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Petitioner: ABDUL HABIB DURRANI VS Respondent: TORIALI
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Raja Fayyaz Ahmed Title: ABDUL HABIB DURRANI vs TORIALI Case No.: Regular First Appeal No.28 of 1998 Date of Judgment:1998-06-30 Reported As: 1999 CLC 207 Result: Appeal dismissed
JUDGMENT
JUDGMENT RAJA FAYYAZ AHMED, J.--- This appeal under section 96, C.P.C. Has been directed against judgment and decree, dated 19-1-1998, passed by Senior Civil Judge, Quetta in Civil Suit No.35 of 1997, whereby the learned trial Court has decreed the respondent's suit for declaration, specific performance of agreement and injunction, against, the appellant; with the prayer to set aside the impugned judgment and decree, and to dismiss the respondent's suit with costs throughout. 2. The precise facts of the case relevant for the disposal of the instant appeal are that on 3-4-1997, the respondent instituted civil suit for declaration, specific performance of agreement and injunction, against the appellant wherein the following reliefs have been sought for:-- "(i)It may be declared that the defendant is bound by the terms and conditions of the agreement, dated 16-9-1996 arrived at between the plaintiff and defendant. (ii)That the defendant be directed to specifically perform the agreement, dated 16-9-1996 and transfer the property in question in the name of plaintiff after receiving the balance amount. (i.e)The plaintiff is entitled to the transfer of the property in question in his favour and the defendant is under obligation to do so: (iv)That the defendant be restrained in any way transferring or alienating the property in question in favour of any person whomsoever during the pendency of the suit. (v)It may be declared that the defendant being owner of the property in question has executed the agreement, dated 16-9-1996 which subsists, valid and binding upon him. (vi)Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case be awarded. (vii) Costs of the suit may also be awarded. "
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It has been averred in the plaint that the respondent is in possession of a house bearing N0.41I/A- 4/3, Block 3, Satellite Town, Quetta which is a double--storey building and was initially obtained on rent from the appellant against the monthly rentals Rs.3,000 and a sum of Rs.17,000 was deposited by the respondent with the appellant by way of security towards rent. According to the respondent/plaintiff sometime in the month of September, .1996, the appellant acquired absolute title of the suit property i.e. House No.411/A-4/3, Satellite Town, Quetta vide transfer deed duly registered with the Sub-Registrar, Quetta Town at Serial No.392 of Bahi No.1, Volume No.28 page 28- 293, dated 9-6-1982, who offered to sell the abovementioned house to the respondent and after negotiations between the parties sale agreement was executed on 16-9-1996, whereby the appellant agreed to sell the house to the respondent against the sale consideration amount of Rs.8,00,000 (Rs. Eight lacs) out of which an earnest amount of Rs.4,50,000 was received by the appellant against the sale consideration amount. Towards the earnest amount RS.4,00,000 was deposited in the bank account of the appellant, whereas, Rs.33,000 was paid in cash and the security amount of Rs.17,000 already lying with the appellant was adjusted towards the earnest amount and thus, the earnest amount of Rs.4,00,000 stood paid to the appellant. As per sale agreement, dated 16-9-1996 the respondent was liable to pay the balance consideration amount of Rs.3,50,000 to the appellant on or before 16-3-1997. It has been alleged in the plaint that since the execution of sale agreement the possession of the suit property remains with the respondent in his capacity as owner thereof, who as such has been exercising proprietary rights in respect thereof and as such the respondent has spent a huge amount on the repairs and renovation of the suit property. 3. It is the case of the respondent, as set up in the plaint that he throughout remained ready and willing to perform his part of the obligation arising out of the sale agreement pursuant to which a week prior to 16-3-1997, he alongwith the witnesses approached to the appellant and asked him to receive the balance amount of the sale transaction in terms of the agreement by tendering the balance amount of Rs.3,50,000 but he avoided to receive the same on the ground that as the agreement already stands executed, therefore, the respondent should not be in hurry and that he (the appellant) will himself contact to the respondent for the purpose, so as the title of the suit property be also conveyed simultaneously in favour of the respondent. It has been alleged that thereafter the respondent contacted and requested to the appellant to receive the balance amount of sale transaction in cash from him but he did not agree and thus, being constrained in the circumstances, balance amount was remitted through money orders to the appellant which could not be delivered to him because of the appellant's premises found to be locked. It has further been alleged in the plaint that in terms of the agreement respondent/plaintiff duly