1999 PLP 3345 (MLD)

S. 12

Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2

Suit for specific performance

Interim injunction against disposal and alienation of suit property

Defendant admitted existence of sale agreement and receipt of earnest money

Balance amount was not paid in time and plaintiff was not ready to pay stamp duty

Effect

Willingness of plaintiff to complete agreement was one of basic ingredients while considering suit for specific performance of an agreement

Plaintiff was not found to be ready and willing to complete the sale

Application was dismissed. Shamsul Qamar Warsi for Plaintiff. Adrian Ahmed for Defendants I have heard learned counsels. The plaintiff through this application seeks a stay of disposal of the suit property or the alienation of it in a suit for specific performance. The learned counsel for the plaintiff's contention is that a sum of Rs. 5 lacs was paid to the defendant No. 1 as earnest money and the balance amount of Rs.13 lacs as per terms of the agreement was to be paid within 60 days. Mr. Qamar Warsi, learned counsel for plaintiff states that a photocopy of the pay order for the balance amount was sent to the defendant No. 1 within time but in spite of that the defendant No. 1 served a notice on the plaintiff whereby he wished to rescind the agreement. According to him the plaintiff has fulfilled all the terms and conditions of the agreement. He now claims specific performance of the said agreement. The learned counsel for the defendant admits the existence of the sale agreement as well as the receipt of the earnest money but claims that the balance amount under the agreement was to be paid to the defendant No. 1 within sixty days but only a photocopy of the pay order for the balance amount was sent. He also states that the plaintiff was not ready and willing to abide by the agreement inasmuch as few days before the expiry of the agreement, she indicated through a letter which is filed as Annexure D-2 to his counter-affidavit that the plaintiff was not in a position to pay stamp duty etc. which are required to be paid while registering the sale of the property. He also says that subsequently the defendants have also filed a suit in the Lower, Court through which they have sought recission of the sale agreement. One of the basic ingredients while considering suit for specific performance of an agreement is the willingness of the plaintiff to complete the agreement. The other important requirement being that the plaintiff himself must have abided by the terms of the agreement. Looking at the facts of the case brought out by the plaintiff and not denied by defendants, I am not persuaded that the plaintiff was ready and willing to complete the sale or that she fully abided by the terms of the agreement. Consequently this application is dismissed. However, the defendant No. 1 is directed to deposit the earnest money of Rs.5 lacs in the Court where it is to be invested and if the suit finally succeeds then the said amount alongwith interest accrued will insure to the plaintiff as provided for in the sale Agreement otherwise the same will be returned to the defendant No.

1. Q.M.H./M.A.K./M-348/K Application dismissed.