1. ' KHILJI ARIF HUSSAIN, J.- Plaintiff filed suit for specific performance of agreement of sale in respect of Property bearing No, 110/11, situated at Khayaban-e-Iqbal, Phase-VIII, Defence Housing Authority, Karachi.
2. Brief facts for the purpose of deciding the suit are that plaintiff approached Messrs Al-Jabal Estate through its proprietor for the purpose of purchasing a plot whereas defendant No,l approached Messrs Mahenti Estate for sale of his Plot bearing No, 110/11, situated at Khayaban-e-Iqbal, Phase- VIII, Defence Housing Authority, Karachi,(hereinafter referred to as said property). Both the estate agents contacted each other in connection with sale and purchase Of the plot and on 21-8-2002 the defendant offered to sell his plot for a total consideration of Rs,45,00,000 through his estate agent which offer was accepted by the plaintiff and plaintiff made the advance payment of Rs, 1,00,000 against a receipt dated 21-8-2002. The plaintiff paid a further amount of Rs, 1,00,000 and Rs,2,50,000. The balance amount of Rs,40,50,000 was to be paid on or before 15-9-2002 and defendant No,l has to deliver the possession of the plot and original title documents to the plaintiff at the time of execution of documents in favour of the plaintiff for transfer of the plot in his name in the office record of DHA. It is stated that defendant No,l was under obligation to acquire "No Objection Certificates" from all concerned departments/authorities including no objection in connection with any arrears of payment in respect of the said property before the date when plaintiff was to pay balance sale consideration. On 15-9-2002 plaintiff was ready and willing to pay the balance sale consideration to the defendant No, 1 and approached estate agents for performance of the agreement to sell. On 16-9-2002 a meeting was held in the office of the defendant's estate agent where defendant No, 1 demanded entire remaining balance of sale consideration without executing proper sale-deed or agreement as well as without showing "No Objection Certificates" from the concerned departments/authorities. On 14-9-2002 an advertisement appeared in newspaper that defendant No, 1 had entered into an agreement of sale with someone else and since defendant No,l was not ready to perform his part of obligation the plaintiff filed suit for specific performance.
3. The defendant No, 1 filed written statement and not disputed that he agreed to sell the plot in question to plaintiff for a total sale consideration of Rs,45,00,000 out of which he had received a sum of Rs,4,50,000 and balance amount of Rs,40,50,000 was payable on or before 15-9-2002. The defendant denied that title documents of the property was not in his custody and plaintiff has failed to pay balance sale consideration in terms of the agreement of sale as such is not entitled for the performance of the agreement. It was stated that the defendant No,l not only personally approached the plaintiff but also sent notice to Administrator, DHA on 16-9-2002 and through publication in newspaper in Daily Star dated 17-9-2002 inviting attention of the plaintiff and his agent to make sure final payment within three days from the date of notice and get property transferred in his name; It was stated that the defendant No,l was not ready to give more time to the deal and as such deal was cancelled as plaintiff failed to pay the amount within the time fixed in the agreement. The defendant No,,1 also served legal notice dated 19-9-2002 through his Advocate informing that plaintiff, on account of his conduct, that the amount paid by him has been forfeited. It was stated that defendant was ready and willing to perform his part of obligations and that it was the plaintiff who did not fulfil his promise and miserably failed to make balance payment in terms of the agreement even though he was given full opportunity and personally approached by defendant No, 1 in this regard. On the basis of the pleadings following issues were framed:---
(1) Whether the plaintiff has failed and refused the payment of balance sale consideration?
(2) Whether the defendant has failed, and neglected his part performance of the sale agreement with plaintiff dated 21-08-2002?
(3) Whether the defendant, has not avoided, neglected to honour his commit and not failed in obtaining the N.O.C. From the concerned authorities for sale of his plot to the plaintiff?
(4) Whether the plaintiff is not entitled for the relief prayed by him?
(5) What should the decree be?
4. ' Plaintiff appeared in witness-box produced agreement dated 21-8-2002, Copy of NIC of defendant, Receipt of Rs,4,50,000---Eclipse from newspaper Dawn dated 17-9-2002, Notice from the defendant's Advocate with TCS Envelope, reply given by his Advocate registration receipt as Exhs.5/2 to 5/13. During cross-examination defendant produced receipt dated 28-8-2002 as Exh.15.
5. The plaintiff also examined P.W. Zahid Sharif proprietor for Real Estate Business. On behalf of the defendant, defendant appeared in the witness box and also produced various documents including statement of account as Exh.12/2 to Exh.17/22. Defendant also examined Syed Tahseen Haider, proprietor of Real Estate Business in the name of Hi-Ness International Muhammad Zikar proprietor of Real Estate Business.
