' AMIR HANI MUSLIM, J.---Through these proceedings the plaintiff seeks specific performance of sale agreement, dated 30th January, 2008 executed between him and the defendant No,1 for property bearing plot No,A-12/5-A double storey, KDA Scheme No,1, Karachi, which property is mortgaged with the Defendant No,2.
2. I have called the plaintiff and defendant No,1 who are present in Court. Plaintiff and the .Defendant No,1 present in Court admit their signatures as well as the contents of the sale agreement, dated 30th January, 2008, sought to be enforced through this suit. The defendant No,1 states that he has received a sum of Rs,15,00,000 from the plaintiff.
3. Clause 1 of the sale agreement stipulates the schedule for payment of sale consideration. It was agreed between the parties that the plaintiff shall pay Rs,15,00,000 by 4th February, 2008. A further amount of Rs,86,00,000 was agreed to be paid by the plaintiff to the defendant No,1 on or before 15th February, 2008 and the defendant No,1 shall deliver the peaceful vacant physical possession of the suit property to him, however, the defendant No,1 shall clear all bank dues. It was also agreed that the remaining amount of Rs,49,00,000 shall be paid by the plaintiff to the defendant No,1 on execution and signing of sale-deed in respect of the suit property on or before 15th March, 2008.
4. According to the plaintiff after receipt of Rs,15,00,000 by 4th February, 2008 a further amount of Rs,86,00,000 was offered to the Defendant No,1 who refused to accept the same, therefore, he has filed the present proceedings seeking enforcement of the sale agreement.
5. As against this, the defendant No,1 states that at no point of time the amount due on or before 15th February, 2008 was offered to him. He has placed on record photocopies of his letter, dated 2nd March, 2008 addressed to the plaintiff and its confirmation receipt. By the said letter, the Defendant No,1 has called upon the plaintiff to make payment of R036,00,000 in terms of clause (1) of the sale agreement within three days failing which the sale agreement would be cancelled.
Again on 25th March, 2008 a legal notice was addressed by the defendant No,1 to the plaintiff stating therein that since he has failed to make payment within the stipulated time, the sale agreement is cancelled and amount received in part payment stands forfeited. Both these notices were mailed through courier and confirmations receipts have been placed on record.
6. The plaintiff with his plaint has filed photocopies of two pay orders, one dated 1st March, 2008 for a sum of Rs,79,95,000 and the other dated 8th March, 2008 in the sum of Rs,6,5,000, total of which comes to Rs,86,00,000. It has been stated that these pay orders were offered to the defendant No,1 which the defendant No,1 disputes and states that the said pay orders were never offered to him.
7. The defendant No,1 claims that on non-payment of the part sale consideration of Rs,86,00,000 on or before 15th February, 2008, the sale agreement has come to an end and the amount paid by the plaintiff stood forfeited in terms of penalty clause 11 of the sale agreement. Clause 11 of the sale agreement, dated 30th January, 2008 is reproduced hereunder:-- "(11) That the penalty will be charged by Vendee from the Vendor of Rs,50,00,000 if the Vendor fails to complete deal. Likewise, if the Vendee fails to pay the remaining outstanding balance amount of Rs,49,00,000 on or before 31st March, 2008, the Vendor is entitled to cancel the agreement to sell/deal forfeited amount paid by him Vendee shall hand over vacant possession to the Vendor and the Vendee has no right whatsoever for specific performance against subject property."
8. The defendant No,1 further states that in spite of his letter and the legal notice, addressed to the plaintiff after 15th February, 2008 the plaintiff continued to avoid payment and did not respond.
According to him the photocopies of the two pay orders annexed with the plaint, as mentioned hereinabove, is an attempt to make out a case for specific performance. The plaintiff has stated in Court that the pay orders, copies of which have been annexed with the plaint, were encased by him, which fact was neither pleaded nor mentioned in the memo. Of plaint. He has further stated in Court that now he is not in a position to make payment of balance sale consideration.
9. In a suit for specific performance of a contract, the party approaching the Court has to show that it is ready and willing to perform its para of the contract and other side is either avoiding or has refused to perform his part of the contract. In the case in hand, in the first place the plaintiff has failed to place material on record to show that the amount of Rs,86,00,000 as per the schedule agreed in the sale agreement between the parties was offered on or before 15th February, 2008.
Additionally, copies of the pay orders, which too were made in installments, one on 1st March, 2008 and the other on 8th March, 2008, clearly reflect that the pay orders were prepared subsequent to the stipulated date agreed between the parties in the sale agreement for which no plausible explanation has been offered by the plaintiff in Court would not improve the case of the plaintiff in the present proceedings. Thirdly, the plaintiff after preparing the pay orders in the name of the defendant No,1 has encashed them, which fact has been concealed by the plaintiff. Mr. Muhammad Sadiq, advocate for the plaintiff, states that the two pay orders were encashed after filing of the suit. Be that as it may, this fact could have been brought to the notice of the Court by filing appropriate application. It appears that the pay orders were encashed after obtaining ad- interim orders from this Court on 28th March, 2008. In any event, these pay orders are prepared after the expiry of the agreed date of 15th February, 2008. Therefore, the plaintiff has failed to make out a case of his willingness to make payment in terms of clause (1) of the sale agreement.
10. The plaintiff has failed to show from his conduct that he is ready and willing to perform his part of the contract . The plaintiff in Court has made a statement that he does not have money to pay balance sale consideration. The defendant No,1 in the given circumstances was justified to forfeit the amount received from the plaintiff on cancellation of the sale agreement in terms of clause (11).
The plaintiff has further lost his right to institute present suit seeking specific performance as he himself has failed to perform his part of contract within the stipulated period by not making payments within the schedule.
11. The relief of specific performance is a discretionary relief and the plaintiff has to establish that he is ready and willing to perform his part of the contract and has taken positive measures to fulfill the same, which fact is not reflected either in the pleadings or in the documents annexed with the plaint coupled with the statement of the plaintiff in Court.
12. The defendant No,1 was liable to pay back the bank's dues to the defendant No,2 on receipt of payment of Rs,86,00,000 on or before 15th February, 2008 from the plaintiff to get the property redeemed. On account of plaintiff's failure to make payment in terms of the sale agreement, the defendant No,1 has suffered financial losses, which losses are multiplying till such time he redeems his property from the defendant No,2.
13. The plaintiff has stated in Court that he is not in a position to deposit the balance sale consideration of Rs,1,35,00,000, therefore, I dismiss the C.M.A. No,11914/2008 filed by the plaintiff under Order XXXIX Rules 1 and 2 C.P.C. And C.M.A. No,11915 of 2008 filed by the defendant No,1 under section 151 read with Order XXXIX Rule 10, C . P. C .
14. Furthermore, in these proceedings the plaintiff and defendant No,1 have admitted the terms of sale agreement, besides their signature thereon. Plaintiff also admitted that pay orders were prepared after 15th February, 2008 and even the same were never handed over to the defendant No,
1. He stated in the Court that he is not in a position to make payment of the balance sale consideration and has encashed the pay orders. Therefore, in view of the incapability of the plaintiff to deposit the balance sale consideration coupled with the documents placed on record, no fruitful purpose would be served if the parties are allowed to lead evidence in these proceedings. The clause (11) of the sale agreement debars the plaintiff from filing suit of the nature. The terms of the sale agreement are not in dispute and oral evidence cannot substitute the documentary evidence.
Therefore, the equity demands that continuance of these proceedings, which are discretionary in nature, exposing the defendant No,1 to recurring losses must come to an end. For the aforesaid reasons this suit is dismissed with costs.