1. ' MUNIB AHMED KHAN, J.---The assertion of the plaintiff is, that he obtained Property bearing No,13/C, Block 6, P.E.C.H.S. Karachi, through Tenancy Agreement dated 18-5-2000 on rent of Rs,20,000 per month and paid U.S. $ 15,000 (Pak Rs,8,14,500) to the defendant as advance rent with the consensus that the said amount will be adjusted towards sale price if the plaintiff purchases the said property. Subsequently plaintiff entered into Sale Agreement dated 13-7-2000 and his advance of U.S. $ 15,000 was treated as advance towards the sale while balance of U.S. $ 1,05,000, as total sale consideration, was settled to be U.S. $ 1,20,000, to be paid within 60 days thereof.
2. Thereafter, plaintiff paid U.S. $ 9,500, $ 9000, $ 5000 through different demand drafts on 29-7-2000.
3. A sum of U.S. $ 3000 has also been added on account of difference in exchange rate. The defendant through her counsel's letter dated 11-3-2003, faxed to the plaintiff, demanded balance amount without executing Sale-deed and that the plaintiff has paid total sum of $ 41,500 and balance of $ 78,500 was to be paid for which he was ready, but the defendant was not prepared to execute Sale-deed of the said property hence this suit has been filed for the specific performance of the sale agreement with the prayer that the defendant be directed to execute Sale-deed of the said property and receive balance amount. Restraining orders were also requested against the defendant from creating third party interest.
4. ' The defendant submitted her reply and has raised legal objection in respect to maintainability of the suit that the plaintiff has no cause of action and that the suit was barred under the Limitation Act. On merits, the defendant has submitted that the factual position in respect to rent agreement, executing of sale agreement and handing over possession of the said property are true, but the main thing in the sale agreement was that the plaintiff was to pay balance U.S. $ 1,05,000 within a period of 60 days from the date of signing of that sale agreement, but the plaintiff paid U.S. $ 23,500 only i.e, 9500, 9000, and 5000 and despite repeated reminders and demands, he committed default in payment in terms of sale agreement, nor paid rent under the tenancy agreement and after his failure to pay the sale consideration his advance U.S. $ 15,000 was adjusted in terms of rent agreement till July, 2003 while on defendant's failure to make payment in terms of sale agreement, his advance U.S. $ 23,500 have been forfeited. She has further submitted that after committing default, the plaintiff through common friends, requested for extension of time up to December, 2001 and for this extension the parties agreed and increased sale consideration from U.S. $ 1,20,000 to $ 1,75,000 to match the prevailing market price which amount was in exclusion of $ 15,000, paid towards advance rent under tenancy agreement, but even there after the plaintiff failed to honour his commitment and has filed this suit. She has further submitted that she is an old lady and agreed to sell out her property with the condition that payment will be made in U.S.A. In U.S. Dollar within 60 days and after full payment she will execute General Power of Attorney in favour of plaintiff or his nominee, but the plaintiff has concocted the story just to grab the house as he is aware that she is an old lady facing health problems and may not be able to contest the suit and in this manner he may obtain ex parte decree. She has further submitted that after failure of the plaintiff to pay sale consideration in terms of Sale Agreement, according to his commitment, he is treated as tenant and she will seek legal action against him. She has further submitted that the plaintiff has no cause of action at Pakistan as the sale agreement was executed and payments were made at U.S.A. She has requested for the dismissal of the suit.
5. ' From the pleadings of the parties, following issues have been framed:--
(1) Whether the suit as framed is maintainable under the law?
(2) Whether the defendant agreed to sell the suit property for U.S. $ 1,20,000 or 1,75,000 ?
(3) Whether the plaintiff failed to discharge his obligation by not making the balance payment of the sale proceeds within the stipulated period of sixty (60) days from the date of signing of the sale agreement i.e, 13-7-2000 to the defendant in US Dollars in USA, as required under the agreement of sale?
(4) Whether at the request of plaintiff, the defendant extended the period of payment upto 31-8- 1001 on a revised sale price?
(5) Whether the plaintiff paid the balance sale proceeds or the revised sale proceeds within the given timeframe?
(6) Whether the plaintiff is entitled to specific performance of the sale agreement dated 13-7- 2002?
(7) Whether the plaintiff, prior to filing of the instant suit, attempted through any mode to make the balance payment of the sale proceeds to the defendant?
(8) Whether the plaintiff is entitled to adjust U.S. $ 15,000 paid on account of rent to the defendant.
6. Towards the sale consideration of the said property despite of default in payment of the balance of sale consideration by the plaintiff in time?
(9) Whether the defendant has rightly terminated the sale agreement after default on the part of the plaintiff?
(10) What should the decree be?