acted and performed his part of the obligation but the appellant successfully avoided to receive the balance amount of the sale transaction and thus, did not discharge the contractual liability on his part arising out of the contract, despite of the fact that the respondent on his part duly performed his obligation and is still ready to pay the balance amount to the appellant but the appellant postponed the matter on one or the other pretext. It has further been contended that major part of the obligation arising out of the contract already stands discharged by the respondent and in view of the aforementioned facts the respondent as liable to specifically perform the agreement in its entirety for which purpose the respondent approached and requested the appellant to transfer the title of the property in his favour by receiving the balance amount but he avoided to receive the balance amount and to transfer the title of the property in his favour, as such; the suit was instituted against the appellant. 4. The appellant by means of his written statement dated 10-5-1997 repudiated the claim of the respondent on various factual and legal grounds mentioned therein. The appellant/defendant admitted in his written statement that sale agreement dated 16-9-1996 has been executed
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between the parties pursuant to which an earnest amount of Rs.4,50,000 was also received by him and according to the case of the appellant, balance amount of the sale transaction i.e. Rs.3,50,000 was liable to be paid within a period of six months by the respondent to the appellant from the date of execution of the agreement i.e. Before 16th of March, 1997 but despite repeated demands and several visits within the period of six months from the date of execution of the agreement, the respondent failed to pay the balance amount to the appellant and thus, failed to perform the contractual obligation of his part till the crucial date because the time period specified in the agreement for payment of the balance amount of the sale transaction is the essence of the contract and the earnest amount of Rs.4,50,000 paid to the appellant stood forfeited in terms of the agreement about which the respondent was informed accordingly, who was further called upon to hand over the vacant possession of the house in question to the appellant. It has been denied that the appellant ever failed to perform the contractual obligation on his part but to the contrary, the respondent failed to abide by the terms of the contract and the relief being discretionary in nature, the respondent is not entitled for the specific performance of the agreement in view of the abovementioned facts and circumstances of the case. The appellant in his written statement also denied that the respondent is in possession of the suit property as owner or that he spent a huge amount on alleged repairs and renovation of the house in question. The appellant denied that the balance amount was remitted to him through money orders. In Para. No.4 of the written statement it has been categorically averred that the respondent obtained possession of the suit property after payment of the earnest amount to the appellant and thereafter avoided to make the payment of the balance amount within the stipulated period despite repeated demands and several visits made by the appellant for the purpose and because the time specified in the agreement was the essence of the contract, during which period the respondent failed to discharge his contractual obligation, therefore, he is not entitled for the discretionary relief prayed for. . 5. The learned trial Court (Senior Civil Judge, Quetta) out of pleadings of the parties framed the following issues on 16-5-1997:-- "(1) Whether the suit is not competent under the preliminary objections 'B' and ' C' raised in written statement? (2)Whether the time was the essence of contract i.e. The plaintiff was bound to pay the remaining balance amount of Rs.3,50,000 on or before 16-3-1997 under the clause (3) of agreement, dated 16- 9-1996? (3)Whether the plaintiff has been failed to perform his part? (4)Whether the plaintiff contacted the defendant and asked him to receive the balance amount of the sale transaction but the defendant avoided to receive that? (5)Whether the plaintiff is entitled for discretionary relief of specified performance? (6)Relief." The respondent/plaintiff examined two witnesses in support of his case namely Haji Noor Gul as P.W.1 and Muhammad Hanif as P.W.2 and thereafter the respondent appeared as his own witness. Whereas; the appellant/defendant produced three witnesses namely Sohail Ahmed as P. W .1, Rafique Mughal as P.W.2 and Mehmoodul Hassan Durrani as P.W.3. The appellant's son namely Muhammad Ayub appeared in the witness-box as his attorney. After close of the parties' case, the learned trial Court after hearing them vide impugned judgment and decree, dated 19-1-1998 decreed the suit in favour of the respondent/plaintiff directing the appellant to perform the agreement dated 16-9-1996 and to transfer the suit property in favour, of the respondent after receiving the balance amount within one month from the date of the decree, impugned in the instant appeal.
