P L D 1962 (W (PLP)

A. R. KHARAL, J.‑This is an appeal against the judgment and decree dated 13‑5‑1959 passed by our brother Mr. Justice Qadeeruddin Ahmed in Suit No. 1001 of 1954 filed by the Karachi Port Trust appellants against the respondents‑defendants. The brief facts are that the respondents in an auction held on 2‑12‑1961 gave the highest bid of Rs. 61 per sq. yd. for plot No. 26 near Beach Luxury Hotel in an open auction bid. The terms and conditions are given in Exh.

10. The respondents handed a cheque in the sum of Rs. 22,112‑8‑0 equal to the 25% amount of the bid, payable at the fall of the hammer. They also signed the terms of the bid Exh. 10 and also the entry in the auction register containing the relevant entries. It appears from the record Exh. 11‑A that the cheque was later on dishonoured at the instance of the respondents. The appellants re‑auctioned the plot with some added area at Rs. 26 per sq. yd. The plaintiff appellants then brought a suit for Rs. 54,428‑6‑

0. This represented a difference between the contract price and the price at which the plot was later re‑auctioned and interest at 6% on the amount of the dishonoured cheque and on the amount of the difference in the prices. In the written statement the respondent‑defendants raised many pleas, namely that the plaintiff‑appellants were not the owners of plot No. 26 and had no right to auction the lease‑hold rights thereof ; the defendants denied that they had purchased any such rights or that there was a complete sale ; the defendants pleaded that it was a mere offer by them and they had the right to withdraw from it at any time before it was confirmed by the plaintiffs and the Central Government. Many issues were struck but finally both the parties agreed to two issues for trial by our learned brother. These were: (1) Whether the plot in dispute vested in the plaintiffs 7 (2) Whether there was a complete and binding contract between the parties. If not, what is the effect ? On the first issue our learned brother found in favour of the plaintiff‑appellants. On the 2nd issue he found against the plaintiff‑appellants and dismissed the suit. The point for determination for us in this appeal will be whether there was a complete and binding contract between the parties and if so are the defendants liable fin the amount sued or any portion thereof. Our finding is that the respondents are not liable. The conditions of this auction are signed by both the patties are given in Exh. 10‑ Conditions 2 to 5 are important. They are as under: "(2) The purchaser shall deposit 25% of the purchase money immediately after the auction. (3) Failing immediate payment of the deposit of 25% the lease‑hold right of the land will be put to auction again at once at the risk and cost of the original bidder. (4) The balance of the purchase money shall he paid within three months from the sate of intimation of the sanction of the Port Trust Board and Government along with the balance of the purchase money, the purchaser shall pay in advance the rent for the unexpired portion of the current official year and for the entire following and an amount sufficient to cover the expenses of making out the lease, stamp duty, and other expenses and charges incidental to the lease. (5) If the purchaser fails to pay the balance of the purchase money and other sums specified above within the prescribed period the deposit of 25% shall be forfeited to the K. P. T. Board." In this case it was argued by the learned counsel for appel lants that the cheque Exh. 11‑A was not a payment of the deposit of 25%. We feel that if this position set up by the appellant's learned Advocate is accepted then the only right given to the appellants under clause 3 of the agreement Exh. 10 is to put the lease‑hold rights of the land to auction again at once. This was not done by the plaintiffs. The re‑auction was held after a very long time. Such right of holding re‑auction after a long time does not accrue to the appellants under Exh.

10. Under clauses 4, 5 and 6 the balance of the auction amount is to be paid within 3 months of the intimation of the sanction of the Port Trust Board and Government to the lease given at the auction. Admittedly in this case no such sanction was accorded either by the Port Trust or by the Government. The only penalty under clause 5 of Exh. 10 for the purchaser who refused to pay up the balance after the sale had been con firmed is that such purchaser forfeits the deposit of 25yo of the A amount made at the time of auction. There is no provision for a later re‑auction or for the liability of the purchaser to pay the difference in case such re‑auction secured a lesser price than offered by the purchaser. There is no provision also in Exh. 10 for any penalty under clause 3 against the purchaser who fails to make immediate payment of the deposit of 25% of the purchase amount at the fall of the hammer. The only right reserved to the Port Trust was to put the lease‑hold right to auction again at once. We are clearly of the view that Exh. 10 defines the rights and liabilities of the parties and that under Exh. 10 the respondents are not liable to pay the differ ence of the price offered by them and the price later on realised by the Port Trust in the re‑suction. The argument advanced by the learned counsel for the appellants that the handing over of the cheque by the respondents amounted to an agree ment that the re‑auction could be postponed has no substance. It was never pleaded in the plaint. The respondents are not shown to have agreed to this at any time. On the contrary the written statement shows that the respondents had repudiated the transaction immediately after they bad given the cheque Exh. 11‑A by getting it dishonoured. On the supposition that Exh. 11‑A amounted to the payment of 25% of the amount of bid money there is also no liability of the respondents under the terms of Exh.

10. On that supposition it was for the appellants to intimate the sanction of the bid of the purchase by the Port Trust and the Government to the respondents before their liability to pay the balance can arise. No sanction whatsoever was obtained as has been mentioned already. The r appeal is dismissed with costs. S. B./A. H. Appeal dismissed.