ALLY MADAD SHAH,. J.--This appeal under the provisions of section 3 of the Law Reforms Ordinance, 1972 is directed against judgment and decree, dated 8th of August, 1981 passed by a learned Single Judge of this Court in civil Suit No,280 of 1980.
2. The Suit No,280/80 was filed by the respondent Mst. Kazmi Begum for specific performance of an agreement of sale, dated 4th August, 1979 in respect of a plot No, 147, Block No, 15, Federal "B" Area, Karachi with all construction and buildings thereon. The price of the suit property was settled at one lac, ninety-five thousand rupees. A sum of Rs,60.000 was paid to the vendor Mst. Sultana Begum, who is the appellant herein, as the advance money. The balance of Rs,1,35,000 was to be paid at the time of registration of sale-deed and delivery of possession of the property. The sale was to be completed by 4th November, 1979 i.e, within three months. The time limit for completion of the sale was subsequently extended up to 15th December, 1979. However the sale-deed was not completed. It is alleged that the appellant failed to complete the sale transaction. The respondent herein filed the suit for specific performance of the contract of sale and also claimed compensation at Rs,2,000 per month from 15th December, 1979 till completion of the sale and delivery of possession and also costs of the suit. The appellant admitted in the Written Statement filed by her the execution of the sale agreement and receipt of advance of Rs,60,000. She attributed non-completion of the sale to the respondent, alleging that the respondent insisted upon execution of sale-deed showing consideration at Rs,80,000 which Was not agreed to by her.
She leveled allegations that h r husband was put under pressure by the respondent's husband through the Deputy Commissioner and an A.S.M.L.A. (Major Khokhar) to refund the advance money.
She also mentioned that she had filed Constitutional Petition No, 96 of 1980 against the pressurizing tactics adopted by the respondent. She claimed special cost under section 30-A, C.P.C. For having been dragged into litigation.
' The suit was contested on the following 4 issues:--
(1) "Whether the agreement/contract in question regarding the sale of the property in question was cancelled/rescinded and this suit barred/hit by express provisions of law as laid down in section 62 of the Contract Act?
(2) Whether this suit is barred/hit by express provisions of law as laid down in section 115 of the Evidence Act and the plaint of the suit is liable to be rejected under Order VII, rule 11, C.P.C.?
(3) Whether the plaintiff committed breach of the contract/agreement in question or the defendant?
(4) What should the order be?"
' The parties adduced evidence. Their respective husbands stepped in the witness-box to give evidence on their behalf. The learned Single Judge held by the impugned judgment and decree, dated 9-8-1981 that the sale agreement did not stand cancelled/rescinded and the suit was not barred by section 62 of the Contract Act or by section 115 of the Evidence Act and placed breach of agreement on the appellant herein, and decreed the suit for specific performance of contract of the sale of the said property in the sum of Rs,1,95,000 and also awarded to the respondent herein interest at 14%, per annum on the sum of Rs,60,000 paid in advance, from 15112-1977 till registration of the sale-deed, and also costs of the suit.
3. Issue No,3 constitutes the crux of the suit as to, who was responsible for breach of the agreement/contract. The parties have floated in pleadings as well as in the evidence adduced by them allegations and counter-allegations. However, the point of difference between them has been pin-pointed to the question of consideration to be mentioned in the sale-deed. Admittedly, the parties had settled the consideration for the transaction of sale of the property at Rs,1,95,000 as reflected in the agreement for sale Exh.5/2. The plaintiff/respondent herein has alleged that the defendant/appellant herein had insisted upon mentioning the consideration in the sale-deed at Rs,80,000 in order to save substantial amount he had to pay as capital gains tax and that proposal was not acceptable to her. The counter-allegations from the other side are that this proposal of mentioning consideration at Rs,80,000 in the sale-deed was pressed by the plaintiff/respondent's side so much so that pressure was put on the appellant/defendant through the Deputy Commissioner and A.S.M.L.A. (Mr. Khokhar) for accepting the proposal but it was not agreed to.
Admittedly, the sale-deed was actually drafted wherein the consideration for sale of the property was mentioned at Rs,80,000 and stamp duty was affixed thereon in the shape of adhesive stamps over that much amount. The sale-deed has been put in evidence as Exh.5/4. The appellant/defendant has alleged that the sale-deed was drafted and stamp duty was provided by the respondent/plaintiff, whereas the counter-version is that the draft of the sale-deed was entrusted to the husband of the appellant/plaintiff. On this contentious issue, there is evidence of the respective husbands of the parties. Mr. Irshad Ahmad is the husband of the appellant and his evidence is Exh.5. Mr. Abdul Naeem is the husband of the respondent and his deposition is at Exh.6.