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6. The learned counsel for the parties were heard on 27-5-1998. Mr. W.N. Kohli the learned counsel for the appellant seriously contended that the postal money order remittance receipts Exh.P.1. To Exh.P.35 are totally deficient to establish the fact that the balance amount of the sale transaction was remitted to the appellant by the respondent and was returned as undelivered in absence of money order forms therefore, in such view of the matter both the learned counsel for the parties agreed that the money order forms pertaining to the abovementioned receipts be directed to be produced by the concerned official of G.P.O., Quetta, accordingly Senior Post Master, G.P.O. Was directed to produce the following documents through duly authorised representative:-- (i)Counterfoils of receipts Nos.09684 to 09718, dated 14-3-1997 in the sum of Rs.10,000 each in favour of Abdul Habib Durrani. (ii)Money order forms pertaining to money order receipts numbers mentioned above, separately alongwith endorsement of postman deputed to deliver the amount to Abdul Wahab Durrani. (i.e)Register containing entry to the effect that if the amount was not delivered then to whom it was refunded. (iv)Any other relevant document to prove the authenticity or otherwise of the abovementioned documents. Accordingly the matter was fixed as part heard on 1-6-1998 but want of time, the official in attendance was not examined and Mr. Muhammad Hanif, Town Inspector, G.P.O. Was directed to appear on 2-6-1998 but on such date as well, his statement could not be recorded as it was not possible to complete the proceedings within left over time, thus the matter was fixed for 3-6-1998 on which date statement of official Muhammad Hanif Raza, Town Inspector, G.P.O., Quetta was recorded on oath as C.W.1, who produced photostat copies of counterfoils of money order remittance receipts Nos.09684 to 09718 dated 14-3-1997 as C.W.1/A to C.W.1/35 and deposed that the money order forms in respect of the abovementioned receipts have been returned to the remitter, whereas; vouchers thereto have been sent to the Audit Section at Lahore. The witness produced the extract of the postman segister in respect of the abovementioned receipts as C.W.36. He also produced the extracts of money order paid Register as Exh.C.W.37. And Exh.C.W.38 in respect of the abovesaid receipts. The counterfoils and the postman Register and the money order paid Register after examination returned to the official. It may be noted that during cross-examination the witness wanted to produce photostat copies of the money order coupons but he was not allowed to do so, as he was directed to confine himself to the record brought by him, however; on the request of Mr. W.N. Kohli permission was accorded to bring on record the coupons. The witness on cross-examination by the appellant's learned counsel produced such coupons, as Exh.A./1 to Exh.A./35 (pertaining to the abovementioned money order receipts C.W.1/A to C.W.1/A- 35) which according to the witness were given to him by the respondent (Torriali) and the witness identified the respondent by pointing out towards him to be the person who has handed over to him these documents. He further stated that these documents were given to him yesterday i.e. 2- 6-1998 and according to the witness, the name of the sender as her money order coupons produced by him, as Haji Dad Karim who remitted these money orders to Abdul Habib Durrani son of Abdul Aziz Durrani, House No.4-35/37 in front of Azad Qureshi House, New Arif Road, Quetta. Responding to the cross-questions put by Mr. W.N. Kohli, the witness stated that Raza Muhammad, Postman was deputed to deliver these money orders who also was the postman of the area and that if the house of addressee is found to be locked, the postman at best will make further efforts on the following dates to locate the person, to whom the money order is to be delivered and in the instant case, such exercise was done by the postman thrice but the house of Abdul Habib Durrani was found locked, therefore, he brought back the amount of money order.