6. ' Heard Mr. Muhammad Aziz Khan, learned counsel for the plaintiff and Mr. M.Aminullah Siddiqui, learned counsel for the defendant.
7. ' Mr. Muhammad Aziz Khan, learned counsel for the plaintiff argued that plaintiff agreed to purchase the property in question from the defendant in total sale consideration of Rs,45,00,000 out of which a sum or Rs,4,50,000 was paid to defendant and balance amount was not paid on 15- 9-2002 as defendant failed to obtain/provide required "No objection certificates" from the concerned authorities. In reply Mr. Muhammad Aziz Khan, learned counsel for the plaintiff relied upon the cases of Mst. Amina Bibi v. Mudassir Aziz PLD 2003 SC 430 and Shabbir Ahmad v. Zahoor Bibi and others PLD 2004 SC 790.
8. ' Mr. M. Aminullah Siddiqui, learned counsel for the defendant No,1 argued that in terms of the agreement entered into between the parties the plaintiff was required to pay balance amount on or before 15-9-2002 and plaintiff failed to pay the same despite repeated requests made by the defendant in this regard. The defendant also served notice upon the defendant calling upon him to pay the balance amount on the date agreed but despite said notice plaintiff failed to pay the same as such defendant has rightly cancelled the agreement entered into between the parties. In support of his contention learned counsel relied upon the cases of Abdul Hamid v. Abbas Bhai- Abdul Hussain Sodawaterwala PLD 1962 SC 1 and Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344.
9. ' I have taken into consideration respective arguments advanced by the learned Advocates for the parties and perused the record.
10. ' My findings on issues are as under:--- ISSUE No,1: ' On 21-8-2002 parties entered into an agreement whereby plaintiff agreed to purchase and defendant agreed to sell the property in question for a total sale consideration of Rs,45,00,000 out of which a sum of Rs,1,00,000 was paid at the time of agreement against receipt Exh.5. The plaintiff thereafter paid a sum of Rs,3,50,000 which was aknowledged by the defendant through receipt Exh.7. In terms of both Exhibits 5 and 7 balance amount was to be paid on or before 15-9-2002. An advertisement also appeared in newspaper dated 17-9-2002 calling objection from general public in regard to transaction entered into between the parties. The plaintiff in his statement stated that remaining amount as per agreement was to be paid on or before 15-9-2002 after furnishing original documents and clearances certificates to him and further that it was for the defendant to get the date fixed from D.H.A and on that day payment was to be made in front of the Secretary of the Authority and then transfer of the plot was to be made in his favour. It was stated that plaintiff tried to contact and no contact was established, On 14-9-2002 he along with his estate agent went to the office of estate agent of the defendant where the defendant also joined and on that occasion defendant refused to honour the agreement. During meeting in the office of Mehanati Corporation after some heated discussions the estate agent of the defendant stated that he will arrange meeting after two days in the evening. On 17-9-2002 the plaintiff take note of a sale note in newspaper in which about of the sale of plot in question by the defendant filed suit for specific performance. In the cross-examination plaintiff admitted that photocopy of the Transfer Order dated 6-4-2002 was given to him by the defendant and he produced the same as Exh.14. The plaintiff in his cross-examination also admitted that he did not write any letter during intervening period to the defendant. The plaintiff admitted that Exs.5,7 and 15 do not mention that no objection certificate will be obtained by the defendant from DHA. In reply to a suggestion that plaintiff had no amount to pay, therefore, the plaintiff failed to pay the same on 15-9-2002 the plaintiff stated that he can produce statement of account showing plenty of bank balance. In reply to a suggestion plaintiff stated that he had cash with him on 14-9-2005 when meeting was held between plaintiff and defendant in the office of the defendants estate agent but neither in the memo of plaint nor in the examination-in-chief or in any other document such statement was made by the plaintiff. The plaintiff's witness Zahid Sharif of Real Estate Business in his statement stated that he asked the plaintiff for Pay Order and he did not arrange the same. This statement of the plaintiff's own witness clearly established that on 14-9-2005 the plaintiff had not prepared the pay order for the balance amount which was to be paid to the defendant oh before 15-9-2005.The plaintiff's witness further made statement that in the meeting held on 16-9-2002 the plaintiff had asked for extension of time of 10 to 15 days and then requested for four days' time. This statement of the plaintiff's witness established beyond any shadow of doubt that plaintiff was not in a position to pay balance sale consideration amount within the stipulated period of time. The defendant also in his examination- in-chief stated that on 15-9-2002 that plaintiff and Zahid Sharif were present in the office of defendant's estate agent and they requested for 15 days more time.
