1986 PLP 2540 (CLC)

‑‑‑Ss. 54 & 55‑‑Agreement of sale‑‑Breach of‑‑Compensation for damage‑ ‑‑Entitlement of vendor‑‑Vendor of property under sale, held, was entitled to be compensated for damages which such vendor‑‑Fad proved to have suffered due to breach of agreement of sale‑‑Compensation for damages having been granted to vendor after fair calculation, amount claimed by him under penal clause of agreement of sale could not be allowed in circumstances. S. Ansar Hussain for Plaintiff. Nemo for Defendant. Date of hearing: 24th February, 1986. The plaintiff has filed this suit for declaration that the agreement, dated 26‑8‑1982 between the plaintiff and the defendant be declared cancelled in view of the breach and default on the part of the defendant, recovery of possession, damages, cost and permanent injunction against the defendant. The defendant was served with summons when she appeared and Mr. Muhammad Ali Sheikh filed power on her behalf. She also filed a counter‑affidavit to the plaintiff's application under Order XXXIX, Rules 1 and 2, C . P. C stating that she had no intention to transfer the property in dispute. The dispute relates to a Bungalow No. C‑170/1 Block 'J' North Nazimabad, Karachi. This was constructed on a plot measuring about 565.24 sq. yards. The, plaintiff entered into an agreement with the defendant on 26‑8‑1982 whereby the defendant agreed to purchase it for a total consideration of Rs. 4, 80,

000. Copy of the agreement duly signed by the defendant has been filed by the plaintiff. The agreement inter alia provides that the defendant shall pay the balance amount at the time of registration within 60 days and in case she fails to perform her agreement she was to pay Rs.300 per day for 30 days and restore the possession to the plaintiff. According to the plaintiff the defendant defaulted in payment of the amount, although the‑plaintiff was ready and willing to perform his part of the agreement. In this regard notice was also issued to the defendant but without any result. As the defendant has not appeared, the matter was put up for final disposal on 23‑2‑1986. On that day the plaintiff was directed to produce title documents to show that he is the owner of the property Today he has filed affidavit of proof with which original Conveyance Deed in his favour, dated 31‑7‑1975 has been filed. This Conveyance Deed relates to Plot No. C‑170, which was sub‑divided later as is witnessed by a letter of the Karachi Development Authority, dated 9‑8‑1982. It, therefore, seems that after purchasing the property the plaintiff got the plot sub‑divided into two portions numbered as C‑170 and C‑170/1. The dispute is in respect of No.C‑170/1 measuring 565.24 sq. yards. The facts stated in the plaint have been reiterated in the affidavit of proof. The averments made by the plaintiff also find support from the counter‑affidavit of the defendant who has not denied any averment and has undertaken not to transfer the property. Thus, the property in dispute is admittedly in her possession. So far the agreement for sale to the defendant is concerned it has fully been established from the avermepts which have been made in the plaint and the affidavit of proof with the documents fixed with it. The next question arises about the breach of agreement. There is no denial of this fact, nor any reply has been given by the defendant to show that she has paid the amount, or that she is ready and willing to pay the amount within a resonable time, or i8 terms of agreement, nor any material has been produced that she has filed any suit for specific performance of the agreement. Mr. Syed Ansar Hussain the learned counsel for the plaintiff on my equerry has made a statement that to his knowledge and instructions so far no suit has been filed by the defendant for specific performance of the agreement. Considering the statement made in the affidavit, the defendant has committed breach of agreement. As the defendant has committed breach and is not ready h and willing to perform her part of the agreement, the said agreement ` cannot be enforced particularly when the plaintiff does not specifically seeks its enforcement, but want it to be cancelled due to the breach committed by the defendant. Besides the claim for cancellation of agreement, the plaintiff has also prayed for restoration of possession. Since the defendant has! committed breach she is not entitled to continue in possession of the premises in dispute under this agreement. The plaintiff, is, therefore, entitled to possession of the property in dispute. The plaintiff has also claimed Rs.1,70,000 by way of damages on account of illegal use and occupation of the premises from 26‑10‑1982 till 31‑7‑1985 and till the recovery of possession. He has claimed damages @ Rs.5,000 per month. There is no evidence on record to show that the prevailing rent in that area is Rs.5,000 per month. Except the statement of the plaintiff no independent evidence of any corroborative nature has been produced. A party is entitled to damages which he has proved to have suffered due to breach of the agreement. The learned counsel has referred to clause 10 of agreement to show that in case of breach, the defendant was liable to pay Rs.300 per day. This was for a period of 30 days. It was a penal clause and not a compensation for the breach of agreement. Even if this would have been the agreed rate of compensation, the plaintiff would have claimed rent or compensation @ Rs.9,000 per month and not Rs.5,000 per month. In these circumstances, 1 am not inclined to grant compensation g Rs.5,000 per month. In the absence of any evidence to that effect, it cannot be said that the disputed premises has no rental value at all. It will only be estimated as the defendant has agreed to compensate the plaintiff. In the facts and circumstances of this particular case I would determine the rate of compensation at Rs.1,500 per month. This will be calculated for the period from 27‑11‑1982 till the filing of the suit, and, thereafter the defendant will be liable to pay from date of suit till recovery at the same rate. The next claim is about Rs.9,000 being the amount payable under clause 10 of the agreement. As I have held that this is a penal clause, and in view of the fact that compensation has been granted to the plaintiff this amount cannot be allowed. Claim in this regard is rejected. According to the learned counsel for the plaintiff @ Rs.1,500 per month as determined earlier, the plaintiff would be entitled to recover Rs.58,000 upto 31‑1‑1986. The learned counsel has admitted that the plaintiff had received Rs.80,000 at the time of agreement which is, still lying with him. He would, therefore, be entitled to adjust Rs.58,000 in the amount lying with him. The suit is, therefore, decreed for cancellation of agreement, restcaration of possession, recovery of charges for use and occupation of the disputed premises @ 86.1,500 per month, cost of the suit and further that the defendant is restrained from transferring or in any manner encumbering the property or handing over possession to any one else except to the plaintiff. The nutshell is that after adjusting the amount of Rs.58,000 and Rs:15,000 being the court‑fee paid in the suit, the balance shall be deposited in Court. The decree shall be executed on depositing the said amount in Court and if any further amount is left to be paid to the plaintiff, the same shall be adjusted from the amount lying in the Court. The amount deposited in Court shall not be paid to the defendant without permission of the Court. H . B . T . Suit decreed.