2015 PLP 701 (YLR)

AMER RAZA NAQVI, J.

Brief facts of the case are that according to the contents of the plaint, plaintiff entered into an agreement with the defendant No.1 for purchase of Suit property being a plot of land bearing No. 37/1, 3rd Zulfiqar Street, Phase VIII, measuring 500 Sq. Yds. The total sale consideration was agreed as Rs.16,300,000 (Rupees sixteen million three hundred thousand only): Plaintiff claims that he has given a crossed cheque in the name of defendant No.1 as agreed between the parties. It was further agreed that a sum of Rs.900,000 will be paid on or before 21-1-2012 and such pay order was prepared but defendant No.1 refused to honour the terms and conditions agreed between the parties. Legal notices were exchanged and the defendant No.1's stand was that Rs.900,000 were required to be paid by 21-1-2012 but defendant was approached on 24-1-2012. The ground for refusal given in the reply was that the date was fixed as 21-1-2012 and on such date payment was not made. Learned counsel for the plaintiff says that neither the terms and conditions between the plaintiff and defendant No.1 are denied in the legal notice given by them nor in the written statement but the only pretext for non-honouring the terms is that payment was not made on 21-1-2012. He says that even the verbal contract between the parties is binding on them. He relies on two judgments of Honourable Supreme Court of Pakistan (1) 1993 SCMR 183 and (2) 2010 SCMR

537. Learned counsel says that they have never asked defendant No.1 not to encash the cheque of Rs.100,000 and further that on 21-1-2012 they have sent Kamran Qureshi who was Estate Broker and facilitated the deal. Learned counsel for the plaintiff says that such fact has been denied by the defendant that he was approached on 21-1-2012, however it has been admitted that on 24-1-2012 defendant No.1 was approached through Kamran Qureshi. Learned counsel says that the pay order dated 24-1-2012 has been annexed as Annexure B-2. On the other hand learned counsel for the defendant No.1 says that no payment has been made by the plaintiff till date and interim injunction is operating against them. Learned counsel for the defendant further says that no doubt terms and conditions mentioned in annexure P-1 were agreed between the parties but the payment of Rs.900,000 was required to be paid on 21-1-2012 and time was essence in this matter. Learned counsel further stated that in such situation no prima facie case existed in favour of the plaintiff and balance of convenience is also not in his favour and therefore injunction cannot be granted. He has relied on 2007 CLC 1058 and 2014 MLD

368. I have heard both the learned counsel and perused the record with their assistance. It is an admitted position that the parties have agreed to the terms and conditions mentioned in annexure P-1 and in my humble view such terms and conditions are binding on the parties. The cheque has not been encashed by the defendant No.1 although according to defendant No.1 it was at the request of plaintiff and it is also fact that pay order was prepared by the plaintiff on 24-1-2012 which has been annexed with the plaint. In the case of Ghulam Hussain v. Sher Alam Khan facts and circumstances were different from the present case. In the other case as well the suit was filed after 16 years. In view of the facts that the substance of the agreement is not disputed by the defendant No.1 and defendant No.1 is refusing to honour the agreement only on the ground that there was delay of three days in offering payment. This matter can only be resolved by adducing evidence. In such facts and circumstances in my humble view plaintiff has made out a case for injunction prayed and defendant No.1 is required to honour the terms and conditions of the agreement however he has to deposit the sale consideration. In above facts and circumstances I confirm interim injunction earlier granted to the plaintiff subject to the condition that plaintiff will deposit entire sale consideration as mentioned in annexure P-1 with the Nazir of this Court within one month amounting to Rs.16,300,000 (Sixteen million three hundred thousand only). Defendant No.1 shall not encash the cheque of Rs.100,000 and shall return the same to plaintiff After receipt of the amount Nazir will invest the said amount in some profitable scheme sponsored by the Government. There was an order dated 20-3-2014. Learned counsel for the defendant No.1 says that he needs two weeks time for compliance of the same. Time is allowed. Plaintiff has already filed documents in his possession. Learned counsel for the plaintiff says that he has complied with the order and has filed documents along with his statement. At this stage learned counsel for the defendant No.1 has returned the cheque of Rs.100,000 to the learned counsel for the plaintiff. Learned counsel for the defendant No.1 has also submitted Special Power of Attorney executed by the defendant No.1 in favour of the attorney which is taken on record subject to all just exceptions. This order is only for the purpose of C.M.A. No.1343 of 2012 which is allowed in above terms. AG/R-25/Sindh Application accepted.