2009 PLP 459 (MLD)

KHAWAJA NAVEED AHMED, J.

This is a suit for specific performance of the contract. The plaintiff has filed application C.M.A. No. 6806 of 2006 under Order XXXIX, Rules 1 and 2, C.P.C. read with sections 94 and 151, C.P.C. The .notice of this application has been given to the defendant, who has filed counter-affidavit to the application and has opposed grant of stay to the plaintiff during pendency of the suit. The main contention of the learned counsel for the defendant is that stay, if any, be granted to the plaintiff upon depositing of the balance amount with the Nazir of the Court. This matter was taken up in the morning and thereafter this Court had directed to both the counsel to negotiate amongst themselves regarding the terms of stay order and inform this Court in the second half of the day. Now, both the learned counsel are present, they have agreed upon furnishing the Bank Guarantee instead of depositing of cash amount with the Nazir of the Court, but still dispute is regarding quantum of amount. The learned counsel for the defendant says that the Bank Guarantee should be in Pak Rupees equivalent to 18.50 Million UAE Dharams, Mr. Haider Waheed has drawn my attention towards clause-5 of the sale agreement, which appears on the file of this Court on page No.47, the clause reads as under:-- "That both parties agreed that one million AED will be calculated at the rate of 16.5 Pakistani Rupees. The balance one million AED will also be calculated at the same rate but if the Rupee is devalued more than Rs.16.50 the purchaser will compensate the Vendor the difference in the rate above 16.5 Pakistan Rupee." He states as far as One Million Dharams are concerned, he is ready to furnish the Bank Guarantee on the market rate of U.A.E. Dharams, but regarding balance 8.50 UAE Dharams, he states that he may be allowed to pay Pak Rupees equivalent at the rate of Rs.16.50 per Dharam as is mentioned in clause-5. Mr. Asif Ali Pirzada, while opposing the rate on which the Bank Guarantee is to be furnished has drawn my attention towards clause-6 sub-clause (b) appearing at page No.49 of the sale agreement, which deals with schedule of the payment. "In the month of April, 2006, the Buyer will pay Rs.14,025,000 (Pak Rupees Fourteen Million and Twenty Five Thousand) Equivalent to 850,000 AED (Eight Hundred and Fifty Thousand Arab Emirates Dharams) as the second part payment of the total consideration." Mr. Asif Ali Pirzada, has further argued that due to delay in payment of sale price, this party has suffered loss in terms of interests on the amount and as such clause (5) of the agreement is now not applicable as clause (6) has been violated by the purchaser. In reply to his argument Mr. Haider Waheed states that from page No. 131 to 165 of the Court file letters show that this party had been writing letters repeatedly to the seller to complete the sale process in respect of property, but delay was on the part of the seller and not on the part of the purchaser. Mr. Asif Ali Pirzada states that the letters were received and in response to the letters his client had come to Pakistan to receive the amount but at that time the amount was not ready with the plaintiff. All these factual controversies need evidence and cannot be resolved at the stage of hearing of application under Order XXXIX Rule 1 and 2 C.P.C. Be as it may, let an issue be framed on the point that whether the Seller is entitled to any compensation in the shape of interests/rent of shops for the delay in execution of sale-deed. Learned counsel while deciding the case shall decide the above issue. As far as present application is concerned without prejudice to the rights of the parties. I, order that the plaintiff shall deposit Bank Guarantee equivalent in Pakistan Rupees One Million Dharmas at the market rate of Dharams and for balance 8.50 UAE Dharams at the rate of Rs.16.50. The Bank Guarantee directed as above shall be furnished by the plaintiff within ten days of this order. After furnishing of the Bank Guarantee the parties shall maintain status quo. Parties are directed to file issues within one week and it is further ordered that after the issues are framed in the suit, evidence shall be completed within three months by the Commissioner appointed by this Court for recording of the evidence of the parties. Parties are directed to propose the name of the Commissioner and his fees. H.B.T./A-180/K Order accordingly.