ZARINA CHUGHTAI Versus Mst. SHAHNAZ AKHTAR
MAULVI ANWARUL HAQ, J.‑‑ ‑This judgment shall dispose of Regular First Appeal No.282 of 1994 and Regular First Appeal bearing No.255 of 1994.
2. On 8‑3‑1986, respondent No. 1 filed a suit against the appellants and respondents Nos.2 and 3. Later House Building Finance Corporation was added as defendant No. 10 in the suit. In the plaint it was stated that appellant No. 1 entered into an agreement to sell the property mentioned in para.2 of the plaint for a total consideration of Rs.8,58,000 to respondent No. 1. It was then explained that appellant No. 1 is the owner of Plot No.74 while her husband Sh. Allah Ditta was the owner of Plot No.75 and that they had jointly constructed a house on both the plots; that the appellant No. 1 entered into an agreement on her behalf as also on behalf of Sh. Allah Ditta acting as his General Attorney; that a sum of Rs.3,40,000 was paid as earnest money on various occasions and the executant had agreed to execute a sale‑deed and to get it registered before 24‑10‑1985. The date of agreement is stated to be 24‑7‑1985 that despite the service of a notice on the appellants and respondents Nos.2 and 3 they have not performed their part of the contract including the clearing of the liability of the House Building Finance Corporation arid purchase of Stamp Papers that appellant No.1 expressed her inability to execute the sale‑deed on 24‑10‑1985 of the consequences of the death of her husband. With these averments a decree for specific performance of the agreement was sought and in. the alternative a decree for recovery of Rs.6,80,000 was prayed for with interest. In the written statement filed by the appellants, both original as well as amended execution of the, agreement dated 24‑7‑1985 in the manner stated in the plaint, was admitted. Receipt of Rs.3,40,000 as earnest money was also admitted. The remaining terms of the agreement were also admitted. It was A however, asserted that it was for respondent No.1 to have cleared that liability of Rs.1,50,000 of House Building Finance Corporation and that without clearing the said liability, performance of the agreement was not possible. This failure on the part of respondent, No. 1 was termed as a breach resulting in the cancellation of the agreement and forfeiture of the said amount of Rs.3,40,000. It was explained that Sh. Allah Ditta died on 17‑10‑1985 and the power of attorney stood revoked and as such it was not possible for the appellant No. 1 to further act on behalf of the heirs of the late Sh. Allah Ditta, some of whom were minors.
3. Respondents Nos.8 and 9 admitted the entire contents of the plaint. They, however, insisted that their share in the consideration amount be paid to them.
4. Following issues were framed by the learned trial Court on 26‑9‑1987:‑‑
"(1) Whether the defendant No. 1 and her husband Sheikh Allah Ditta had contracted to sell the disputed property to the plaint for a consideration of Rs.8,58,000 and received an earnest money of Rs.3,40,000? OPP
(2) ??????? Whether the plaint had failed to abide by the terms of the contract, if so, to what effect? OPD
(3) ??????? If Issue No. 1 is proved them whether, the plaintiff is entitled to decree for specific performance of contract as prayed for? OPP
(4) ??????? Relief."
5. Following additional issues were framed on 27‑6‑1989:‑‑
"(3‑A) Whether the defendant No. 1 is not the guardian ad litem of respondents Nos.2 to 7? If so, to what effect? OPD‑1
(3‑B) Whether the extension of time for the execution of the agreement to sell in dispute is valid qua the rights of the defendants Nos.2 to 7, if Issue No.3‑A is not proved?"
6. Evidence of the parties was recorded. Vide a judgment and decree dated 5‑10‑1994, the suit filed by the respondent No.1 was decreed subject to deposit of balance consideration of Rs.5,18,000 on or before 4‑11‑1994. The encumbrance of Rs.1,50,000 was transferred to respondent No. 1 with a direction to pay the same over and above the said amount of consideration. The rights of House Building Finance Corporation in the matter of recovery of loan were kept intact.
