Law: Contract Act (IX of 1872)

Section: 54

JUDGMENT

The plaintiff has brought this suit for specific performance of an alleged agreement of sale dated 10-4-1976 or in the alternative damages and permanent injunction. The facts material to the suit as

disclosed in the plaint are that Plot No. A-25-4 situated on Sunset Boulevard Road; Phase, II, Pakistan Defence Officers Co-operative Housing Society' Ltd., Karachi was allotted to the husband of the defendant. ' This plot was later on bifurcated and sub-divided with the permission of the Society into Plots No. A-25-B/I and No. A-25-B/ll and out of these sub-divided portions. Portion bearing No. A-25-B/I ad-measuring 1000 Sq. Yds. was gifted to the defendant by her husband and was accordingly transferred in her name by the Society on 17-6-1974. A double storey bungalow was thereafter constructed by the defendant on the aforesaid plot. The plaintiff, it is alleged, came to know in or about the first week of April, 1976, that the defendant was interested in selling the plot with building constructed thereon and having come to know this, he contacted the husband of the defendant and a meeting was fixed between the plaintiff and husband of the defendant and the defendant on 10-4-1976, at the site of the bungalow for negotiation and settlement of the terms and conditions of sale. It is alleged that in the meeting on 10-4-1976 the defendant agreed to sell the plot with construction thereon to the plaintiff for a sum of Rs. 4 lacs and upon settlement of the bargain the plaintiff paid a sum of Rs. 5,000 which was duly acknowledged by the defendant through a receipt of the same date. It is also alleged that at the time of receipt of the sum of Rs. 5,000, the defendant asked the plaintiff to pay earnest money amounting to Rs. 40,000 being the 10% of the total sale consideration and also execute a formal agreement of sale incorporating the agreed terms and conditions by 19th April, 1976. The plaintiff accord ingly, it is alleged, obtained on 19-4-1976 a pay order bearing No. OAG 067371 in the sum of Rs. 35,000 payable to defenant drawn on Habib Bank Ltd., Defence Housing Society Branch, Karachi, and also got prepared an agreement of sale incorporating the agreed terms and conditions. The plaintiff, it is further alleged as the defendant's husband at his Office alongwith his sons Nasiruddin Ahmed Bhatti and Zia Ahmed Bhatti handed him over the sale agreement and the pay order of Rs. 35,000 for passing it on to the defendent for her signature. The defendant's husband, it is alleged, kept one set of agreement and promised to see the plaintiff alongwith the defen dant to execute the agreement but instead of doing that, the defendant sent a letter dated 17-5-1976 to the plaintiff; returning the sum of Rs. 5,000 received by her on 10-4-1976 in cash in connection with the sale of bungalow through a cheque. The plaintiff thereafter served a legal notice through his Advocate calling upon the defendant to especially perform the contract of sale and also returned the cheque to her. On failure of the defendant to com plete the sale, the plaintiff instituted the present suit on 10-6-1976. The defendant in her written statement admitted execution of the receipt dated 10-4-1976, but took the stand that the plaintiff had approached the defendant with a proposal to purchase the disputed property for and on behalf of an undisclosed purchaser as estate broker and prevailed upon her to accept the sum of Rs. 5,000 as an advance promising to bring the alleged undisclosed purchaser alongwith the balance amount of earnest money amounting to Rs. 35,000 within a week of the execution of the above receipt. It was denied that the defendant agreed to sell the property to the plaintiff. It was further alleged by the defendant that as the plaintiff did not bring the undis closed purchaser and the balance of the earnest money amounting to Rs. 35,00,) by 17-4-1976, the deal between the parties came to an end and accordingly the amount of Rs. 5,000 received by the defendant on 10-4-1976 was returned to the plaintiff. On the above pleadings of the parties the following issues were framed by the Court on 22-4-1979 :(1) Whether there was any concluded sale agreement ?