2018 PLP 713 (YLR)

MUHAMMAD FAISAL KAMAL ALAM, J.

Matter is fixed for arguments on maintainability of this suit and orders on application [C.M.A. No.15078 of 2017] filed under section 114, of C.P.C., seeking review of the order dated 05.10.2017, whereunder, inter alia, further seven days' time was granted to the present plaintiff (Hamood Mehmood) to deposit the balance sale consideration and in default, it was observed, that suit will be dismissed.

2. Mr. M. Ishaq Ali, learned counsel for the Plaintiff, argued that on account of non-compliance of contractual obligation by Defendant No.1, the sale transaction could not be completed in terms of the subject Sale Agreement dated 24.02.2006 ("Sale Agreement"), available at page-19 of the Court file, relating to sale of property-One Unit Villa, No.C-14, admeasuring 260 Square Yards, in the project known as Darakshan Villas, at Phase-VI, D.H:A., Karachi, viz. "Suit Property". On a query, learned counsel for the Plaintiff further stated that since cause of action still subsists in favour of present Plaintiff, therefore, instant lis cannot be dismissed in default; for not paying/depositing balance sale consideration of Rs.29,250,000/- (Rupees Twenty Nine Million Two Hundred and Fifty Thousand only). Per learned counsel, a substantial amount of Rs.3,250,000/.- (Rupees Three Million Two Hundred and Fifty Thousand only) being 10% of the total sale consideration was already paid to said Defendant No.1 being vendor of the Suit Property. It is further argued by learned counsel for the Plaintiff that in view of Statement of Defendant No.1 that the Suit Property has been sold out to some third party, the plaintiff is entitled to receive back his above amount, which he paid as an earnest money.

3. The above arguments have been controverted by Mr. Sathi M. Ishaque, learned counsel for Defendant No.1 and his submission was that there are various orders right up to Honourable Apex Court, in which the present Plaintiff was directed to deposit balance sale consideration, which admittedly till date has not been deposited. With regard to the refund of earnest money. the counsel for Defendant No.1 disagreed with the plea of plaintiff by making a reference to the connected Suit No.1834 of 2016 filed by said Defendant No.1.

4. Arguments of the learned counsel representing the parties have been taken into the account and record of the proceeding considered.

5. It is not a disputed fact that even under prayer clause-2, the Plaintiff has shown his willingness to deposit the balance sale consideration with the Nazir of this Court, though conditionally. Consequently, by order of 07.03.2017, this Court granted ad-interim injunction in favour of Plaintiff to the effect that Defendant No.1 was restrained from creating third party interest, subject to deposit of balance sale consideration with the Nazir of this Court. On 24.04.2017, further time was granted to the Plaintiff for depositing balance sale consideration but with a note of caution. On 13.06.2017 again seven days' time was granted for complying the earlier orders of this Court with further observation that in default, ad-interim restraining orders operating in favour of the Plaintiff will automatically be vacated and Defendant No.1 will be free to sell the Suit Property to any third person(s), if she chooses to do so, which was challenged in High Court Appeal No.30 of 2017, but without any success. Ultimately, present Plaintiff filed Civil Petition No.477-K of 2017 before the Honourable Supreme Court, which was also dismissed by the order dated 25.8.2017, copy whereof is available in Court file.

6. On 07.08.2017, this Court raised a legal Issue about maintainability of this suit in the wake of continuous default of Plaintiff in not depositing the balance sale consideration. Eventually, on 05.10.2017 a report from Defendant No.3-D.H.A was filed in compliance of the earlier order and the same is also a part of present case record. The crux of the report/stance of Defendant No.3-D.H.A is that since violations in the Suit Property have been removed, therefore, Defendant No.3 after resurveying the Suit Property will mutate the Villa in question along with the garage, in favour of Defendant No.l. This Statement was taken on record on 05.10.2017, wherein it was also observed that no issue of ownership is pending in respect of the Suit Property, which could have been a good defence for not depositing the balance sale consideration by the Plaintiff.

7. One of the main objects for giving directions to deposit the balance sale consideration in the Court is to see the bona fide of a purchaser, who invokes the jurisdiction of the Court for obtaining a decree for Specific Performance of Contract against the Defendants (Vendors): Usually, in such cases, injunctions are readily granted so that the corpus of the dispute remains intact and ultimately can be transferred to a successful party in a litigation. Similarly, the balance sale consideration is invested in some profit bearing scheme, enabling the vendor/ defendant to get an increased amount as sale consideration, having an element of compensation for the time consumed in litigation, inter alia, considering the inflationary trends. In case, a purchaser or claimant/Plaintiff is unsuccessful, the deposited amount keeping in view the facts/ record of a case, can be returned back to him with accruals in order to safeguard his interest.

8. In a recent reported Judgment handed down in Waqar ud Din Case (supra), this Court after discussing various reported decisions on the subject has concluded that non-deposit of balance sale consideration raises a legitimate adverse presumption against a Plaintiff that he is not serious in performing his agreed part of the contract or in pursuing his remedy of Specific Performance, consequently, disentitling him to a decree for Specific Performance. In the cited judgment the suit was dismissed. The other inescapable legal and factual aspect of this case is a decision of Honourable Supreme Court in the present matter (supra). In paragraph-3, the Apex Court has observed that for a party seeking a remedy of specific performance, it is mandatory that he should apply to the Court for depositing a balance amount "and any contumacious/omission in this regard would entail in dismissal of the suit or decreetal of the suit, if it is filed by the other side." In the same decision, there is also an adverse observation about the overall conduct of present Plaintiff.

9. If the present proceeding is analyzed, an undisputed position that emerges is that on the one hand, the Plaintiff for quite some time enjoyed the ad-interim injunctive relief in his favour, but despite giving ample opportunities and chances to comply with the Court orders, on the other hand, he contumaciously kept on defying all such directions/orders. After a Statement of Defendant No.3-D.H.A., with regard to the ownership of present Defendant/Vendor, which has been made part of the Order dated 05.10.2017, no justifiable reason remained with present Plaintiff for defying/violating the Court orders by not depositing the balance sale consideration.

10. About the plea of Plaintiff for refund of earnest money of Rs.3,250,000/- (Rupees Three Million Two Hundred and Fifty Thousand only), already afore-mentioned Suit of present Defendant No.1 is pending, which will proceed on its own merits and this very Issue is one of the sub judice issues in that case; additionally, in view of the discussion herein above, this request of Plaintiff cannot be acceded to or decided at this stage. However, present Plaintiff would be at liberty to seek this remedy before any forum. 11 Adverting to the review application of present Plaintiff, wherein he has prayed for recalling/reviewing earlier order of 05.10.2017. Even for the sake of arguments, the said order of 05.10.2017 is reviewed, still the Plaintiff is not absolved from his obligation to comply with the earlier Court orders for depositing the balance sale consideration, which has been maintained up to the Honourable Supreme Court, as observed in the preceding paragraphs. In these circumstances, Review Application [C.M.A. No. 15078 of 2017] is misconceived in nature and is dismissed. 11A. It is a settled legal maxim that 'one who seeks equity must also do equity'. In view of the above and following the dictum from the reported case law (supra) and the decision of the Honourable apex Court in present matter, I have no other option but to dismiss the suit of present plaintiff. Consequently, this is dismissed along with all pending application(s).

12. Parties are left to bear their own costs. ZC/H-19/Sindh Suit dismissed