7. Against the said decree and judgment dated 5‑10‑1994, Regular First Appeal bearing No.282 of 1994 has been filed by the present appellants to seek the setting aside the entire judgment and decree of the leaned trial Court with Regular First Appeal No.255 of 1994 has been filed by Mst. Zareena Chughtai respondent No. 1 herein, as she feels aggrieved of the burden placed upon her by the learned trial Court to pay the loan amount of Rs.1,50,000 over and above the settled amount of consideration.
8. The learned counsel for the appellants contends that the learned trial Court has misread. the evidence on record, particularly the agreement between the parties while holding that respondent No. 1 has not committed any breach by not clearing his liability of the House Building Finance Corporation in tote manner agreed. The learned counsel has also tried to argue that the appellant No. 1 was not competent to execute the agreement on behalf of the other L. R. of Sh. Allah Ditta. The learned counsel for the respondent No. 1, on the other hand, argues that agreement has been fully performed by his client who was otherwise ready and willing to perform the same and as such he has rightly been held to be entitled to the specific performance of the agreement while pressing R.F.A. bearing No.255 of 1994, the learned counsel argues that the impugned decree inasmuch as it places burden upon respondent No. 1 of the clearance of loan liability towards House Building Finance Corporation, over and above the payment of the amount of consideration agreed upon between the parties is against the record. The learned counsel .for the respondents Nos.2 and 3 reminds the Court of the rights of his clients to share the amount of consideration.
9. We have gone through the trial Court record, with the assistance of the learned counsel for the parties. Both the contesting parties i.e. the plaintiff and the contesting defendants in the trial Court have questioner the reading of the agreement by the learned trial Court inasmuch as the matter of payment of the liability to House Building Finance Corporation. is concerned. We may here reproduce the relevant portion of the agreements which are Exh..P.1 and Exh.D.1, respectively on the record. There is no dispute regarding the execution or the statement of terms in the agreement:‑‑
10. To our minds a plain reading of the said terms of the contract in it overall context goes to show that the total consideration was settled at Rs.8,58,000. A sum of Rs.3,40,000 had been received by the executants of the agreement by the time of execution, the receipt of which amount was acknowledged. Balance amount of Rs.5,18,000 was to be paid on 24‑7‑1985 and within the said time the respondent No. 1 was to pay Rs.,1,50,000 to the House Building Finance Corporation and to adjust the said amount against the said balance amount of consideration. We have given some thought to the respective contentions of the learned counsel for the contesting parties vis‑a‑vis the said condition, as noted by us above. To our mind an option was given to the respondent No. 1, either to pay Rs.5,18,000 on or before 24‑10‑1985, or to pay Rs.1,50,000 before the said date to House Building Finance Corporation and to adjust the said amount against the balance. This intention is clear when one reads the conditions as to the payment of balance amount alongwith the said statement together for facility of reference we reproduce the relevant portion hereunder:‑‑
11. We, therefore, do not agree with the learned counsel for the appellant that non‑payment of the said amount of Rs.1,50,000 could result in the cancellation of the agreement in the manner urged by the learned counsel. However, the fact remains that the amount was not paid and this fact will be considered in the latter part of this judgment.
12. As to the said second contention of the leaned counsel, the same is the subject‑matter of the said Issues Nos.3‑A and 3‑B. What happened was that unfortunately Sh. Allah Ditta, husband of the appellant No. 1 died on 17‑10‑1985 i.e : before the agreement could be completed. Out of his heirs, appellants Nos.2 to 7 are minors. Now admittedly the appellant No. 1 agreed to extend the period of performance from 23‑10‑1985 to 24‑2‑1986. The reasons, of course, are stated in the written statement itself which are that without obtaining the mandatory orders, certificates and permission from a Guardian Court/Judge, further performance of agreement was not possible by the appellant No.1 inasmuch as the said heirs of Sheikh Allah Ditta are concerned. The learned trial Court has rightly held that while extending the said agreement the appellant No.1 had not acted or for that matter did not even purport to act as the guardian of the said minors, co‑owners of the property. However, nothing turns on the said fact: It is apparent on the face of the record that minors could not have been called upon by the respondent No. 1 to perform the agreement entered into by their father. However, in the suit which was brought without much loss of time, the said minors were properly sued and we find that formal proceedings were undertaken. to appoint the guardian ad litem of the said minors.
