1. The plaintiff has filed two applications under Order XXXIX, rules 1 and 2 read with section 151, C. P. C.
2. Praying that the injunction may be issued against the defendants restraining them from selling, mortgaging or encumber--ing the Industrial concern namely, S. A. Rehman's & Sons situated on Plot No. 34-1, Deh Drigh, Tappo Malir, District Karachi or any of its assets in any manner whatsoever, or damaging its goodwill or property machinery equipment or store. The second applications under Order XL, rule 1 for appointment of the receiver of the said concern.
3. Briefly the facts are that under an agreement the defendant No. 1 for himself and acting on behalf of the defendant No. 2 on 6-5-1979 entered into an agreement with the plaintiff to sell a running concern, S. Rehman's & Sons, situated on Plot No. 34-1; Deh Drigh. Tappo Malir, District Karachi, with machinery, stock, finished goods, raw material, tools, plants, all assts and liabilities existing on the date of transfer with the land, buildings, easement and all rights appurtenant to land and buildings for a lump sum price of Rs. 5.50,000. In part performance of the agreement the plaintiff paid to defendant No. 1 Rs. 50,000 as earnest money. Rs. 2,00,C00.00 was paid on 30th July, 1979 and the third instalment of Rs. 1,00,000 was paid on" 27th January, 1980. The plaintiff has alleged that in terms of agreement the entire consideration of Rs. 5,50,000 was payable by 31st January, 1980, but due to financial difficulties he could not arrange the balance of Rs. 2,C0,000 within time and requested for extension of time which was granted by the defendants. The parties therefore entered into a supplementary agreement on 26-1-1980 whereby the period for payment of the balance was extended tip to 31st July, 1980. It was further provided that if the balance of Rs. 2,00,000 was not paid by 31-7-1980 the contract will stand rescinded and the earnest will stand rescinded and the earnest money of Rs. 50,000 will be forfeited by the defendants and the balance amount received was to be paid back to the plaintiff. The plaintiff has alleged that he paid the entire amount of Rs. 2,00,000 in three instalments of Rs. 2,000, 17,500 and 25,000 in cash by 31st July, 1980.
4. After the receipt of the entire sale consideration the defendant No. 1 handed over to the plaintiff draft agreement to be signed by the plaintiff .Sing the price of the industrial concern at Rs. 2,50,000 which was not agreed by the plaintiff. The parties continued negotiation and in a subsequent meeting another draft of agreement of partnership and indemnity bond was handed over to the plaintiff for signature. These documents intended to .Burden the plaintiff with liability on account of claims of workers and also to keep the defendant indemnified and harmless from such claim. The plaintiff refused to sign these documents whereupon the defendant No. 1 refused to execute the sale-deed, and threatened to dispose of the industrial concern to some one else. The plaintiff therefore issued a public notice in newspaper on 18th August, 1980 and by a legal notice called upon the defendant No. 1 to execute the sale-deed within 10 days from the receipt of that notice.
5. The defendant No. 1 replied the notices and contended that as the plaintiff has failed to pay the sale consideration within the stipulated time and also refused to accept the liability of the concern, the agreement stood cancelled and the payment made less the earnest money shall be refunded.
6. The plaintiff therefore filed a suit for specific performance of the contract and damages of Rs.
7. 62,400 claimed to have been suffered at the rate of Rs. 15,000 per month.
8. The defendants have filed counter-affidavit in which they have taken the plea that the agreements referred in the plaint have been signed only by defendant No. 1 and not by defendant No. 2. It has been pleaded that defendant No. 1 is only a partner in the said concern of S. A. Rehman's & Sons to the extent of 75 paisas in a rupee and the remaining share of 25 paisa in the said running concern belong to the defendant No. 2. It has been averred that in the agreement it was clearly stated that defendant No. 1 was the owner to the extent of 50 % only in the land and buildings on which the factory was located and that the defendant No. 2 who was residing at Jeddah was to give a power of attorney to the defendant No. 1. It is thus pleaded that the sale transaction was conditional on obtaining power of attorney from defendant No. 2 authorising the defendant No. 1 to sell her share and in spite of his best efforts defendant No. 2 has refused to give any power of attorney and has refused to sell her share. The defendant No. 1 has denied that the draft agreement as alleged was ever given to the plaintiff. The plaintiff has agreed to purchase all the assets and liabilities but the plaintiff refused to accept the liability particularly the payments that were to be made to the workers. He has further stated that in view of the breach committed by the plaintiff the contract was rescinded and the defendant No. 1 offered to refund Rs. 5,45,000 received by him and proper instructions to this effect were issued to the bankers but plaintiff refused to accept it. It has further been stated that the agreement dated 6th May, 1979 is vague as the area of land and particulars of the machinery, plant, raw materials, etc. Have not been specified and therefore it is not possible to specifically perform the contract. The main plea of the defendant is that since a breach has been committed by the plaintiff and. The defendant No. 2 has refused to sell her share the contract cannot be specifically performed and no right has been created in favour of the plaintiff. The defendant No. 2 has also filed her written statement in which she has stated that defendant No. 1 was ever appointed as her attorney nor he was authorised to sell her share to the plaintiff.
9. The plaintiff and defendant No. 1 are real brother whereas defendant No. 2 is the adopted daughter of the plaintiff No. 1.