11. ' For foregoing reasons issues are answered in affirmative.
12. ISSUES NOS.2 to 5: ' I would like to discuss these issues together as they are interconnected. As per memo. Of plaint it was agreed between the parties that the plaintiff has to pay balance sale consideration of Rs,40,50,000 on or before 15-9-2002 and defendant has to deliver possession of the plot and all original title documents to the plaintiff and also to execute proper documents in favour of plaintiff for the transfer of the plot in his name in the office of defendant No,2 and all other departments in connection with the sale. It was alleged in the memo. Of plaint that from 15-9-2002 to date, the plaintiff has been ready and willing to make payment of balance amount to the defendant No,1 and repeatedly approached defendant and his estate agent for performance of the agreement in accordance with law and on 16-9-2002 a meeting was held in the office of defendant's estate agent where defendant demanded the entire balance payment without executing proper sale- deed or agreement as well as without showing no objection certificates from the concerned departments/authorities. The plaintiff in his examination-in-chief stated that remaining amount as per agreement was to be paid on or before 15-9-2002 after furnishing to him the original documents and clearance certificate. It was stated that on 14-9-2002 the plaintiff and his estate agent went to the office of estate agent of the defendant where defendant also came and defendant stated that he will arrange a meeting between the parties after two days. On 17-9-2002 a sale notice appeared in the newspaper that someone has purchased the plot in question from the defendant. The plaintiff's witness in his examination-in-chief stated that he asked the plaintiff for pay order on 14-5-2002 but he did not arrange the same and on the other hand defendant was asked to prepare the documents which he also did not prepare. The witness stated that plaintiff did not furnish any explanation for not giving pay orders. In the meeting on 14-9-2005 between the parties the plaintiff asked for extension of 10-15 days' time for the payment of the balance amount and thereafter asked for at least four days. From the evidence of plaintiff's witness. It appears that plaintiff was not in a position to pay balance sale consideration on or before 15-9-2002 and it was for this reason E that he along with his estate agent first requested 10-15 days' time to make payment of balance amount and then asked for four days' time. The receipt (Exh.5) provides that the balance amount of Rs,44,00,000 was to be paid on or before 15-9-2002 at the time of verification of transfer documents before the concerned officer of DHA. In the receipt Exh.7 while acknowledging a sum of Rs,1,25,000 received by the defendant from the plaintiff, it is again categorically stated that final payment will be made on 15-9-2002. None of the these two documents shows that the balance amount was to be paid at the time of transfer of the property in the office of DHA. Exh.5 provides that balance amount was to be paid on or before 15-9-2002 at the time of verification and not at the time of transfer of the property in question in favour of the plaintiff. The said documents also provide that buyer has an option to get the property transferred in his own name or in favour of any other person. On 16-9-2002 that is just on the next day when the balance amount was to be paid by the plaintiff to the defendant, the defendant addressed a letter to Administrator Defence Housing Authority that the defendant is ready and willing to transfer the plot in question provided that the plaintiff pays balance amount within three days from the date of notice and get plot transferred in his name and after that he will not be in a position to give more time and deal between the parties would be cancelled. The defendant also got notice published in the Newspaper dated 17-9-2002 (Exh.8) calling upon the plaintiff that since final payment was to be made on or before 15-9-2002 and the plaintiff was not able to arrange full payment, called upon the plaintiff and his agent to make sure that final payment shall be made within 3 days from the date of notice and get the property in his name thereafter he will not be in a position to give more time and deal will be revised and cancelled. Despite giving notice to make payment within three days' time the plaintiff failed to pay balance sale consideration and defendant by a legal notice dated 19-2-2002 (Exh.9) informed the plaintiff that since plaintiff has failed to pay the balance sale consideration in time the amount paid by him forfeited. The plaintiff replied the notice and stated that he had already filed the suit for specific performance in the Court. Suit for specific performance was failed on 21-9-2002 and while issuing notice; defendant was restrained to create third party interest. On 26-11-2002 following order was passed:-- ' "Under the circumstances the plaintiff is required to deposit the balance amount of sale consideration before the Nazir of this Court on or before 2-12-2002. With the consent of the learned counsel for the defendant No,1 it is further ordered that in case of failure of the plaintiff to deposit the balance sale consideration amount before the Nazir within the stipulated period, he will loose this right to seek further relief. In that case defendant No,1 may deposit the amount of Rs,4,50,000 earnest money, before the Nazir of this Court, as offered by the learned counsel for the defendant No,1 within next week i.e, on or before 11-12-2002."
