SHAHID BILAL HASSAN J. Tersely, the respondent was the exclusive owner in possession of a duly approved housing scheme from the TMA, Ferozwala under the name and style of M/s Lahore Garden & New Lahore Phase-I, Housing Scheme, Situated in Mauza Chahar and Rana Bhatti, opposite Government Primary School, Kot Noor Shah, Shahdara, Sharaqpur Road, Tehsil Ferozwala, District Sheikhupura with total land measuring 1100 Kanals approximately inclusive of developed, underdeveloped land alongwith immovable assets of all sort of public utilities with standing construction. Allegedly, the respondent agreed to sell the said property to the petitioner in February, 2018 in presence of the witnesses against a total consideration of Rs.940,000,000/- and in acknowledgment of the said bargain the respondent received Rs.1,000,000/- as earnest money from the petitioner through cheque No.18854127, drawn on Meezan Bank, Zahoor Elahi Road, Lahore and a formal agreement of sale was reduced into writing on 01.03.2018 to the effect that the respondent was already dealing in sale of plots of the suit property in the market, therefore, the above said agreed sale consideration of the suit property would include an approximate amount of Rs.405,300,000/- as remaining sale consideration of the already sold residential and commercial units of the property by the respondent, subject to its finalization upon providing of sale records of the suit property, was due against their respective purchasers for their respective purchase of different portions of the residential and commercial units and recovery of the same would be the liability and responsibility of the respondent, hence, after its final determination would be excluded from the agreed sale consideration of Rs.940,000,000/-, where-after the said remaining amount would be the actual sale consideration for the purpose of agreement to sell in question; that as per agreed terms, the petitioner was bound to pay 1/4th amount as earnest money being first installment of the sale consideration of the total agreed sale consideration after deduction of actual recovery of respondent due against its already sold residential and commercial units of the suit property upon providing of sale records and that of the actual measurement of the remaining available immovable assets of the suit property; similarly upon finalization of the said calculation, the remaining amount of sale consideration would be paid in twelve months wherein initial six months would be the grace period where-after, monthly installments be made by the petitioner to the respondent but at any cost, the full and final payment of the bargain would be made positively on or before March, 2019; that it was agreed between the parties that whenever any agreed payment of the sale consideration is made by the petitioner/ plaintiff, the respondent at his instance in acknowledgment of receipt of the said part of sale consideration would be liable to execute the transfer deed of the immovable assets of the suit property in favour of the petitioner or any of his assignee or nominee upon providing Fard Bai to the extent of received amount at his cost and expense; that in furtherance of their bargain, the respondent also provided his CNIC, copies of approval letters of the Scheme alongwith NOCs of various authorities, revenue record and that of copies of his agreement for the purchase of 32 acres of undeveloped land as being part of the agreement as proof of his ownership of the suit property and the petitioner got published this fact of purchase of suit property in the daily newspaper for his sole satisfaction. However, allegedly the respondent did not provide the records of his already sold units of the suit property and amount of actual recovery on lame excuses besides providing of Fard Bai of the land to the extent of 1/4th earnest money of the bargain. The respondent was approached time and again for the said purpose but all in vain, rather it came to the knowledge of the petitioner that the respondent malafidely negotiated further sale of the suit property with some other person against an enhanced price, so the respondent was contacted with a request to honour his commitment but he refused to accede to the request of the petitioner; therefore, the petitioner instituted suit for possession through specific performance of agreement with mandatory and permanent injunction.
After filing of the suit, the parties arrived at an interim compromise arrangement and filed the same before the Court through application under Order XXIII, Rule 3, Code of Civil Procedure, 1908.
Allegedly, the petitioner complied with the terms of the said compromise and paid the initial amount fixed under the said arrangement to the respondent but the respondent failed to comply with clauses 1(d), (e) and (f) of the application despite an order of the Court dated 08.06.2018.
Again, the parties entered into a negotiation and on 09.10.2018, the respondent made a statement before the Court that he had received another amount of Rs.90,000,000/- and the respondent also agreed to transfer another area of 30 acres after receipt of the said amount. However, despite passage of more than one year, the respondent failed to do the needful, so the petitioner moved an application for enforcement of the said order against the respondent. On 16.11.2019, after arguments on the said application, the learned trial Court ordered the petitioner to pay an amount of Rs.619,486,272/- which was agreed between the parties as sale consideration within a period of one month. Being aggrieved of the said order, the petitioner has filed the instant revision petition.