7. ' On the request of learned counsel evidence was recorded on commission where the plaintiff examined himself through affidavit-in-evidence and was subjected to cross-examination, while defendant herself appeared as a witness. The plaintiff in his affidavit-in-evidence has repeated contents of the plaint as narrated above and have exhibited tenancy agreement marked as 0/1, original sale agreement as Exh.P-5/2. Photocopies of three pay orders of U.S. $ 9,500, 9,000 and 5,000 marked as 0/2, 0/3 and 0/4, letter of Hiram W. Kwan, a professional Law Corporation, dated 11th March, 2003, marked as 0/5, photocopy of deed of conveyance in the name of defendant marked as 0/6 and photocopy of pay order dated 5-12-2000 for U.S. $ 15,000 dated 5-12-2000, marked as 07, copy of letter by the defendant to plaintiff as Exh.P-5/3 and a photocopy of letter by defendant dated 7-3-2000 marked as 0/8. Here it is to be noted that the documents which were not objected to and were original, were marked as exhibits while other documents have been marked with alphabet "O" and it has been left with the Court to decide as to whether those photocopies are to be taken into account or not. In that respect it is pointed out that all these photocopies produced in the evidence are the documents which have not been disputed, rather, have been relied upon and mentioned in the pleadings of the parties, therefore, they are to be considered as exhibits except Annexure 0/8 which is, although a photocopy and has not been mentioned in the pleading but is relevant to the issue and signature on it have not been disputed by either of the party therefore, it is also to be considered as Exhibit.
8. ' Mr. Latif A. Shakoor, the learned counsel for the plaintiff has concentrated on the point that the plaintiff firstly was ready to perform his part of the contract and was willing to pay outstanding sale consideration but non-payment was due to refusal of the defendant and secondly the agreement in respect to time for payment was extended by endorsement on the letter of demand by the plaintiff, which endorsement was made by her son and that lady herself has been avoiding to execute the sale-deed. He has further submitted that balance amount of US $ 78,500 has been deposited by the plaintiff in terms of the Court order dated 31-8-2004. He has relied upon 2005 SCMR 1915.
9. ' On the other hand Mr. Z.K. Jatoi has emphasized on the point that the plaintiff was bound to perform his part of contract in terms of sale agreement whereby 60 days time was fixed for payment without any pre-condition and since the lady was aged and infirm being 87 years old, therefore, it was agreed between the parties that all payment without any condition will be made in U.S. Dollar at U.S.A. While she would execute a Power of Attorney in favour of the plaintiff and that even otherwise she was willing to come to Pakistan, as she did twicely in the past and at the time of her cross-examination, to execute sale-deed, but the plaintiff failed to pay. He further argued that the intention of the plaintiff in the circumstances, surrounding the deal, was clear from the fact that he.Made payment of only $ 23,500 on 29th July, 2000, but thereafter failed to pay. He was required to complete the payment within 60 days, i.e, by or before 13-9-2000. He has urged that specific performance of the contract in the given circumstances cannot be ordered as there is no bona fide on-the part of the plaintiff. He has further stated that even if the extension in time for payment of money is to be considered then it should be' with the defendant's version that sale price was increased from $ 1,20,000 to $ 1,75,000 which was allegedly agreed at the request of the plaintiff in 2001 but even thereafter till filing of this suit in March, 2003, the plaintiff failed to pay as he was waiting for the demise of the plaintiff knowing that she is very old and suffering from several illnesses and that her only son has died in air crash. He has relied upon 1996 SCMR 137, PLD 1986 SC 497, PLD 1987 Lah. 261, 1987 CLC 2384, 1987 CLC 792, 1993 MLD 1118, PLD 1996 Lah. 582 and 1997 MLD 1821.
10. ' After hearing the arguments of learned counsel I take upon the issues seriatim. Issue No,l.
11. ' The burden Xo prove this issue lies upon the defendant but it has not taken it seriously. Even otherwise keeping in view of the fact that there was correspondence between the parties in the year 2001 and an endorsement towards alleged extension of time and enhancement of price therefore, the suit filed in March, 2003 is in time and further the suit has been filed in respect to an immovable property located in Karachi therefore, the suit for specific performance is maintainable in this Court irrespective of the fact that the agreement was executed at U.S. A. Or payment has been made and was payable at U.S.A.
12. Issue No,2, ' In respect to Issue No, 2 it is an admitted position that the property was agreed to be sold by virtue of sale agreement dated 13-7-2000, which contains a sale price of US $ 1,20,000 although the defendant has introduced the fact that price was enhanced to $ 1,75,000 in December, 2001 as the plaintiff requested for extension of time but there is nothing in writing nor any witness in this respect has been produced therefore, the issue is answered in a way that the said property was agreed to be sold for U.S. $ 1,20,000.
