' ZAFAR AHMED KHAN SHERWANI, J.---This is a suit for specific performance of the contract of sale in respect of a Plot bearing Survey No,114/30 measuring 875 sq. Yds (Survey Sheet No,35-P/1) situated in Bock Nos. 7 and 8 Overseas Cooperative Housing Society Ltd. Karachi (the plot in question), dated 24-11-2004, between the above parties and also for damages amounting to Rs,10.00 Million for the loss allegedly sustained by the plaintiff on account of non-performance the contract. The relief of damages, however, was not pressed during the course of argument by the learned counsel for the plaintiff.
1. As per pleadings of the parties they are not at variance as far as the execution of the sale agreement is concerned, whereby it was agreed that the plot in question owned by the deceased mother of the defendant was agreed to be sold to the plaintiff by him as her general attorney in consideration of Rs,15.8 Million out of which initially a sum of Rs,100,000 through Cheque No,2341309, dated 11-11-2004 was paid to the defendant by the plaintiff and thereafter another sum of Rs,1.5 Million through Pay Order No, 006069, dated 24-11-2004 was paid at the time of execution of the agreement and the balance sale consideration of Rs,14.2 Million was to be paid on or before 5-1- 2005 at the time of handing over vacant possession of the plot in question to the plaintiff or his nominee along with surrender of sublease in his favor. Accordingly, the plaintiff issued a notice in daily Dawn, dated 27-11-2004 calling for the objection from all the interested persons on the proposed transaction and then a notice, dated 5-2-2005 was served by him calling upon the defendant to be ready for the registration of the conveyance deed and to provide surrender deed of "A" licence. Thereafter no action was takenby either parties till 2-10-2005 when the defendant replied the notice as referred to above and informed that since time was the essence of the contract and since the plaintiff had failed to arrange for the payment of the remaining amount of the sale consideration by 5th January, 2005, therefore, the agreement did not subsist and asked him to take back his amount of Rs,1.5 Million paid as part payment of the sale consideration, whereas the earnest money of Rs,1,00,000 stood forfeited. Receiving the said notice the plaintiff filed the suit.
2. The defendant has only contested the suit on the plea that since the plaintiff instead of specifying the date and time as to the payment of the balance sale consideration he served notice, dated 31-12-2004 asking him to provide surrender deed of "A" licence although he knew that the same was to be executed by the concerned officer of Overseas Cooperative Housing Society Union Ltd. On receipt of the balance amount as mentioned above. He also took the plea that the plaintiff wanted, to linger on the matter in violation of the terms of the agreement because he was looking for a buyer of the said plot so that he might sell the same on higher price and make money out of it without any substantial investment. He referred the conduct of the plaintiff in this regard and alleged that he had sent two brokers to him to request for extension of time in payment of balance sale consideration but it was refused by him. The claim of damages of the plaintiff was also emphatically denied by him on the ground that he was himself defaulter in execution of the sale-deed and prayed for the dismissal of the suit.
3. Out of the pleadings of the parties following issues were settled.
ISSUES:
(1) Whether the defendant wilfully and deliberately avoided executing conveyance deed in favor of plaintiff in terms of clause 5 of the agreement, dated 24-11-2004 on or before 5-1-2005 in spite of receipt of notice, dated 31-12-2004?
(2) Whether any meeting was purposed or held on 4-1-2005?
(3) Whether the plaintiff refused to pay balance of consideration amounting to Rs,1,42,00,000 by 5- 1-2005?
(4) Whether in the circumstances of the case, the plaintiff is entitled to claim specific performance of the contract by the defendant and damages in addition thereto?
5. What should the decree ?
6.
6. On the above issues the plaintiff examined himself and the twoattesting witnesses of the sale agreement namely Abdul Wahid Lakhani and Muhammad Sohail. The relevant documents including the sale agreement were also produced by him vide Exh.P.W.1/1 to P.W.1/13 whereas the defendant examined himself. These witnesses were cross-examined by the counsel for other side.