10. From the narration of facts the admitted position is that the plaintiff and defendant No. 1 for himself and representing himself to be the authorised representative of the-defendant No. 2 bad entered into an agreement for sale of a specified plot of land with building thereon together with machinery and its assets and liabilities. The survey number of the plot has been specified with particularity. It is also an admitted position that the plaintiff has been paying. Instalments from time to time and even by a supplementary agreement the defendant No. 1 agreed to extend the time for payment of the sale consideration which according to the plaintiff has been fully paid within the specified period. From .The photo copy of the receipts produced by the plaintiff prima facie it seems that the entire consideration of Rs. 5,50,000 has been paid to the defendant No. 1, It is significant to note that till such time the sale consideration had not been fully paid the defendant No. 1 or No. 2 did not raise any objection to the sale. The main dispute seems to have arisen after the defendant was, called upon to execute the sale-deed and the defendant No. 1 wanted to execute on some advantageous terms of his choice to which the plaintiff was not agreeable. It seems that the plaintiff had raised objection to the liabilities of the firm which were to be borne by the plaintiff under, the sale deed. In terms of the agreement the plaintiff had agreed to purchase all assets and liabilities and at the moment there are no materials on record to prima facie show that the plaintiff categorically refused to undertake the liabilities of the firm on the date of transfer. From an analysis of these facts it is clear that up to August parties have been negotia--ting to settle the terms of sale deed. By legal notice dated 20-8-1980 the plaintiff called upon the defendant No. 1 to execute the sale deed: By a legal notice dated 27-8-1980 the defendant No. 1 alleged that as the plaintiff did not pay the sale consideration in terms of contract and was not prepared to accept the liability the "deal stands cancelled". The agreement was cancelled for the aforestated reasons and it was never pointed out that the defendant No. 2 is not agreeable to sell her share or that the defendant No. 1 was not authorised to sell her behalf.
11. Mr. Khalilur Rehman's, the learned counsel for the defendants contended that the agreement is not specific and therefore due to its uncertainty it is not possible to specifically perform it. This question relates to disputed question of fact which can be determined only after the evidence has been led on the point. ' At present I have only to restrict myself to the prima facie nature of the case brought on record by the pleadings and the affidavits filed by the parties. As the name of the concern with all necessary details is mentioned together with survey number of the plot which has been specified, for the purposes of this application the particulars are sufficient to entertain the claim of the plaintiff. As the defendant No. 1 has not denied the agreement who has 75 % share in the concern and 50 % share in the land and as he has received and accepted the entire sale consideration it has to be considered whether the cancellation of the contract as stated in the defendant's legal notice dated 27-8-1900 was proper. Under the supplementary agreement the agreement could be cancelled only in default of payment of sale considera--tion within the stipulated time. The payment has been prima facie established and even admitted by defendant No. 1. The defendants have thus prima facie failed to establish that the plaintiff has failed to pay the sale consideration in terms of contract.
12. The objection that .The defendant No. 2 has refused to give power of attorney or to agree to sell her share seems to have been raised after the dispute between the plaintiff and defendant No. 1 had arisen. This prima facie establishes that this dispute was raised to avoid the sale and is an after-- thought. At this stage I am not inclined to investigate into the dispute whether the defendant No. 1 was authorised by defendant No. 2 to sell her share or whether she has validly refused to abide by it. The fact remains that the defendant No. 1 claims the defendant No. 2 to be her adopted daughter and therefore as the defendant No. I entered into an agreement with the plaintiff on behalf of defendant No. 2 also it may be inferred that in the personal capacity as well as a partner of the firm he may be having the authority to sell the concern.
13. The learned counsel for the plaintiff has pointed out that an inventory was prepared .By the Nazir in which four tanks were found but in the second report two tanks are missing. He has also stated that one Suzuki which was property of the firm has been removed and was not brought to the notice of the Nazir. So far the tanks are concerned Mr. Khalilur Rehman's has pointed out that in the second report of the Nazir all the four tanks have been shown and are mentioned at two different places.
14. The particulars of the Suzuki has not been given by the plaintiff and therefore it cannot be held that it belonged to the firm and has been removed by the defendants. A receiver can be appointed in cases where the property has been wasted or is in danger of being wasted, A mere apprehension of mismanagement or misappropriation is not sufficient to appoint a receiver. Although the plaintiff has been able to snake out a prima facie strong case, this is not sufficient for appointment of receiver unless there is sufficient proof of waste and mismanagement. The firm is manufacturing food products and it can be run controlled supervised and managed by pers3ns who have technical knowledge. The plaintiff has not even alleged any fact to show that the business and quality of product is deteriorating. In the facts and circum--stances of the case sufficient cause has not been made out for appointment of receiver. However, the interest of the plaintiff should be secured to meet the ends of justice. I therefore order restraining the defendants from transferring, selling, mortgaging or in any manner creating charge or encumbrance on the property in dispute or part thereof. The defendants are further directed to submit monthly accounts of the production, sales, income, expenses, assets and liabilities with the Nazir. The Nazir is authorised to inspect the factory and the disputed property and if any discrepancy, waste is found the same should be reported to the Court immediately. The defendant No. 1 is further directed to deposit in Court Rs.
15. 5,50,000 within a period of two weeks which shall be invested by the Nazir in a fixed deposit with Habib Bank Ltd., Court Road Branch, Karachi. The profit accruing to such deposit shall be paid to the party who would be entitled to receive the sum of Rs. 5,50,000. The plaintiff is directed to deposit within one week Rs. 1,000 towards the tentative fee of the Nazir.