MUZAMMILULLAH KHAN vs PAKISTAN STEEL MILLS (PVT.) LTD. and another

ORDER

1. ' On the 24th May, 1993, the defendant held an auction of the goods consisting of heavy vehicles and construction machinery. The auction was held subject to the terms and conditions which, admittedly, were circulated prior to the auction. Para 6 of the terms and conditions provided that "the bidders after acceptance of the bids shall make 25% payment of the bid in cash or by pay orders in favour of Pakistan Steel as an earnest money and the balance of purchase price shall be paid within 7 days of acceptance of the bid by the auction committee unless period extended by the competent authority". It was also provided that if the balance amount of the bid is not paid within the period or extended period specified, the earnest money shall be forfeited in favour of Pakistan Steel and the goods may be sold by re-auction or otherwise". At the auction, the plaintiffs bid of Rs,54 lacs was accepted and on the same day, he deposited Rs,13,50,000 being 25% of the bid amount. It is a common ground that the balance amount of Rs,40,50,000 was to be paid by 7th June, 1993, but that the plaintiff paid only Rs,27,81,000 on that day and requested the plaintiff to be allowed to pay the remaining amount of Rs,12,69,000 by the 15th June, 1993. The plaintiff alleges that he was allowed up to the 15th June, 1993, to pay the balance but could not do so because that date was unexpectedly declared a public holiday on account of announcement of Budget on that date and that, consequently, he made the payment on 16th June, 1993, by a Pay Order which, according to him, was handed over to Mr. Manzoor, I/C Stores of the defendant No,1, but which was returned by the latter three days later because General Manager of the defendant No,1 did not agree to accept the same. The defendant by its letter, dated the 21st June, 1993, cancelled the transaction on the ground that the plaintiff had defaulted in making payment in time.

2. ' The plaintiff, in the circumstances, claims that he is entitled to possession of the specific movable property payment of the remaining balance of Rs,12,69,000 and income tax, at 3% amounting to Rs,1,62,000. He also claims, in addition to specific performance, damages amounting to Rs,50,00,000 on account of the blocking of his capital and expenses of this litigation.

3. ' The case of the plaintiff is that there was no default in payment of the remaining balance of Rs,12,69,000 because that payment had to be made on the 15th June, 1993, but could not be made on that day because it was declared holiday unexpectedly on account of announcement of the budget; and that the payment was actually made on the following day by handing over the pay order to Mr. Manzoor, an officer-in-charge of stores of the defendant No,1. The said Marizoor has in his counter Affidavit denied that any pay order was handed over to him or that it was returned to the plaintiffs attorney three days later. It is not quite clear whether the defendant No,1 had extended the time for payment up to the 15th June, 1993, as requested by the plaintiff by his letter dated the 6th June, 1993 (Annexure D/3 to counter-affidavit) because no reply to that letter has been produced but, assuming that the period was so extended, it is open to doubt whether the plaintiff handed over the pay order for Rs,14,31,000 on the 16th June, 1993. If the pay order had been handed over as alleged and returned three days later surely the plaintiff ought to have protested immediately; instead, he waited until after the receipt of the defendant's letter, dated the 21st June, 1993 cancelling the transaction, before making the allegation that the pay order was handed over on the 16th June, 1993. Secondly, no explanation has been given as to why in this case payment was made by handing over the pay order whereas earlier payments of Rs,13,50,000 and Rs,27,81,000 were made by deposits in the account of the defendant No,1 with Allied Bank of Pakistan, Ltd.

4. Under section 12 of the Specific Relief Act, 1877, specific performance of any contract may be enforced when there exists no standard for ascertaining actual damage caused by non- performance of the act agreed to be done or when the act agreed to be done is such that pecuniary compensation for its non-perforamcne would not afford adequate relief or when it is probable that pecuniary compensation cannot be got for nonperformance of the act agreed to be done. None of these conditions exist in this case and there is not even an allegation in the plaint that any of these circumstances exist. The plaintiff has, therefore, failed to show prima facie case for specific performance. Similarly, no prima facie case for grant of permanent injunction has been made out. Section 54 of the Specific Relief Act provides that a perpetual injunction may be granted to prevent the breach of an obligation and that, where such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter of that Act. Chapter II deals, with specific performance of contract and includes section 12 which has been referred to above.

5. The rules contained in section 12 of the Act are, therefore, relevant in considering whether the plaintiff is entitled to the relief of perpetual injunction; and since none of the circumstances envisaged by that section is even alleged to exist, it is clear that the plaintiff has not disclosed prima facie case for grant of permanent injunction. It may be observed that in the affidavit in support of the application there is an averment that the plaintiff has a "strong prima facie case" and that he will "suffer irreparable loss in case the injunction as prayed is not granted". That, however, is a bare assertion without anything to support it and is really in the nature of incantation or "mantra" with no substance.

6. Even assuming that the plaintiff has a prima facie or even an arguable case, there is nothing to show that, if temporary injunction is not granted, the plaintiff would sustain irreparable loss or damages, that is, such injury as cannot be compensated for in damages. The property in the suit consists of movable goods whose price can be ascertained at any time and the damages, if any, which may be suffered by the plaintiff can be ascertained without too much difficulty. Mr. Akhtar Mahmood submitted that the plaintiff will suffer irreparable injury because the money paid by him is lying with the defendant No,1 and that he will not be able to get the very goods which he contracted to purchase. If the defendant No,1 is wrongfully withholding the plaintiff's money, the plaintiff will have his remedy for recovery thereof alongwith such damages as he may have suffered. Mr. Akhtar Mahmood said he would be satisfied if the defendant No,1 is ordered to refund the plaintiff's money; but that obviously cannot be done at this stage. As for the goods in question, it is not the plaintiff's case that similar goods cannot be obtained elsewhere.

7. ' Finally, the balance of convenience would appear to lie in favour of the defendant No,1 because if it is restrained from disposing of the goods and the plaintiff does not succeed in the suit, the defendant No,1 will suffer loss because the goods will in the meantime deteriorate and there would be depreciation in value.

8. ' The above are the reasons for the short order made earlier in the day dismissing the plaintiff's application.