1. ' MUNIB AHMAD KHAN, J. This suit has been filed for specific performance of the contract dated 23- 2-2006 and for damages. According to plaintiff, he purchased a constructed building on plot bearing Survey. No,41, Survey Sheet No,R.S.2, Ramswami Quarters, Saddar Town, Karachi, consisting of 24 flats out of which 12 flats were vacant and 12 flat were occupied by tenants, for sale consideration of Rs,1,40,00,000. The plaintiffs paid an advance of Rs,25 Lacs through three cheques, while remaining Rs,1,15,00,000 to be paid at the time of handing over of the physical vacant possession of the building in terms of the agreement. The plaintiffs version is that they approached the defendants on 31-5-2006 for finalization of agreement by way of possession and execution of conveyance deed, but defendants avoided and demanded more amount of Rs,6 million, which was not agreed and thereafter the plaintiffs tried several times to resolve the matter, but finally they issued a legal notice dated 8-6-2006 asking thereby the defendants to specifically perform the contract. They issued some other notices, but the matter could not be solved through correspondence, as the defendants were not ready to act in terms of the agreement, therefore, the suit has been filed.
2. ' On the other hand the defendants has admitted that there was an agreement with specific terms for sale of the property in dispute and by virtue of that agreement the balance amount of Rs,1,15,00,000 was payable on or before 31-5-2006 while the building was to be handed over in the conditions as it was with 12 tenants occupying the same. He asserted that firstly the plaintiffs failed to pay the balance sale consideration and secondly by its notice dated 8-6-2006 demanded vacant possession of all 24 flats which was contrary to the terms of the agreement. It has also been asserted that the condition including the limitation of time, were essence of the contract, while the plaintiff never offered the agreed balance amount and moreover have demanded more than the agreed terms. It has been denied by the defendants that any extra amount of Rs,6 million, as alleged, was demanded or the plaintiffs approached the defendants on 31-5-2006 or offered money and that the notices were duly replied.
3. ' In presence of above contentions following issues were framed:-
(1) Whether the plaintiff has sufficient financial resources for payment of balance sale consideration on 31-5-2006? If not , what is its effect?
(2) Whether the plaintiff is entitled for specific performance?
(3) What should the decree be?
4. ' Evidence was recorded through the Commissioner, who submitted his report. The plaintiffs examined Muhammad Munaf, the plaintiff No,4, on their behalf as well as two other witnesses namely Muhammad Amin and Muhammad Musharaf, while defendant examined Rehmat Ali, defendant No, 1 Witness Muhammad Amin of the plaintiff was basically on the point that there was an agreement of sale between the parties and on 31-5-2006 there was a meeting when the defendants demanded Rs,6 million over the agreed amount. Another witness Muhammad Musharaf was also on the point that there was an agreement dated 23-2-2006 and that the remaining balance of Rs,1,15,00,000 was to be paid on 31-5-2006, but it could not be paid due to extra demands of the defendants. The plaintiff No,4 who has appeared as witness for plaintiffs ' has reiterated the contents of the, plaint and basic gist of the evidence coming out of him is that the plaintiffs approached the defendants on 31-5-2006 when they had already arranged Rs,1,15,00,000, but matter could not be finalized as the defendants demanded extra amount of Rs,6 million, therefore, notice dated 8-6-2006 was sent, but the defendants did not agree and want to sale the property on fresh terms and conditions. He has exhibited power of attorney from other plaintiffs as Exh.1, Sale Agreement dated 23-2-2006 as Exh.2 receipt of payment of Rs,25,00,000 through three cheques as Exh.3, legal notice dated 8-6-2006 as Ex.h.4 and its receipts from TCS as Exh.5 to Exh.9.
5. Reply of legal notice by defendants dated 24-5-2006 is exhibited as Exh.10 legal notice from defendants to plaintiffs, dated 19-7-2006 as Exh.11, reply from the plaintiff's counsel dated 27-7- 2006 as Exh.12., its postal receipt as Exh.13.
6. ' The defendants have relied upon only agreement and has stated that the defendants failed to pay the balance amount of Rs,1,15,00,000 in terms of the agreement dated 23-2-2006 by 31-5-2006, which was the last date for such payment, therefore, plaintiffs were not entitled for specific performance and their advance amount is to be forfeited in terms of the agreement. Both the learned counsel have argued the matter. Mr. Muhammad Siddiqui Kaladia, learned counsel for plaintiffs has argued that the basic hurdles created towards the performance of the agreement was from the defendants as they demanded more money which was not paid, otherwise, plaintiffs were ready to perform remaining part of the agreement and that amount of Rs,1,15,00,000 was available with them when they approached the defendants on 31-5-2006 and that the defendants did not supply the copies of documents, therefore, documents in respect to the execution of sale- deed could not be prepared. He has relied upon PLD 1973 SC 39.
7. ' Mr. Khalil-ur-Rehman learned counsel for the defendants has argued that through cross- examination of the plaintiff the case has become very simple as he has admitted that plaintiffs Nos.1 to 4 had no balance amount to the extent of Rs,1,15,00,000 in their bank account on 31-5-2006 nor they have produced any pay order to show that when they allegedly visited the plaintiffs on 31- 5-2006, the said pay order of Rs,1,15,00,000 was with them. He had further submitted that it was the plaintiffs who demanded more than the things agreed as according to the contract only 12 vacant flats were to be handed over, while remaining 12 flats to be atone with the tenants, but through the legal notice dated 8-6-2006 Ex.4, the plaintiffs demanded vacation of remaining 12 ,flats from the tenants. He furthet pointed out clause 14 of the agreement to show that the terms and conditions of the agreement were specifically made essence of the contract, therefore, although the case is for immovable property but every thing has been fixed with specification and time limits with equal penalty upon either party has been provided on his failure to perform the agreement, therefore, the plaintiffs on their failure to act in terms of the agreement have lost their right for specific performance and their suit be dismissed. He has relied upon 2007 YLR 992 and PLD 1986 SC 497.
