1. The plaintiff has filed suit for specific performance of the contract, damages and permanent injunction against the defendants.
2. Succinctly, the facts of the case are that No. 1 negotiated sale House No. B-179/2004, K.D.A. Scheme 19, Khudadad Colony, Karachi, hereinafter referred as to 'disputed property' being exclusive owner entered into a sale agreement dated 28.2.2005 exhibit P/2 in consideration of Rs. 33,50,000/-, a sum of Rs. 3,50,000/- was advanced admittedly to the defendant No. 1 at the time of the execution of the sale'-deed and balance sale consideration was required to be paid on execution and registration of Conveyance Deed, defendant No. Has assured the plaintiff to deliver the requisite documents of title, certificates and clearance of all charges and taxes to enable the plaintiff to prepare sale-deed, it was revealed that the disputed property stood in the name of Abdul Waheed, husband of the defendant No. 1 defendants Nos. 1 to 6 the plaintiff was, obliged to pay Rs. 100,000/- for the purpose of procuring the mutation on 16.4.2005 and another sum of Rs.. 100,000/- was paid on 3.6.2005 exhibit P/S another agreement of sale was executed on 15.6.2005, whereas balance, amount was deposited in Court after filing of the suit.. It is alleged defendants had contravened the conditions of the agreement did not supply requisite documents for preparation of conveyance deed, resulted into exchange of correspondence ultimately suit was filed for specific performance damages and injunction.
(i) Whether the plaintiff has breached the terms of the Agreement dated 28.2.2005 and 15.6.2005? If so, its effect?
(ii) What amount the plaintiff has paid to the Defendants?
(iii) Whether the plaintiff is entitled to the specific performance of the Agreement?
(iv) What should the decree be?
3. I have heard M/s. Abdul Karim Siddiqui and Amjad A.I, learned counsel appearing for the parties, my findings on the above issues are as follows:--- ISSUE NO. 1: The plaintiff has relied upon contract dated 28.2.2005, exhibit P/2 executed with defendant No. 1 in respect of disputed property in consideration of Rs. 33,50,000/- out of which Rs.
4. 3,50,000/- was paid, required to be concluded on 3.6.2005, consequent thereupon, plaintiff served a legal notice upon the defendant No. 1, exhibit. P/6 disclosing the defendant No 1, offered to sell the . Property through misrepresenting herself as sole and absolute owner of the property stood in name of her husband, Abdul Waheed, upon his death, it has devolved upon the defendants at his surviving legal heirs, co-owners of the property. The defendant No. 1, was not competent to execute the sale-deed. Second Sale-deed dated 15.6.2005, exhibit P/8 was executed by the defendants, contract was required to be concluded on 35.7.2005, the defendant No. 1 served a legal notice dated 12.7.2005 exhibit P/9.
5. Learned counsel for the plaintiff has contended that exhibit P/2 was executed on 28.2.2005, whereby the Vendee was required to pay balance sale consideration on or before 3.6.2005, vendor undertook to deliver complete and vacant possession free from all claims, liens, charges and encumbrances. Balance sale consideration was required to be paid on the execution of conveyance deed, upon its registration before the Sub-Registrar. Later, it was revealed that property was owned by late Abdul Waheed, husband of defendant No 1 developed upon his legal heirs, therefore, for the purpose of procuring the mutation of property, the plaintiff had paid substantial amount on 16.4.2005, through exhibit P/4, another sum of Rs. 100,0001--was paid for the purpose of preparation of sale-deed, consequently agreement dated 156.2005, exhibit P/8 was executed by the defendant , contains clauses 8 and 10, which are as follows:- "8. . That the Vendors further agree and undertake to complete all the documents upto date of the said property at their own risk and cost within agreed time period for final payment
6. 9.
10. That in case the Vendee fails to pay the balance amount to the Vendors within stipulated time period of advance money shall be forfeited and in case of denial by the terms and conditions of the agreement or refuse/cancel the agreement the vendors shall pay the double amount of advance to the Vendee."
7. It is further contended that the time was not the essence of the contract, exhibit P/8 required to be, completed on 5.7.2005, defendants with the male fide intention served a legal notice dated 12.7.2005 upon the plaintiff exhibit P/9 to malign and forfeit earnest money on account of nonpayment of balance sale consideration within the stipulated period viz. 5.7.2005, which was promptly replied by the plaintiff's counsel. Exhibit P/10 dated 15.7.2005, whereby the defendant were called upon to supply the title documents for execution of the sale-deed and payment or balance sale consideration, the defendant's advocate replied exhibit P/13, alleging that balance sale consideration was not ready with the plaintiff.
8. Mr. Amjad A.I, learned counsel for the defendant had contended that agreements dated 28.2.2005 and 15.6.2005, were executed between the parties, the plaintiff had failed to fulfill the requirements of clauses No. 11 of the agreement dated 15.6.2005, therefore, contract was cancelled and earnest money was forfeited.
9. I have been anxious consideration to arguments advanced at bar.
10. The defendants did not deny execution of sale agreements exhibits P/2 and P/8, on the contrary, Mst. Badrunnisa, in the cross-examination amount payment of earnest money at the time of - execution of sale agreements and subsequent advances. At the time of execution of exhibit P/2 she had shown herself to be the sole and absolute owner, whereas property had devolved upon her and five sons, another sale-deed exhibit P/8 was required to be executed by the parties, she had delivered all the title documents to Tariq Akbar, though she has furnished explanation about her competency to execute first sale agreement on behalf of her sons being legally authorized. She has further admitted in cross-examination to have received Rs. 3,50,000/-, Rs. 1,00,000/- and Rs.