2. Learned counsel for the petitioner has argued that the impugned order is against law and facts of the case; that the agreement to sell is not a simple agreement to sell of immovable property, rather it places mutual obligations on the parties, thus, the ratio of judgment reported as 2017 SCM R 2022 has wrongly been appreciated and applied in the case in hand; that the respondent has not fulfilled his part of agreement and even the arrangements made subsequently between the parties but even then the learned trial Court passed the impugned order; that the respondent has not handed over the documents showing his ownership over the disputed property as agreed by the parties; thus, the impugned order is not sustainable in the eye of law and liable to be set aside by allowing the revision petition in hand.
3. On the contrary, learned counsel for the respondent while supporting the impugned order, has argued that the petitioner has not fulfilled his part of agreement as well as arrangements made in the shape of compromise subsequently; therefore, the learned trial Court has rightly passed the impugned order giving an opportunity to the petitioner to show his bona fide and willingness to purchase the property in dispute.
4. Heard.
5. Terms and conditions No.1 to 8 of the alleged agreement to sell are essential for determination of the fact that the same falls in what type of the agreement/contract, which are reproduced as under:-
1. That the total sale consideration for the sale and purchase of the scheme alongwith standing construction and other attached lying articles, movables & immovable of all sort, detailed in the annexed schedule-I subject to the actual measurement of the immovable land inclusive of raised construction thereupon, residential & commercial, against agreed rates being detailed in the annexed schedule-I, is agreed at Rs.940,000,000/-.
2. That the above said agreed sale consideration of the Scheme does include an approximate amount of Rs.405,300,000/- as remaining sale consideration/installments of the already sold residential & commercial units of the Scheme by the Seller (subject to finalization upon providence of sales record of the Scheme) due against their respective purchasers for the purchase of different portions of residential or commercial units of the Scheme, recovery of which will be the sole liability and responsibility of the Seller, therefore, the said amount after final determination will be excluded from the agreed sale consideration of Rs.940,000,000/-. Hence, after its execution, the total payable sale consideration of the bargain will be the actual sale consideration of this agreement of sale.
3. That as the above deducted amount is being made from the entire sold Scheme, therefore, upon execution of this agreement of sale, the proprietary rights of the sold units of the Scheme shall be transferred to the Purchaser, who will be responsible to transfer the ownership of the said sold units in favour of their respective buyers after receipt of outstanding dues from them subject to the final planning of development work by the purchaser. The Purchaser shall be liable to transfer/register the units in the names of respective buyers upon the request of Seller. If the respective buyer fails to make payment to Seller and Seller cancels the unit for the respective buyer, Seller shall be responsible to pay any amount due to respective buyer, and such cancelled unit shall be added in the land sold to Purchaser for rate per marla agreed in this agreement.
4. That the target date of the completion of the bargain is agreed upon 12 months from the date of signing of this agreement of sale i.e. March 1st, 2019 with specific agreed mode of payment. Any records of income tax and sales tax upto 01 March 2018 shall be handed over to the Purchaser within three (3) months from the date of payment of 25% as first installment.
5. That under the greed terms of the payment of the sale consideration , the purchaser shall pay a sum of 25% of the total agreed sale consideration after deduction of actual recovery of the Seller as being remaining sale amount of his already sold residential & commercial units of the Scheme upon providence of sales record and that of the actual measurement of the remaining available immovable assets of the Scheme as earnest money as being first installment of the sale consideration whereas upon finalization of the above calculation, the remaining amount of sale consideration will be paid in twelve months wherein initial six months will be the grace period whereafter monthly payments be made by the purchaser to the Seller but the final payment of the bargain be made positively on or before 01 March 2019. It is clarified that remaining sale price of 75% shall be paid in six equal installments starting from six months after the date of agreement with last payment till 01 March 2019.
6. That it has been agreed between the parties that prior to the receipt of payment of last installment of the remaining sale consideration, the Seller will be responsible to provide at his cost and expense not only the fresh Fard Bai(s) of the entire/remaining sold land of the Scheme for the completion of transfer of the proprietary rights of ownership of any of the remaining sold land of the scheme, but will also provide the transfer letters of the movable assets of the articles for the transfer of their ownership in the name of the purchaser at his cost and expense.
7. That further it has been agreed upon between the parties that whenever any agreed payment of the sale consideration has been made by the purchaser, the Seller at his instance in acknowledge of the receipt of said part of the sale consideration, will be liable to execute the transfer deed of the immovable assets of the scheme to the proportionate of the received amount of part of sale consideration in favour of purchaser or any of his assignee or nominee upon providence of Fard Bai to the extent of the received amount.