8. ' After hearing both the learned counsel and going through the record it appears that the parties have executed a detailed agreement dated 23-2-2006 and Rs,25,00,000 have been paid through three cheques which have specifically been mentioned in the agreement. The detail of the property has already been mentioned, whereby it has been agreed that property is to be handed over with 12 vacant flats while 12 flats with the tenants were to be handed over. In clause 2(b) time limit has been provided as remainder Rs,1,15,00,000 is to be paid on or before 31-5-2006. In clause 12 consequence of non-payment in terms of clause 2(b) have been spelled out as in case of failure on the part of vendees, amount is to be forfeited and if the vendors violates the terms of the agreement then they have to refund the double the amount which has been paid in terms of clause 2(b). In clause 14 it has been mentioned that terms and conditions are essence of the agreement and same are irrevocable. The parties are contesting without disputing the terms and conditions of the agreement with allegations against each other that the default towards the payment or non-acceptance is on other side. The intentions of the parties to be assessed from their documents and conduct. Through the letter dated 8-6-2006, written by the plaintiffs, he is asking thereby from the defendants to get 12 occupied flat vacated and hand over the possession of the building. It is also mentioned in it that plaintiffs approached the defendants as it was ready to pay the balance amount in terms of clause 2(b) of the sale agreement, but the defendants gave evasive reply and avoided to complete the transaction. The said notice has been written on 8-6- 2006 after expiry of time limits provided by clause 2(b) of the agreement for final payment i.e, 31-5- 2006, while, there is no mentioned that the defendants demanded extra amount of Rs,6 million rather plaintiffs demanded a relief which was not promised by the defendants in the said agreement i.e, demanding vacation of occupied flats, which was not available in the agreement.
9. ' Contrary to the contents of the letter the plaintiff, in the plaint, has taken up a defence that the defendants demanded extra amount of Rs,6 million, while condition of vacation of 12 occupied flats was not pressed. From perusal of plain language of the agreement it appears that the parties agreed for specific timing for payment of balance amount, which expired on 31-5-2006, but by that time there was not a single response from the plaintiffs and first legal notice was sent on 8-6-2006 which too contains pleas which are at variance with the agreement as well as with the plaint.
10. Through the correspondence the parties remained stuck up with their stand as the defendants were not inclined to perform the agreement on the ground that the time has expired.
11. ' To scrutinize the intentions of the parties and to interpret the clauses of the agreement it is necessary to go through the evidence recorded in the case on commission. The cross-examination of the plaintiffs is material to infer its intention and to find a solution to the contentions raised in the suit. Relevant portion is reproduced as under:-- ' "We have not obtained any pay order for payment of the balance amount of Rs,1,15,00,000 before 31-5-2006. It is correct that we did not get draft conveyance deed prepared before 31-5-2006..
12. ' It is correct that we did not request for a date from Sub-Registrar for the execution of sale-deed.
13. ' It is correct to suggest that on or before 31-5-2006. The plaintiffs Nos.1 to 4 had no balance amount to the extent of Rs,1,15,00,000 in their bank account."
14. ' To further check the monetary powers of the plaintiffs the defendants counsel put up a question which is reproduced with reply as under:- ' Q. On or before 31-5-2006 in terms of the sale agreement you did not get the pay order prepared in the sum of Rs, 1,15,00,000 out of the cash and prize bonds?
15. ' A. Since the defendants enhanced their demand for the sale of the suit property, therefore, I did not obtain the pay order.
16. ' The evidence of the other witness of the plaintiffs is not material as the plaintiff himself has admitted that either of the four plaintiffs had no sufficient amount in their bank account nor on or before the cut date i.e, 31-5-2006 they got prepared any pay order in the required sum. It has further been noted that all the expenses and work towards the registration of sale-deed was to be done by the plaintiffs/Vendees, but admittedly they did not get.The draft of sale-deed by the above date nor any arrangement was made for registration and moreover there was no response on 31-5-2006 or prior to date, but through notice dated 8-6-2006 which notice does not support the contention of the plaintiffs as there is no mention that the defendants have demanded a sum of Rs,6 million. While the ground taken by the plaintiffs in the notice that the 12 tenanted flats to be got vacated does not find any mention in the plaint. This shows that the suit was developed on the ground which was based on afterthought. The intentions and capacity of the plaintiffs towards compliance of the mandatory condition of the agreement is reflected from its own admission in cross-examination that neither they had required sum in their bank account nor a pay order was prepared by that date nor any arrangement was made towards execution of sale-deed. The reliance placed by the plaintiffs on PLD 1973 SC 39 (wrongly referred to as PLD 1972 SC 39) is not of any help to him as in that case, there was no written agreement , while the seller has breached the terms of contract, while in the case in hand there is written contract with specific condition making the time as essence of the contract, hence the intentions of the party are to be honoured. The version of the defendants is supported by the authorities, as cited i.e, PLD 1986 SC 497 and 2007 YLR 992 as no where during entire period of contract, it was demonstrated by the Plaintiffs that they were ready to go by the terms of the contract. In these circumstances, the plaintiffs have no merit in the case and is not entitled for specific performance, therefore, the suit is dismissed.