The learned Single Judge was not impressed by the ,evidence of Irshad Ahmed for certain reasons highlighted in the judgment and the evidence given by Abdul Naeem was found credible on the basis of the reasons recorded in the judgment. The observations of the learned Single Judge on the evidence of Irshad Ahmed, the husband of the appellant, on the question of the mention of amount of consideration in the sale-deed are that it was he who would have derived benefit from showing lesser amount of consideration in the sale-deed as he would have saved "a huge amount in capital gains tax" and there was no ostensible reason to the plaintiff/respondent to have insisted upon mentioning lesser amount of consideration in the sale-deed. There is no doubt that the respondent/plaintiff would not have derived much benefit from mentioning lesser amount of consideration in the sale-deed as she could have, at the most, saved smaller amount over the stamp duty chargeable over the amount making difference between the settled sum of consideration at Rs,1,95,000 and the proposed sum of consideration at Rs,80,000 and in the registration fee and some miscellaneous charges payable thereon. Of course, the respondent could expect benefit in taxation of the property for the payment of property tax etc. But she could also foresee the risk to the future prospects of the value of the property. On the other hand, the appellant/defendant could derive immediate benefit in determination of capital gains tax. Be that as it may, the sale transaction could not have been completed unless the appellant/defendant had obtained capital gain certificate. Such certificate could have been obtained on the basis of the agreement of sale and the preparation of the sale-deed could have followed. This certificate does not seem to have been obtained nor is there any evidence to show that any effort was made for obtaining the certificate. It follows that the appellant/defendant was interested in showing the sale consideration at lesser amount for the purpose of saving substantial amount required to be paid as the capital gains tax. In any case, the breach of contract is attributable to the appellant/defendant as held by the learned Single Judge.
4. As regards findings on issues Nos. 1 and 2, the learned Single Judge has discussed in great detail the evidence adduced by the parties in dealing with issue No,1 which is based on the plea that the plaintiff/ respondent had caused cancellation/rescission of the sale agreement by proposing that the sale consideration may be shown in the sale-deed at the lesser amount of Rs,80,000 as against the agreed sum of Rs,1,95,000. The learned Single Judge has held that there was no truth into such allegations. The facts relevant for the determination of this issue have already been discussed while discussing issue No,3 and it has been held that there was no proposal from the side of the respondent/plaintiff for showing lesser amount in the sale-deed as the consideration for the transaction of sale. Even if it were assumed, of course without conceding, that there was such proposal from the side of the respondent/plaintiff, it did not amount to cancellation/rescission of the sale agreement as the amount of consideration settled between the parties remained intact and there were not other changes in the terms and conditions of the contract to have been given effect to. The findings of the learned Single Judge on this issue are unexceptionable.
5. As regards issue No,2, it has been alleged that the respondent/ plaintiff had approached the Deputy Commissioner and an A.S.M.L.A. For putting pressure on the appellant/defendant and her husband to execute the sale-deed as desired or to refund the advance money. There seems no doubt that such under-hand method was employed from the respondent's side, although unsuccessfully, but that action did not amount to estoppel in the way of the respondent/plaintiff in filing suit in the Court. This issue also was rightly decided against the appellant/ defendant by the learned Single Judge.
6. Consequent to the findings arrived at above, the decree against the appellant for specific performance of the agreement, dated 4-8-1979 does not, at all, call for interference. However, the second part of the decree regarding payment of interest at the rate of 14% per annum on the advance of Rs,60,000 from 15-12-1979 till the registration of sale-deed needs consideration. The interest has been awarded as compensation for retention of the advance money of Rs,60,000 and failing to perform the contract as per terms and conditions of the agreement. No doubt, non- performance of the agreement has been attributed to the appellant/ defendant but here is ample evidence on record that under-hand method of putting pressure on the appellant/defendant and her husband, through Deputy Commissioner and an A.S.M.L.A. Were employed for performance of the contract and the appellant and her husband had to save their skin by filing a Constitutional Petition No, 95 of 1980 in the High Court and it was, thereafter that the suit was filed for specific performance of contract. In these circumstances the respondent/plaintiff does not seem entitled to any compensation for non-performance of the contract. Accordingly, the second part of the decree regarding payment of interest on the advance of Rs, 60,000 needs to be set aside.
7. For the reasons recorded above, we maintain the judgment and decree to the extent of specific performance of the agreement, dated 4-8-1979 but set it aside as regards the payment of interest of the advanced money of Rs, 60,000. The respondent/plaintiff shall be entitled to the costs of the suit as decreed by the learned Single Judge but no order is made for costs in this appeal which stands partly allowed and partly dismissed.