13. Issue No,3.
14. ' For the purpose of answering this issue it will be necessary to go through the evidence and to reproduce the assertions of the parties. Although the plaintiff has been insisting that the defendant refused to acknowledge the balance amount but he could not satisfy as to why he made payment of U.S. $ 23,500 through pay ordersj all dated 29th July, 2000 and why all these payments were accepted while the other alleged payments were refused. The plaintiff has not given the dates or amounts which were allegedly tendered nor the copies of pay order etc. Which were prepared for payment. The relevant portion of cross-examination of the plaintiff is reproduced as under:-- ' It is correct that balance of amounting to U.S. $ 1,05,000 was to, be paid within a 60 days of the execution of the agreement of sale .... It is correct that payment was not made within a 60 days.
15. Voluntarily states that I had gone to Los Angles within stipulated period of 60 days to make payment of balance consideration to the defendant but she refused to receive on the pretext that the paper of transaction were not with her ... I had written letter to the defendant to accept the payment from me. I am a graduate. It is correct that I have no where mentioned in my evidence that I had written such a letter... I did not make payment of balance of consideration at the time of presenting to her pay orders marked as 0/2 to 0/4 as she had declined to receive the same... It is correct to suggest that I had not taken out a pay order for the balance of consideration at any time to show my bona fides that I was ready and willing to make payment .... It is correct that there is no document with me to show that I had ever attempted in writing from date of execution of the agreement of sale upto the date of filing of the suit that I wanted bona fide to make payment of balance of the consideration. I knew that the defendant is an old lady and a senior citizen.
16. ' The defendant in her cross has stated ' It is incorrect to suggest, that plaintiff has approached me several times to receive balance payment and execute sale-deed.... It is incorrect that the plaintiff again come to me in the month of September, 2000 and requested me to receive the balance price and execute sale-deed. I had asked Mr. Hiram W. Kwan to write to plaintiff and ask him to make payment of balance consideration and he did write the letter marked 0/5.
17. ' The sale agreement relied upon by both the parties is consisting of four clauses only and is very clear and reproduced as under:- ' The buyer agree to purchase the property from seller. Property located at 13 C Block P.E.C.H.S. Karachi, Pakistan. Total amount of purchase is $ 120,000.00 (US dollars).
18. ' The seller has received a sum of $ 15,000.00 (US dollars). With a balance of $ 105,000.00 (US dollars) remaining, this is due within 60 calendar days of signing this agreement.
19. ' Final payment constitutes complete relinquishment of any interest seller has in property.
20. ' From the date of this agreement, buyer assumes all local costs for maintenance and taxes due on the property.
21. ' The second clause of the sale agreement imposes of condition upon the plaintiff/vendee to pay $ 105,000 within 60 days of signing of the agreement. There is no condition regarding execution of sale- deed etc. It is a fact that property had already been given in possession of the plaintiff as he was tenant thereof, therefore, he could not withheld larger part of the sale amount on the pretext of execution of sale- deed. The contentions of the plaintiff does not get any support from the sale agreement or from the factual position. It has also come on record through application of the defendant that the plaintiff has made certain alterations/additions in the property and has constructed room on the upper floor which shows that the plaintiff treated the property as his own, but he failed to pay required amount under the sale agreement. Through the evidence it has come on record that the plaintiff paid a sum of $ 23,500 within the stipulated time and it was accepted by the defendant then what was the hitch for the plaintiff to make further payment at the same time. The intention of the plaintiff is very clear that he never wanted to make payment within time as neither he prepared any pay order/draft etc. For the payment nor there is proof that he contacted the defendant on some dates for payment and she refused to accept. In the circumstances I hold that the plaintiff was liable to pay U.S. $ 1,05,000 at U.S.A. Within 60 days from 1.3-7-2000, the date of sale, agreement but he failed to perform his part of the agreement. Issue No,4.
22. ' The burden of proof of this issue lies upon both the parties as factual position in respect to extension of time as well as revision of sale price is involved, but both the parties have failed to establish their version. The plaintiff at the first hand could not establish extension of time from 60 days to onward while the defendant has put forward a revisional price of $ 1,75,000 viz. Extension of date, but she has also failed to prove the revision therefore, it is held that there was neither extension of time nor revision of sale price. Issue No,5.
23. The answer of this issue is given in Issue No,3 above. The plaintiff failed to pay the agreed price in terms of the sale agreement dated 13-7 2000 within the given timeframe.
24. Issue No,6.
25. ' Issue No,6 is a crux of entire suit and is to be decided by keeping in view the finding of Issue No,3 as well as authorities cited by the learned counsel. The plaintiff has relied upon 2005 SCMR 1915, but the said authority is not applicable in the instant case as in the said authority the payment was admittedly made but the vendor in that case disputed the payment and considered it as rent while the Court found that the said amount was towards the sale consideration and balance sale price was paid. Whereas in the instant case the plaintiff, despite initiating some payment within due time and despite keeping possession of entire property failed to pay the balance sale consideration within 60 days stipulated time.
