ASIM JAMSHAID vs SHAHZAD IQBAL MALIK Ss — 2023 CLC 1100 LAHORE-HIGH-COURT-LAHORE

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ASIM JAMSHAID VS SHAHZAD IQBAL MALIK Ss. 12, 19 & 22---Suit for specific performance of agreement to sell immoveable property (plot)---Performance of contract---Specific enforceability---Court, discretion of---Conduct of the party---Time as essence of contract---Effect---Agreement was made between the parties with respect to a plot in which purchaser (appellant/plaintiff) paid only 8% of total sale consideration as earnest money and remaining amount was to be paid to the seller (respondent/defendant) in 5 days or so---Condition specified in relevant clause of the agreement made between the parties was that the seller shall pay double the earnest money if he backed out from the sale and if purchaser did so, his advance money would not to be refunded---Trial Court refused specific performance of agreement to sell to appellant/plaintiff, however, the respondent /defendant was directed to pay double the earnest money and remaining amount deposited in the Court was also to be returned to the appellant /plaintiff ---Appellate Court modified judgment and decree to the extent of adding profit to the paid earnest money at the bank rate since date of its payment---Contention of the appellant/plaintiff was that the Courts below were bound to decree his suit qua specific performance notwithstanding having a clause in agreement providing for payment of double the earnest money in case of refusal by the seller (respondent/defendant)---Held, that S.19 of the Specific Relief Act, 1877 ("the Act, 1877 ") gave right to claim compensation to the person suing for specific performance of contract in addition to or in substitution for its breach---Relinquishment of right to seek specific performance of contract was to be decided keeping in view the conduct of the parties and evidence led in said respect---Short date was fixed, in present case, for performance of the contract meaning thereby that time was essence of the contract---Record revealed contradictions in the statements of the witnesses of the appellant/plaintiff regarding offering of balance sale consideration by the plaintiff to the respondent/defendant---No bank statements showing balance to pay remaining consideration was produced in evidence --- Suit was instituted after 18 months of the date specified for performance of contract; and, after a month, remaining sale consideration was deposited in the Court and that too on direction of the Court--- Having the balance money in hand then, did not mean that the appellant/plaintiff had the same on the date specified for performance of contract---Appellant/plaintiff failed to show his primary responsibility to show his readiness and willingness to perform his part of obligation---Respondent/defendant, after five months of purchasing suit-plot, bargained to sell suit-plot at a price which was Rs. 350,000/- more than its purchase price---Only a few (5) days time was provided to the appellant for payment of the balance sale consideration in the agreement, which was actually deposited in the Court after more than one and half years---Agreement-in-question could not be construed to infer consent of respondent / defendant to sell the suit-property with all its potential for rapid increase in value of suit-plot---Such a construction would give an unfair advantage to the appellant over his rival which could not be countenanced in law---High Court maintained that discretionary relief of specific performance could not be extended to the appellant/plaintiff---Appeal was dismissed, in circumstances.

ASIM JAMSHAID vs SHAHZAD IQBAL MALIK Ss — 2023 CLC 1100 LAHORE-HIGH-COURT-LAHORE

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