7. I have heard the learned counsel for the parties and perused the record including the evidence produced on behalf of the parties as well as the documents as referred to above and reached to the following findings for the reasons as mentioned hereunder:- ISSUE NO.1:
8. On the above issue the case of the plaintiff was that he was fretfully willing to fulfil the terms and condition of the sale agreement rather anxious to pay the balance sale consideration and to show this he served such notice, dated 31-12-2004, but the defendant did not respond and failed to fulfil his part of contract therefore, he immediately filed this suit after the due date as mentioned in the agreement in its clause 5 i,e, 5-1-2005. Whereas the defendant's case is that no doubt the notice as referred to above was received by him but since in the said notice the plaintiff had asked him to surrender deed of "A" Licence, which was not agreed upon as per agreement between the parties, therefore, the "A" licence was not handed over to the plaintiff, who did not appear in the office of the society to perform his part of contract to pay the balance, amount of the sale consideration by the date mentioned in the agreement, hence he was not liable to execute any sale-deed after that date and accordingly the plaintiff was informed through a notice, dated 8-6-2004 by his Advocate.
From the above contentions of the parties it is, clear that the bone of contention between the parties is the "A" licence before payment of balance sale consideration. In para.6 of his affidavit in evidence the plaintiff deposed that since it had appeared to him that the defendant was trying to avoid execution of conveyance deed in his favor on or before the fixed date therefore, she and her attorney (now the defendant) avoided to provide surrender deed of "A" licence for the preparation of the conveyance deed therefore, he served a legal notice, dated 31-12-2004, Exh.P.W.1/12: He further deposed that he had been trying to contact the defendant, but the same was avoided by him till 10-2-2005 when he replied his notice through his Advocate, dated -10-2-2005, in which he informed that the agreement in question did not subsist any more. Ile however, admitted in his cross-examination that the defendant was required to hand over the said sub-licence on the date of payment. The relevant portion of his cross-examination is reproduced hereunder:-- "It is correct that the balance payment under clause-5 of theagreement was to be made on or before 5-1-2005. It is correct that under clause 5 of the agreement the defendant on the date of payment was to hand over vacant possession along with original documents signed and verify transfer documents and surrender sub-licence."
' In view of this admission it has become crystal clear that in spite of the fact that the defendant was not bound to provide surrender deed of .A. License (sub-license), but the plaintiff asked him to do so vide para.4 of the notice, Exh.P.W.1/11. When the defendant was not required to provide the said document before the execution of the sale-deed and receiving the balance sale consideration but the plaintiff tried to enforce his will and on account of resistance by the defendant the plaintiff did not pay the balance sale consideration to him.
9. Mr. Zaki, the learned counsel for the plaintiff contended that since the defendant had not performed his part of contract although the plaintiff had done so and he even did not reply the notice as referred to above therefore, the plaintiff is entitled to get the specific performance of the contract through this Court. In support of his contention he relied upon the case of Mst. Batool v.
Mst. Razia, reported in 1998 MLD 1933.
10. It is not out of place to mention here that during the course of arguments the learned counsel for the plaintiff was inquired by the Court that whether the plaintiff had obtained any date from the concerned Sub-Registrar with regard to the registration of the sale-deed in respect of the plot in question for 5-1-2004 or before, he frankly replied in negative. Similarly when he was enquired whether any stamp paper was purchased by the plaintiff for execution of the sale-deed to show his bona fide interest in the agreement, he again replied in negative.
11. Conversely, Mr. Lari, the learned counsel appearing on behalf of the defendant, contended that the sub-license from "A", copy of which is at Exh.P/1-9, was to be surrendered before the concerned officer after receiving the balance amount of the sale consideration by the defendant, therefore, the defendant, could not be compelled to do so. He has relied upon cases reported in 1990 CLC Page 1649, AIR (37) 1950, Nagpur 238, AIR 1921 Cal. 179 and Sarfraz Haider v. Khadija Bibi 1994 SCMR Page 2189.
12.