13. ' On 29-11-2002, plaintiff filed an application under section 148, C.P.C. To extend the time for depositing the amount of Rs,40,50,000 upto 23-12-2002, in the interest of justice as his some outstanding amount will be released on or before 21-12-2002. The plaintiff even on 23-11-2002 failed to deposit the balance amount.
14. ' On 3-3-2003 an application under section 151, C.P.C. Was, filed by the defendant with a prayer that since the plaintiff has failed to deposit balance amount the suit may be dismissed. The application filed by the plaintiff was dismissed on his failure to deposit the balance amount.
15. ' Apparently, aggrieved by the order plaintiff filed H.C.A. No,275 of 2004 and on 3-1-2005 it was ordered that status quo was granted subject to deposit of balance amount of consideration with the Nazir of this Court during course of the day which amount the plaintiff deposited.
16. ' From facts stated above one can come to the conclusion that despite of indulgence extended to the plaintiff to perform his part of obligation to establish that he was ready and willing to perform the agreement, the plaintiff miserably failed to perform his part of obligation. It is evident from the record that not only the plaintiff failed to get pay order prepared for the balance required amount on the date when same was payable i.e, 15-9-2002 further as stated by the plaintiff''s own witness the plaintiff asked for extension of time first 10-15 days and then 4 days. The defendant served notice upon the plaintiff giving him three days, time to pay the balance amount. Even if it is accepted that the time given for the payment of balance sale consideration on or before 15-9- 2002 was not the essence of the contract, the plaintiff failed to tender the amount within reasonable time thereafter.
17. ' In a suit for specific performance it is for the plaintiff to establish that he was always ready and willing to perform his part of obligation. The plaintiff not only failed to deposit the balance amount of sale consideration pursuant to the consent order dated 26-12-2002 after filing of suit 'for specific performance, to demonstrate his willingness to perform the agreement within the time given by the Court which order apparently was passed by the consent of the learned Advocate for the plaintiff, by which plaintiff gave up his right of performance in case of failure to deposit the balance amount. The matter not ended here, the plaintiff filed an application for extension of time to deposit the amount upto 23-12-2002 but again he failed to deposit within the time requested by him. The amount was deposited after about three years of the date fixed in the agreement when the balance amount, was payable by the plaintiff.
18. ' As regards the plaintiff contention that the defendant failed to obtain no objection certificate from the various authorities such was not requirement of the agreement between the parties and even so it was not difficult for the plaintiff to ascertain whether any amount was due and payable by the defendant on the property in question to any department or authority, the defendant produced statement of account issued by the PDHA dated 17-12-2002 Exh.22 from which one can see that on the day i.e, 15-9-2002 when the agreement was to be performed no amount was due and payable in respect of the development charges of ground rent etc., the learned Advocate for the plaintiff in support of his contention that time was not essence of the contract relied upon the case of Mst.
19. Amir Bibi v. Mudassar Aziz PLD 2003 SC 430. I have gone through the said judgment and it appears that in the said judgment it was held that breach has been committed by the seller and not purchaser (as in this case) to perform his part of obligation and there is no cavil for the proposition as laid down in the said judgment intention to make time of the essence of contract must be expressed in unmistakable and it may be inferred from what was passed between parties before, but not after the contract is made. It was further held that equity will not assist where there has been, undue delay on the part of one party to the contract, and other party has given him reasonable notice to perform his obligation within definite time. In the instant case looking to the circumstances of the case it appears that the plaintiff as well as defendant knew the date well that payment has to be made on or before 15-9-2002 and it was for this reason a meeting was arranged first on 14-9-2002 and thereafter in the meeting of 14-9-2002 as stated by the plaintiff's own witness the plaintiff request for 10-15 days time to make payment of the balance amount and then asked for 4(four) days' time the defendant vide his notice dated 16-9-2002 given three days' time to make the payment although three days cannot be termed as reasonable time but from the conduct of the plaintiff it appears that the plaintiff not only failed to pay or tender the balance sale consideration within reasonable time thereafter even miserably failed to pay amount after filing the suit the plaintiff himself through his Advocate offered to deposit balance amount oil or before 23-2-2002 will not be entitled for the equitable relief for the specific performance. From the order dated 20-2-2004 it appears that on the said date plaintiff was asked by the learned single Judge whether he will deposit balance sale consideration and requested for another three days time.
20. Matter not ended here.
21. ' On the other hand, the defendant in terms of the order dated 26-11-2002 deposited the amount of Rs,4,50,000 received by him from the plaintiff within the stipulated period of time.
22. ' In view of above, suit is dismissed with no orders as to costs, however, the amount deposited by the defendant along with the profit be paid to plaintiff.