13. Coming to Regular First Appeal No.255 of 1994 filed by respondent No. 1, we have already referred to the relevant portion of the agreement in detail above. There is no doubt in our minds that the learned trial Court has proceeded to misread the said portion of the agreement more to the detriment of the respondent No. 1 than to that of the appellants. It stands stated in absolutely unambiguous terms in the agreement that the amount of Rs.1,50,000 if deposited by the respondent No. 1 with House Building Finance Corporation was liable to be adjusted against the balance amount. We, therefore, find that respondent No.1 could not have been burdened with payment of Rs.1,50,000 over and above the amount of settled consideration. However, the matter does not end here. The learned counsel appearing for the House ‑Building Finance Corporation reports that the amount due to the House Building Finance Corporation against the loan account of appellant No. 1 or her husband by now exceeds Rs.4,00,000. Now the respondent No. 1 was given an option to make the deposit with House. Building Finance Corporation and to adjust the same against the balance amount of consideration. To our minds, respondent No. 1 must have been informed by the appellant No. 1 of her position because of the death of her husband and the problems being faced by her. in the matter of the compliance of the contract. Though not in an express manner yet we can read in the plaint that the respondent No. 1 was aware of the said situation. She ought to have made the said deposit to remove the said encumberance so as to avoid accumulation of interest/mark‑up on the said amount. She opted not to do so: We are, therefore, of the opinion that although the respondent No. 1 (appellants in R.F.A. No.255 of 1994) cannot be burdened with payment of Rs.1,50,000, over and above the agreed amount of consideration but at the same time she is to be held liable for the consequences of the non? deposit, the option whereof was given to her while balance amount was still payable.
14. We also find that vide an order dated 20‑3‑1997 a direction was issued by this Court for investment of the amount deposited by decree ?holder/respondent No. 1 in some Government profit bearing scheme.
15. As a result of the above discussion, R.F.A. bearing No.282 of 1994 filed by Mst. Shahnaz. Akhtar and others is dismissed while R.F.A. No.255 of 1994 filed by Zarina Chughtai plaintiff/decree‑holder is allowed inasmuch as the amount of loan due to the House Building Finance Corporation to the extent of Rs. 1,50,000. shall be adjustable against the balance amount of the consideration i.e. Rs.5,18,000. This amount of Rs.1,50,000 shall be withdrawn by an authorised officer of the House Building Finance Corporation upon identification by the learned counsel of the House Building Finance Corporation against the duly executed receipt to be adjusted against the said loan account. However, the accrued, interest on the said amount in the said loan account shall be paid by the plaintiff/decree‑holder.
16. The, amount deposited by the plaintiff/decree‑holder in compliance with the impugned decree and invested in accordance with the terms of the order, dated 20‑3‑1997 of this Court, passed in C.M. No.1‑C of 1994 and C.M. 1‑C of 1996 alongwith the interest/profit that had accrued on the same after deduction of the said amount of Rs.1,50,000 shall be disbursed amongst the appellants and the respondents Nos. 2 and 3 is the following manner:‑‑
1. Shahnaz Akhtar, appellant. ??????????????? 99/176
2. Appellant No.2. ??????????????????????????????? 14/176
3. Appellant No.3. ??????????????????????????????? 14/176
4. Respondent No. 2. ?????????????????????????? 14/176
5. Appellant No.4. ??????????????????????????????? 7/ 176
6. Appellant No. 5. ?????????????????????????????? 7/ 176
7. Appellant No.6. ??????????????????????????????? 7/176
8. Appellant.No.7. ??????????????????????????????? 7/176 ??
9. Respondent No.3. ??????????????????????????? 7/176
17. No order as to costs.
H.B.T./Z‑128/L ??????????????????????????????????????????????????????????????????????????????????? Order accordingly.