8. That as per agreed terms of the bargain, at the time of signing of this agreement, the seller acknowledges the receipt of already paid amount of token earnest money of Rs.1,000,000/- through cheque No.3-18854127 dated 10 February 2018, in the presence of witnesses whereas the remaining amount of 1st installment of 25% of the agreed sale consideration will be paid by the Purchaser to the Seller after finalization of actual recovery of the Seller as being remaining sale amount of the already sold residential & commercial units of the Scheme upon providence of sales record alongwith and that of actual measurement of the remaining available immovable assets of the Scheme. The possession of the scheme shall be considered handed over after the payment of 1st installment of 25% of the actual calculated sale price for smooth business operations of the purchaser.' (underline for emphasis)
The above terms and conditions as well as others go to divulge that the agreement inter se the parties is a bilateral agreement and in a bilateral agreement, participating parties promise each other that they will perform or refrain from performing an act. It is clear from the above terms and conditions especially condition No.8 that the remaining amount of 1st installment of 25% of the agreed sale consideration will be paid by the Purchaser to the Seller after finalization of actual recovery of the Seller as being remaining sale amount of the already sold residential & commercial units of the Scheme upon providence of sales record alongwith and that of actual measurement of the remaining available immovable assets of the Scheme; however, there is nothing on record to suggest that the respondent fulfilled his part of the agreement in this regard by providing detail of already sold units, residential and commercial, by providing sale records as well as actual measurement of the remaining available immovable assets of the scheme. This Court while dealing with such a matter in {{Ijaz Ahmad Chaudhry v. Learned Civil Judge and others (2020 CLC 291-Lahore),}} which has been presented and relied upon by both the sides, has already held:- '6. Here, in this case, the perusal of Property Sale Agreement/Settlement Agreement goes to evince that it is bilateral agreement/contract/ settlement agreement and in a bilateral contract, participating parties promise each other that they will perform or refrain from performing an act.
This type of contract is also known as a two-sides contract, as stated above; thus, when the petitioner has already performed his first part of agreement, it is the respondents who have to perform their part as agreed between them and the petitioner and when they refused to perform their part of agreement/settlement agreement, this thing prompted the petitioner to approach the Court so as to force them to perform their part. Thus, in this eventuality, the petitioner cannot be forced to deposit the whole sale consideration, especially when the agreement is bilateral as well as under certain terms and conditions and both the parties have to perform their parts step by step. As such, the case law relied upon by the learned trial Court reported as {{Hamood Mehmood v. Mst. Shabana Ishaque and others (2017 SCMR 2022)}} does not attract and is not applicable to the facts of the case in hand being on different premises.'
6. In the present case, in agreement to sell in question, it has not been agreed that the entire sale consideration will be paid in lump-sum rather it has been agreed that the respondent will be liable to transfer deed of the immovable assets of the scheme to the proportionate of the received amount of part of sale consideration in favour of purchaser or any of his assignee or nominee upon providence of Fard Bai to the extent of the received amount. Meaning thereby it is a commercial type bilateral agreement in between the parties. The agreement to sell as a whole is to be considered and read; however, the learned trial Court has failed to dilate upon the said issue by construing law on the subject in a judicious manner and without appreciating the ratio of judgment reported as {{Hamood Mehmood v. Mst. Shabana Ishaque and others (2017 SCMR 2022)}} has passed the impugned order regarding deposit of the remaining sale consideration, because in the said case the vendee/plaintiff despite decree had failed to deposit the balance sale price and even the same is a leave refusing order and cannot be held to be an enunciation of law by the Apex Court of country, having binding effect as per Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, because in number of judgments the Hon'ble Supreme Court has held that an order granting and/or refusing leave is not a judgment which decides a question of law and therefore, it should not be followed necessarily and imperatively as has been held in {{Muhammad Asif Awan v. Dawood Khan and others (2021 SCMR 1270).}}
7. Pursuant to the above, without calculation of the already sold units and received amount there- against the actual sale price cannot be determined and the petitioner cannot be directed to deposit the entire agreed sale price as the agreement in question is bilateral in nature, binding the parties to perform their parts step by step. Moreover, the learned trial Court while passing the impugned order dated 16.11.2019 was not sure whether the ordered amount is the balance amount or not as is evident from the last paragraph, which reads:- 'Before parting the order, it would be pertinent to mention that the amount herein above has been calculated while making an assessment in the peculiar circumstances and shall be adjustable at the time of final adjudication.'
8. In view of the above, the impugned order being not sustainable in the eye of law cannot be allowed to hold field; the same is, resultantly, set aside by accepting the revision petition in hand.
No order as to the costs.