131/2007 Civil Revision Mst. Saeeda Begum V/S Bundoo Khan (through LRs) (Applicant) V/S Bundoo Khan (through LRs) (Respondent)

131/2007 Civil Revision Mst. Saeeda Begum V/S Bundoo Khan (through LRs) (Applicant) V/S Bundoo Khan (through LRs) (Respondent) Sindh High Court

Bench: Hon'ble Mr. Justice Nazar Akbar Order Date: 23-SEP-16

Specific Relief Act (I of 1877)--- ----S. 12---Contract Act (IX of 1872), S. 55---Suit for specific performance of agreement---Time, essence of contract---Scope---Plaintiff entered into agreement to sell with defendant and paid Rs.30,000/- as earnest money and Rs. 30,000/- as part performance of contract of total sale consideration of Rs. 1,10,000---Later on defendant avoided to perform the agreement which led to the institution of suit after having some conversation through legal notice---Suit was decreed in favour of plaintiff by Trial Court and findings of Trial Court were set aside by lower appellate court which ordered the return of paid sum of Rs. 60,000/- as forfeiture of advance amount was not mentioned in the agreement to sell---Validity---First legal notice from defendant contained two dishonest gestures, firstly, sale consideration was declared as Rs. 1,20,000/- secondly, forfeited the amount of Rs.60,000/- paid by plaintiff---Time of one month as stipulated in agreement to sell was conditional and not essential---No clause of forfeiture of advance amount received by defendant existed in the agreement---Defendant had neither cleared dues/tax nor had given proof of having paid the dues/tax against property within one month---Defendant also admitted execution of sale agreement and payment of more than 60% advance from total sale consideration---Plaintiff, who paid more than 60% advance to defendant and promptly paid the balance consideration in court, earned the discretion of court---Revision was allowed rendering judgment and decree of Trial Court restored. [Paras. 8, 9 & 10 of the judgment]