26. ' The authorities cited by the learned counsel for the defendant i.e, PLD 1986 SC 497, 1987 CLC 2384, 1993 MLD 1118 and 1997 MLD 1084 are relevant to the suit as in PLD 1986 Honourable Supreme Court 497 has held as follows :-- ' From the above the only conclusion that can be arrived at is that the appellant has not only failed to prove that he was prepared to perform his part of the contract but in fact did not perform his part of the contract at all and is therefore, not entitled to any relief. Reliance in this respect is placed on Narinjan and others v. Muhammad Younus AIR 1932 Lah.265 wherein it has been held.
27. ' In 1987 CLC 2384 it was held as follows:-- ' But the fact remains that the appellant produced no receipt or other document to prove that he paid Rs,7,000 to the defendant or that he- sent notice to him to execute the sale-deed until the suit was instituted. It clearly shows that he did not perform his part of the contract.
28. ' In MLD 1993 1118 this Court has: held as follows:-- ' On the other hand, learned counsel of defendants Nos.l to 8 and 10 has relied, on the judgments reported as Sarfraz Hyder V. Mst. Khatija Bai 1990 CLC 1649 wherein it has been held that if a vendee is not ready and willing to perform the contract as it is, he has no equity in his favour and the specific performance would be refused. The plaintiffs may be entitled to the refund of Rs,2 Lakh and 20 thousand paid by them and to any compensation but their claim of specific performance of an apparently dead agreement of sale looks rather of doubtful merit. However, it can also not be overlooked that if eventually the plaintiffs are held entitled to the refund of the amounts paid by them to late Khawaja Muhammad Yousuf by way of part payment and to some compensation and costs, they shall be put to great difficulty at the stage of execution. I would therefore while partially rejecting C.M.A. No, 164 of 1992, direct defendants Nos.l to 8 and 10 to deposit in Court sum of Rs,5 lakh which shall be invested in same profit bearing Government securities. They shall deposit this amount before selling the land (or any part, thereof) obtained by them from K.M.C. On Manghopir Road in exchange of the suit-land. They are, however, restrained from alienating any part of this land until the above condition is fulfilled.
29. ' In another authority, 1997 MLD 1821, the Lahore High Court has held that when the vendee could not arrange balance consideration even within extended time then he cannot complain and the vendor has right to forfeit earnest amount after expiry of extended time for payment of balance amount.
30. It has also been observed from the evidence on record that there is no attempt on the part of the plaintiff despite the fact that it was in his knowledge that the defendant is an old arid sick lady and there was specific time of 60 days without any pre-condition. There is nothing on record to show that the plaintiff ever attempted towards payment of balance amount and filing of suit on his part was prompted only after issuance of notice by the defendant through legal consultant. In these circumstances the Issue No,7 is answered in negative. The plaintiff is not entitled for specific performance of the sale agreement dated 13-7-2002.
31. Issue No.7 The issue No.7 can simply be replied after going through the cross-examination of the plaintiff where he has clearly admitted that he was nothing in writing to show that he ever attempted for payment. His assertions that he attempted to pay is contrary to his evidence and he failed to prove. He has also not. Explained as to what was the hurdle in his way to pay remaining balance on the date when he made payment of $ 23,500 which was accepted by the defendant, but he has failed to prove his assertions and that even after the letter of the defendant dated 30th May, 2001 (as Exh.P-5/3) he failed to make payment. Some writing on this paper (Exh.P-5/3) made by the son of the defendant does not extend any time nor that writing can bind the defendant, even otherwise it clearly shows that the payment to be made to principal's satisfaction, hence the Issue No,7 is answered in negative. Issue Ne.8 ' Keeping in view the finding on the above issues as well as the pleadings the defendant herself has taken defence that the amount US $ 15,000 has been adjusted toward rent till July, 2003 and, she has revoked sale agreement dated 13-7-2002 and to treat the plaintiff as her tenant, therefore, plaintiff can adjust $ 15,000 towards rent as after revocation of Sale Agreement. The plaintiff has reverted back to tenancy agreement and since it was specifically mentioned in the said tenancy agreement dated 12th May, 2000, that the tenancy shall abide by all rules and regulations of Sindh Rented Premises Ordinance, 1979, therefore, the rent is to be regulated and determined in terms of Provisions of the S.R.P.O.
32. Issue No,9.
33. Considering the finding on the above issues it is declared that defendant has rightly terminated the sale agreement dated 13-7-2000 with the plaintiff as he defaulted in making payment in terms of the said sale agreement.
34. Issue No,10 In the circumstances the suit of the E plaintiff is dismissed with cost, the amount deposited by the plaintiff in this Court is ordered to be returned to him. The amount of $ 23,500 paid by the plaintiff to the defendant to be refunded after adjustment of dues against the tenancy and the property.