12. On careful consideration of the above arguments and the case-law cited by both the learned Advocates I have reached to the conclusion that the plaintiff has failed to produce tangible evidence to prove the issue. On the other hand it has come in evidence that the plaintiff himself had unnecessarily asked the defendant to provide surrender deed of "A"license through notice, dated 31-12-2004 Exh. P.W. 12 and then on account of silence of the defendant he did not make any effort to get the sale-deed executed after payment of the balance sale consideration to him and to receive the possession of the plot in question as well as original documents. The case of Mst. Batool supra, relied upon by the learned counsel for the plaintiff does not support him at all because in that case the plaintiff/purchaser was not found at fault for noncompliance of the agreement of the sale, whereas in this case the default was on the part of the plaintiff and not the defendant therefore, the case is of no help whereas, in the case of Sarfraz Haider, supra, it has been held that if the vendee is not ready and willing to perform the contract it has no equity in his favor and the specific performance has to be refused. Similar principle has been laid down in the cases from Indian jurisdiction which have been relied upon by the learned counsel for the defendant.
3. In view of the above discussion it has become clear that, the defendant cannot be held responsible for the breach of the contract, hence the issue is decided in negative.
ISSUE NO.2:
14. This issue was framed on account of the allegation of the defendant in this written statement that the Estate Broker of the plaintiff Mr. Wahid P.W.2, had contacted him with the request that the plaintiff wanted to meet him in person and therefore a meeting was fixed on 4-1-2005 at the residence of defendant, but on that day instead of the plaintiff his brother Aslam Rangoonwala came along with the Estate Broker with the request that the date of final payment be extended till 23-1-2005, which request was declined. The defendant made similar statement in his affidavit in evidence vides para. No,6. Although the plaintiff denied this during his cross-examination when he was confronted this through such suggestion but on account of the fact that the defendant was not cross-examined on such statement given by him in his affidavit in evidence which has gone unchallenged therefore, I do not have any reason to discard this statement because of non- crossexamination by the counsel for the plaintiff on such statement. It is also to be noted that the said Broker (either of the plaintiff or of the defendant) had visited the house of the defendant along with the other broker in between 30-12-2004 and 5-1-2005. Although he had denied that any extension in time was sought to make the final payment, but this explanation appears to be sham because when the date for execution of the sale-deed and already been fixed therefore, there was no occasion to further inquire about the date of its execution. In these circumstances the issue is decided in affirmative.
ISSUE NO.3:
15. Since it has been decided while deciding the issues Nos.1 and 2 that the plaintiff has himself failed to execute his part of contract and he did not appear on or before 5-1-2005 in the office of the society where E the plot in question is situated therefore, it amounts to refusal of payment of the balance sale consideration to the defendant by 5-1-2005, hence the issue is decided accordingly.
ISSUE NO.4:
16. As held above that the plaintiff failed to pay the balance of the therefore, he cannot claim the specific performance of the contract by the sale consideration by the fixed date without any plausible reason defendant through this Court. It is well-settled that specific performance of contract is discretionary in nature to be exercised judiciously, equitably and on well-recognized judicial considerations as required by section 22 of the Specific Relief Act. It has been held in PLD 1962, Dacca, 655 that to grant specific performance of the contract is absolutely within the discretion of the Court and no hard and fast rigid rule can be laid down when and where this discretion be exercised by the Court. The discretion that shall have to be exercised by the Court will depend upon the circumstances of the case, but that discretion must be judicial one.
17. In the present case since the plaintiff has failed to show that he had performed his part of contract and it has been proved that he did not pay the sale consideration to the defendant on or by the fixed date without any plausible reason therefore, he cannot claim the specific performance of the contract and this Court cannot use its discretion in his favor judiciously.
18. Since the prayer of the damages was not pressed by the learned counsel for the plaintiff during the course of arguments, therefore, the issue is decided in negative. ISSUE NO.5:
19. In view of the findings on the above issues it has become crystal clear that the plaintiff has failed to show any ground to grant decree for specific performance in his favor and against the defendant, therefore, the suit is dismissed with costs, however, he would be entitled to receive back the amount of 1.5 Million from the defendant and the amount, which he has deposited in Court which has been invested by the Nazir in profit bearing scheme in terms of the Court's order.