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The witness on cross-examination by Mr. M. Hashim Kakar, the learned counsel for the respondent/plaintiff stated that on the reverse of Exh.A./1 to Exh.A./35 signature of respondent Toriali, are available; which indicate that respondent had received the amount of undelivered money orders. As according to C.W:l Muhammad Hanif Raza, signatures of respondent Toriali are available on the reverse of Exh.A./1 to Exh.A./35, therefore, on the request of respondent's counsel he was allowed to examine the respondent (Toriali) but Mr. W.N. Kohli objected to the request so made. Respondent Toriali in his statement recorded on oath deposed that Haji Dad Karim is his business partner but he does not know the father's name of Haji Dad Karim. According to the respondent they have partnership business in Abdullah Market Chauhar Mal Road, Quetta and he had given the address of appellant Abdul Habib Durrani to Haji Dad Karim to remit thirty-five money orders worth Rs.3,50,000 on his behalf to the appellant which were returned as undelivered, therefore, he received back the amount of remittances by putting his signature on the reverse of Exh.C.W.-A to C. W.1/A-35 which he identified on these documents. The respondent further deposed that before remitting money orders he enquired about the address of the appellant and came to know that he was residing on New Arif Road, so he sent the money orders on such address and added that he had also accompanied the concerned postman. He further stated that even now he is ready to pay the balance amount of Rs.3,50,000 to the appellant plus an amount of Rs.50,000 by way of compensation. Opportunity of cross-examination was afforded to the appellant's counsel, which he availed. The respondent in the cross-examination part of his statement deposed he has no written partnership document with Haji Dad Karim and does know the name of the market in which such business was being run, however; it was in the name of Haji Dad Karim, with whom he has the partnership business for the last two years, and again stated that his brother Haji Abdul Hadi has the partnership business with Haji Dad Karim. He further disclosed that in the month of March, 1997 he was working in Japan Cloth Market, Pashtoonabad, Quetta. Responding to the cross-questions of the appellant's counsel stated that he does not remember the names of the persons from whom he enquired about the address of the appellant and denied that he did not remit the balance amount of Rs.3,50,000 to Abdul Habib Durrani by money orders and also denied that he did not send the money order on his address mentioned in the agreement. 7. Consequent upon the statements of C.W.1 and the respondent having been recorded, the learned counsel for the parties have been heard at length. Mr. W.N. Kohli contended that time was the essence of the contract executed between the parties but the respondent failed to discharge his part of the obligation in terms of the agreement within the specified period, as such, the agreement stood recinded between the parties and the earnest amount as per clause No.5 of the agreement forfeited. The learned counsel made reference to the provisions of sections 11 and 37 of Contract Act and placed reliance on section 55 of the Act. Touching to the merits of the case, the learned counsel submitted that money orders in question were not remitted by the respondent which purports to have been sent by one Haji Dad Karim, not a party to the agreement therefore, such remittances cannot equated to the discharge of contractual obligation on the part of the respondent, which even if presumed, to have been sent on the correct address remain inconsequential, thus, it cannot be treated as valid tender nor the appellant was bound to receive such remittance, moreover; without prejudice to the above pleas, the same were not sent on the address given in the agreement. According to the learned counsel such facts were withheld by the respondent which came to light during the statement of C.W.1 recorded by this Court and the statement of respondent recorded at appellate stage will not improve the case of the respondent. The learned counsel further argued that the money order coupons produced by CW.1 do not reveal that the amount was sent on behalf of the respondent and there is no evidence except the
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afterthought statement of respondent that the appellant had shifted from the address given in the agreement or was not available on such address, inasmuch as; Dad Karim was not examined to substantiate the plea that money orders were sent by him on behalf of the respondent. The learned counsel strenuously argued that in the given facts and circumstances of the case the respondent was not entitled to the discretionary relief, as such; the impugned decree is not sustainable and the suit is liable to dismissal. He placed reliance on 1920 Indian Cases (I.C.) Vol. 57 Mad. 458. 