65/2012 II.A. Muhammad Saeed Akhtar & another (Appellant) V/S Taha Mobeen Qureshi & Ors (Respondent)
Sindh High Court
Bench: Hon'ble Mr. Justice Nazar Akbar(Author)
Order Date: 10-JUN-20
Specific Relief Act (I of 1877)--- ----Ss.12 & 19---Civil Procedure Code (V of 1908), O. XXXVIII, R.5---Suit for specific performance of agreement to sell---Transfer of suit property to the subsequent purchaser---Breach of contract---Compensation, award of---Attachment of property before judgment---Scope---Suit was decreed with the direction to the executant of agreement to sell to execute conveyance deed in favour of plaintiff but no relief of possession was extended---Validity---Plaintiff had paid all the consideration amount to the defendant/builder of housing society---Defendant had sold suit land in favour of subsequent purchaser and he was bound to refund amount so realized by him to the plaintiff---Builder had failed to complete construction by due date and even he had not returned consideration amount received by him to the plaintiff---Subsequent purchaser had possession of suit property and its sale deed---Execution of conveyance deed through Court in favour of plaintiff would render sale deed in favour of defendants as ineffective---Case of plaintiff for specific performance against the builder had been made out but it had become a case of hardship for the subsequent purchaser---Relief of specific performance, even if contract was enforceable, was discretionary and same could be withheld by the Court---When Court had concluded that grant of relief of specific performance had been made out but it would be a case of hardship to other side or unfair and inequitable to any third party who was not at fault then it should compensate the plaintiff---Builder had breached contract and only execution of title document was not specific performance of a contract of sale of immovable property when plaintiff was not in possession of suit premises---Execution of title document had to be coupled with delivery of possession of suit property to the plaintiff---Court could not grant decree of possession of suit property to the plaintiff owing to the presence of bona fide purchaser of suit premises---Plaintiff should have been granted relief of specific performance with additional compensation, in circumstances---Court in suit for specific peformance could grant two decrees of compensation combined in one judgment in a suit for specific performance---Order of specific performance might be substituted with compensation for it with additional compensation for breach of contract---High Court observed that court, in the present case, should have passed an adequate decree of compensation both as substitution of specific performance and additional compensation for breach of contract---Decree of specific performance of an agreement to sell through execution of title document against the builder in favour of plaintiff was in the field with no result and there was likelihood that builder would avoid the said decree---High Court passed order for attachment of movable and immovable property of builder who had received consideration amount from the plaintiff but had not returned the same---Plaintiff was entitled for adequate compensation keeping in view escalation in valuation of suit premises and value of currency which had gone down due to inflation in the country---Property of builder would remain attached till the judgment was executable---Second appeal was allowed accordingly. Mohiuddin Molla v. The Province of East Pakistan PLD 1962 SC 119 and Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 rel.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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