---Petitioner through the instant petition seeks review of the judgment dated 16.03.2015 of this Court, whereby it allowed the appeal filed by the respondent.
2. Learned ASC appearing on behalf of the petitioner contended that where a huge sum paid by the petitioner in part performance of the contract was used and utilized by the respondent for almost two decades, this Court while weighing the equities and declining the specific performance of contract was required to award interest to the petitioner on the bank rate from the date of receipt to the date of repayment. He next contended that where the petitioner deposited a sum of Rs,1,65,00,000/- in the Court of Senior Civil Judge pursuant to the judgment dated 04.04.2013 of the Lahore High Court, the Court was also required to award interest to the petitioner on the said sum from the date of its deposit to the date of its withdrawal. Failure of the petitioner, the learned ASC went on to contend, to deposit Defence Saving Certificates or Wapda Bonds for a sum of Rs,90,00,000/- in the Trial Court with a delay of a day or a few days could not be overemphasized before this Court when the delay was condoned by the Trial Court and the order condoning it attained finality for want of having been questioned in the next higher forum. The learned ASC lastly argued that omission to award interest to the petitioners on the amount used and utilized by the respondent would constitute an error on the face of the record calling for the review of the judgment dated 16.03.2015 of this Court.
3. The learned ASC appearing on behalf of the respondent contended that the time was of the essence of the contract as is evident from the date stipulated in the agreement to sell; that conduct of the petitioner was rightly considered as a basis for declining discretionary relief; that in paras 3 and 4 of the judgment under review this Court after considering all the aspects of the case rightly declined specific performance of contract and that at this stage the arguments addressed by the learned ASC for the petitioner cannot be considered when respondent himself suffered a great deal because of litigation.
4. We have gone through the record carefully and considered the submissions of the learned Sr.
ASCs for the parties.
5. Whether the time was of the essence of the contract or not is not of much relevance at this stage. Similarly the conduct of the petitioner cannot be blown out of proportion when delay in depositing the Defence Saving Certificates or Wapda bonds was condoned by the Trial Court and the order condoning delay for want of having been questioned in the next higher forum attained finality. However, the amount of Rs,35,00,000/- the respondent enjoyed and utilized for almost two decades cannot go unrequited. Nor can be the amount of Rs,1,65,00,000/- which remained deposited with the Court pursuant to the judgment allowing appeal of the petitioner. If grains of equity could be poured in one scale of justice while declining specific performance of A contract to the petitioner, they could also be poured in other scale of justice to compensate the petitioner whose huge sum remained with the respondent for almost two decades and five times more of it remained deposited in the High Court for more than a year pursuant to the judgment of the High Court. It would thus be unjust to leave the petitioner high and dry while declining specific performance of contract. Petitioner, in no case, be denied the bare minimum which he would have been given in the form of interest, had he deposited this much sum in the bank. Similarly he has to be compensated for what he deposited in the Court of Senior Civil Judge pursuant to the judgment dated 4.4.2013 of the Lahore High Court. The rough calculation inevitably sticks to a figure of Rs, 50,000,000 lacs'. We, thus hold that the petitioner would be entitled to an amount of Rs,50,00,000/- over and above the amount of Rs,35,00,000/- which has already been returned. The amount be C deposited in the Court within a period of three months which shall be withdrawn by the petitioner.
6. With the modification mentioned above, this review petition is disposed of.