Specific Performance Of Contracts Suits issues.

2023 SCMR 344... Suit for specific performance of an #agreement to sell immoveable property -- Agreement to sell -- Property mentioned in agreement not specific -- Effect -- When the property is not specific no decree can be passed in the light of section 21 of the Specific Relief Act , 1877 --- Court will refuse to specifically enforce a contract where it suffers from uncertainty ...VVVI. Must read Judgement. 2023 SCMR 555 Specific Relief Act S. 12 -- Specific performance , relief of -- Scope and pre requisites for claiming the relief of specific performance stated in this Judgement. Suit for specific performance -- Agreement to sell -- Deposit of balance sale consideration in court --- Rational for requiring the vendee to deposit balance sale consideration in Court explained in this Judgement. Suit for specific performance -- Agreement to sell -- Cheque for balance sale consideration provided to Court by vendee deposited in a profit bearing scheme on directions of the High Court -- Legality -- After filing the suit for specific performance , on directions of the Trial Court , the petitioner / vendee tendered a cheque in Trial Court along with the bank statement for substantiating the sufficiency of funds in the bank account and capacity to pay the remaining consideration -- Trial Court handed over the cheque to the officer of the Court to retain it in safe custody rather than encashing the same -- Respondents / vendors filed a revision petition in the High which was disposed with the direction to the Trial Court to deposit the subject matter cheque in a profit bearing account so that , at the conclusion of the trial , either of the parties may seek the benefit of the amount deposited pursuant to Court's order -- Plea of petitioner / buyer that the impugned order of High Court imposed a direction to the Trial Court for encashment of the cheque for the balance sale consideration solely at the instance of the vendors which was unjustified -- Validity -- While handing over the cheque to the officer of the Court the Trial Court ignored that a cheque remain valid for certain time , thereafter it loses its efficacy / validity -- When a cheque runs out its time it becomes unacceptable to the banker unless it is revalidated and confirmed by the drawer -- Mere submission of a cheque , even with the bank statement of a particular period , in Court without its encashment neither expressly means or denotes that the petitioner will surely maintain the equivalent balance in the bank account at all times , nor does it guarantee or represent that the cash flow of the equivalent amount will be maintained and reserved for payment if the suit is finally decreed by the Trial Court -- Even otherwise , if the cheque is not presented for encashment and only retained in the custody of the Court's officer , it will become stale after six months , and thereafter nothing will remain in Court to decipher the readiness and willingness of the buyer with good faith to perform his part of the contractual obligation -- Thus , there was no rhyme or reason , nor any commonsense explanation for retaining the cheque in the shelf or vault for its cosmetic value without its encashment to gauge the readiness and willingness of buyer in the suit for specific performance -- No illegality or perversity was found in the impugned order passed by the High Court --- Petition for leave to appeal was dismissed and leave was refused .2023 MLD 404 Under Section 35 of the Specific Relief Act, 1877 (the “Act, 1877”) though the suit filed by the plaintiff for specific performance of an agreement to sell may stand decreed yet the contract may be rescinded through adjudication by the Court of competent jurisdiction. As per the mandate contained in Section 35 CPC there are three occasions when the rescission may be adjudged. Two cases have been enumerated in subsections (a) and (b) of Section 35 of the Act, 1877, which are not relevant as far as the controversy in hand is concerned. The third situation is envisaged in subsection (c) of Section 35 of the Act, 1877, whereunder the Court may by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the parties in default, or altogether as the justice of the case may require.