8. Mr. Muhammad Hashim Kakar, the learned counsel for the respondent submitted that time was not the essence of the contract because the specification of the time period for payment of the balance amount of sale transaction and clause No.5 of the agreement was meant together the intention of the parties about the agreement to be specifically performed. He further submitted that substantial part of the agreement was performed by the respondent and pursuant to the agreement the possession of the house in question too was regularized in favour of the respondent, and; that in cases of immovable properties, where a substantial performance of the agreement has been made, the time specified for the performance of the remainder part of liability would not generally be treated, as essence of the contract; rather the intention of the parties is to be looked into while construing such document and in such-like cases where the discretion has been exercised by the Court, may not be ordinarily interfered with. He placed reliance on the reported judgments i.e. 1988 CLC 1546, 1984 CLC (Kar.) 3462, 1982 CLC 81 and 1995 SCMR 1431. The learned counsel further contended that the respondent did not commit breach of contract who repeatedly approached to the appellant for the purpose and finally remitted the balance amount to the appellant vide money orders, which fact is indicative of the intention of the respondent that he wanted to discharge his contractual obligation even within the stipulated period. According to the learned counsel no one except the respondent would have remitted the amount of Rs.3,50,000 to the appellant who received back the amount, due to non-delivery of the money orders; he contended that the learned trial Court in view of the available evidence on record appropriately and in accordance with law exercised the discretion in favour of the respondent, which; in the circumstances of the case is not open to any interference. 9. We have considered the respective contentions put forth on behalf of the parties in the light of the record of the case and the law, besides the impugned judgment which has been gone through. It is the case of the respondent that he is in possession of the house in question which was initially obtained by him on rent and an amount of Rs.17,000 was deposited with the appellant by way of security deposit towards rent and on 16-9-1996 a sale agreement in respect of the abovementioned house was executed between the parties whereby the appellant agreed to sell the same to the respondent against consideration amount of Rs.8,00,000 (Rs. Eight lacs) out of which an earnest amount of Rs.4,50,000 (Rs. Four lacs fifty thousand) was paid to the appellant and this earnest amount was paid in the manner that an amount of Rs. Four lacs was deposited in the bank account of appellant, Rs.33,000 was paid in cash, whereas; the security deposit of Rs.17,000 adjusted towards the earnest amount of the transaction. As per sale agreement the balance amount of Rs.3,50,000 was to be paid within six months of the date of execution of the agreement i.e. By or before 16-3-1997, and; that the respondent throughout remained ready and willing to discharge his part of the contractual obligation, who a week prior to 16-3-1997 accompanied by witnesses approached to the appellant and tendered to him the balance amount of the sale transaction, which was not received by the appellant on the pretext that the agreement already stands executed, so the respondent was not to be in hurry and that the appellant would himself contact him, so that the title of suit property be also at the same time transferred in favour of the vendee. Thereafter, according to the respondents' case he again approached to the appellant and offered him to receive the balance amount in cash, to which he
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did not agree and thus, being constrained he remitted the balance amount to the appellant through money orders which were returned as undelivered. As such it has been contended in the plaint that the respondent on his part tried to discharge the contractual obligation and still he is ready to pay the balance amount of the transaction to the appellant but he postponed the matter on one or the other pretext and therefore, the appellant is liable to specifically perform his part of the obligation by receiving the balance amount of the sale transaction and to convey the title of the property in his favour. The claim as lodged in the suit has been repudiated by the appellant in his written statement on the ground that the respondent failed to discharge his part of the contractual obligation within the period of six months and on his failure to pay the balance amount to the appellant, the contract stood recinded because the time specified in the agreement was the essence of the contract and therefore, as per clause No. 5 of the agreement the earnest amount stood forfeited in favour of the appellant, which fact was also communicated to the respondent. In para. No.4 of the written statement specifically, it has been averred that possession of the suit property was obtained by,the respondent on payment of the earnest amount of the sale transaction, who thereafter avoided to pay the balance amount, despite repeated demands and several visits made by the appellant for the purpose. According it has been averred that the relief being discretionary in nature, the respondent is not entitled to seek specific performance of agreement in the abovementioned…
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