11. 1,00,000/- on different dates total Rs. 5,50,000/- from the plaintiff.
12. It transpires that the sale agreement exhibit P/2 could not be acted upon on account of concealment of the factum of co-owners/legal heirs of Abdul Waheed. Moment this fact came to the knowledge of the plaintiff, exhibit P/8 was executed, defendants had fraudulently procured motley from the-plaintiff for getting their names muted in the government record, mutation was effected on 4.12.2003, much prior to the execution of sale agreements, contract explicitly reveals time was not the essence as contended by the learned counsel for the defendant, by way of execution on sale agreements and, correspondence exchanged, the defendants themselves had extended time, which cannot be limited to 5.7.2005, defendant did not fulfill their obligation to deliver photo copies of the title documents enabling the plaintiff to proceed with the registration of conveyance deed, which in fact was the liability of the defendants.
13. Onus to prove that the plaintiff had breached the terms of the agreements does not stand discharged, from the defendant's evidence, exhibit P/2 had merged in P/8 on its execution, sought to be acted upon parties were under obligation to fulfill its covenants, defendant did not discharge his obligation, therefore, sale-deed could not be finalized. In this view of the matter, defendants had breached the terms of the agreements, issue No 1 is answered accordingly.
14. ISSUE NO. 2: It is an admitted position on, the part of the defendant that the plaintiff had paid Rs.
15. 5,50,000/- on various dates apparent from exhibits P/3, P/4, P/5 to the defendants towards part sale consideration, in view of specific admission by the defendant No 1, in her evidence, issue No 2 is answered in affirmative.
16. ISSUE NO. 3: It is contended by Mr. Amjad A.I, learned counsel for the defendant that after, cancellation of the sale agreement executed between the parties forfeiture of earnest money defendants had entered into a sate agreement with one Muhammad Ishaq son of Abdul Hameed, transaction was cancelled by Muhammad Ishaq. Defendant 'No. 1 'has admitted in her cross- examination that she was willing to sell property to the plaintiff at the prevalent market rate which suggests that the story of sale agreement with Muhammad Ishaq has been manipulated with ulterior motives.
17. It is well-settled law that relief of specific performance of a contract is discretionary in nature, required to be exercised judiciously, equitably and on well-recognized judicial considerable as provided under Section 22 of the Specific Relief Act. In the present case, the facts and circumstances lend support to the plaintiff's case that it was within the knowledge of defendant No. 1, that she was not' the only surviving legal heir of her deceased husband, there were no justification on her part to execute sale agreement being sole owner of the property. However, through subsequent agreement P/8 the defendants had agreed to abide terms of contract. On careful .Scrutiny of the evidence of the defendant juxtaposition to the evidence of the plaintiff. I am not prepared to accept the plea of defendant about the breach of agreement by the plaintiff. The evidence on record equitably makes out the transaction of sale, it may further be noticed that Section 22 of the Specific Relief Act and given illustrations, are not exhaustive to demonstrate, in which cases the Court may decline the exercise of grant of specific performance of a contract (i) where the circumstances, under which the contract is made are such to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiff's part and (iii) when the performance of the contract would involve some hardship on the defendant which he did not foresee when his non-performance of the contract would involve in such hardship on the plaintiff. In the present case, breach of the contract is attributed to the defendants, in my view, relief `of specific performance being an equitable relief can only be refused if the equities in the case are against the plaintiff. In this context reliance is placed on the case of Federation of Pakistan v. Muhammad Tariq Pirzada (1999 SCM R 2189), it was held by their lordships of the Supreme Court that the Court while refusing to grant a decree for specific performance to a plaintiff must find something in the contract of the plaintiff which entitles him to the grant of equitable relief for specific performance of contract, which cannot be refused merely because it is lawful for the Court to refuse it. Court may properly exercise discretion to decrease specific performance when the plaintiff has done substantial acts of suffered losses in consequences of a contract capable of specific performance. The circumstances of the present case show that the plaintiff was not guilty of misconduct as the defendant No. 1 has categorically stated on oath that she was prepared to sell the property on the prevalent market rate to the plaintiff. The intention of the parties can be gathered from the terms of the contract, the facts and circumstances of the case, mere stipulation of a specific time in the contract for its performance does not necessarily mean that time was the essence of the contract, the contentions of the defendant's counsel that the contract stood cancelled for non-performance by the plaintiff of his part of contract within the stipulated period is not tenable. It has been ruled by Hon'ble Supreme Court in case of Abdul Hamid v. Abbas Bahi Abdul Hussain Sodawaterwala (PLD 1962 SC page 1) that ("an intention to make time the essence of the contract must be expressed. In unmistakable language, it may be inferred from what passed between the parties before but not after the contract is made," the plaintiff is a bona fide purchaser for valuable consideration. So far as penal, and damages for breach of contract are claimed against the defendants, plaintiff did not adduce cogent evidence to substantiate the claim, hence disallowed.
18. ISSUE NO. 4: The upshot of above discussion is that plaintiff's suit is decreed against the defendant for specific performance of the contract exhibit P/8 dated 15.6.2003 parties are left to their own cost. .