1. ' SYED PIR ALI SHAH, J.---Heard the learned counsel for the parties and perused the case law cited by both the sides.
2. ' The case of the plaintiff is that on 24-4-2007 the Defendant No,1 offered to sell his shop in consideration of total sale consideration of Rs,62,00,000 through defendant No,2 as his attorney and, as such, the plaintiff has paid an advance amount of Rs,10,00,000 through cheque for which receipt was acknowledged to the plaintiff. As per sale agreement dated 20-5-2007 the remaining amount of Rs,52,00,000 was to be paid by the vendee to the vendor on or before 20th May, 2007 at the time of proper transfer documents by way of sub-lease and handing over of vacant physical possession of the property whereof.
3. ' The case of the plaintiff is that by virtue of clause 5 of the aforesaid agreement of the defendants Nos.1 and 2 were liable and responsible for the payment of taxes and amenities charges and matter was published in newspaper inviting objections from the general public. The plaintiffs further case is that he time and again verbally requested defendants Nos.1 and 2 to perform their contractual obligation but his all efforts have gone in vain and ultimately served them with legal notice, dated 5th June, 2007 to perform their contractual obligation as well as showing his willingness of payment of balance sale consideration.
4. ' The plaintiff has filed this suit for specific performance, declaration and permanent injunction with the following relief:--
(a) Specific performance of the contract/offer acceptance of sale/ purchase as well sale agreement dated 24-4-2007 in respect of commercial Shop No,2 located at Ground Floor, measuring 300 Sq. Fts. Constructed on plot No,43-C, Badar Commercial Street No,10, Phase-V, Extention, D.H.A. Karachi, against the defendants Nos.1 and 2 by directing them to complete the transfer/mutation of the suit property in favour of the plaintiff in all relevant records specifically in the office records of defendant No,3 and further to direct the defendants Nos.1 and 2 to do all needful to execute transfer documents/sale-deed etc, in favour of plaintiff and in case of their failure to do so then may be pleased to direct the Nazir of this Honourable Court to get transfered the suit property in favour of plaintiff or accordingly by executing sale-deed in favour of plaintiff.
(b) Declare that the plaintiff is firstly entitled to purchase the suit property aforesaid shop No,2 and to have the legal right in suit property/shop to be transferred/ mutated in his favour in the office record of all relevant authorities/ departments, records pertaining to the suit property specifically in the office record of defendant No,3.
(c) A permanent injunction restraining the defendants Nos.1 and 2 their employees, agents, subordinates, and anyone working under them from selling, transferring, alienating or mutating encumbrances to any other party the suit property i.e, commercial shop No,2 as mentioned in prayer (a) or creating any third party interest over the said property and also restrain the defendant No,3 its officer/workers office staff from transferring mutating the suit shop to any other reason (s) except the plaintiff.
(d) To grant the cost of this suit.
(e) To grant any other relief or reliefs which this Honourable Court may please deem fit and proper under the circumstances of the case but lacking from the prayer.
5. ' Along with the plaint an application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C.
6. Duly supported by the plaintiffs affidavit was filed praying therein for grant of injunction restraining the defendants their employees, agents subordinates, etc. From transferring or creating third party interest by depriving the plaintiffs right to purchase in suit property i.e, Commercial Shop No,2, Ground Floor, measuring 300 sq. Fts. Constructed on plot No,43-C, Badar Commercial Street No,10, Phase-V, Extension DHA, Karachi.
7. ' In support of his case the learned counsel for the plaintiff has relied upon the cases of Abdul Majeed v. Muhammad Naeem and others (2006 CLC 1123) and Khurshid Ali and others v. Shah Nazar (PLD 1992 SC 822).
8. ' The defendant No,2 filed counter-affidavit stating therein that the plaintiff could not prove his continuous, readiness and willingness from the date of execution of sale agreement. It is contended that the plaintiff having miserably defaulted in payment of balance sale consideration and is not entitled to receive specific performance of contract. It has been argued that the defendants never avoided to perform their part of contract. Learned counsel for defendant No,2 has drawn the attention of this Court to Clause 13 of the agreement to the effect that in case the vendee fails to pay the balance amount within stipulated time period then the vendor shall have the right to forfeit the advance payment. Likewise, if the vendor fails to fulfil the above terms and conditions and/or refuses to sell the said property to the vendee then he will refund the above said advance payment plus an amount equivalent to advance payment as penalty and ultimately the deal will be treated as cancelled, null and void.
9. ' Learned counsel for defendant No,2 has relied upon the cases (1) Ardeshir H. Mama v. Flora Sassoon (AIR 1928 Privy Council 208) which is to the effect that in a suit for specific performance if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract, failure to do so it was inevitable to decree the suit; (2) In case of Mani and others v. Krishnan Nayar (AIR 1953 TRA-Co. 377 (Vol. 40 C.N. 146)) it has been held that the time was essence of contract and that sale-deed was to be executed within the stipulated period. Regarding delay it has been held that such delay would amount to an abandonment on his part of the contract; (3) the case of Abas All v. Kodhusao (AIR 1929 Nagpur 30) is to the effect that the earnest money was liable to be forfeited when a transaction passes through by reason of default or failure of the vendee. He has also relied upon the case of Kommisetti Venkatasubbayya v. Karmasetti Venkateswa rlu and others (AIR 1971 Andra Pardesh 279). Learned counsel for defendant No,2 has also referred section 922 of Chapter XX with regard to the default on the part of plaintiff while performing his part of contract which reads as under:-- "922. With regard to the matters to be done by the plaintiff according to the terms of the contract, it is, from obvious principles of justice, incumbent on him, when he seeks the performance of the contract, to show, first, that he has performed or been ready and willing to perform, the terms of the contract on his part to be then performed; and secondly, that he is ready and willing to do all matters and things on his part thereafter to be done; and a default on his part in either of these respects furnishes a ground upon which the action may be resisted. We will first consider cases of default in respect of terms of the contract which ought to have already been performed."
10. ' Obviously, there is no dispute with regard to the execution of sale agreement dated 24-4-2007 in respect of Commercial Shop No,2, located on Ground Floor, measuring 300 sq. Ft. Plot No,43-C, Badar Commercial Street No,10, Phase V-Ext., DHA, Karachi. Admittedly, an advance amount of Rs,10,00,000 was paid by the vendee to the vendor. As per clause (3) of the said sale agreement remaining amount of Rs,52,00,000 was to be paid by the Vendee to the Vendor on or before 20-5- 2007 at the time of execution of proper transfer documents/sub-lease/saledeed in favour of the vendee or his nominee before the concerned office. Clause (4) of the sale agreement is to the effect that the Vendor shall provide photo copies of all documents of the said property for the purpose of verification before transfer formalities in favour of the vendee. As per clause (5) of the agreement the vendor was liable and responsible for payment of property tax, water and conservancy tax, electric charges, sui gas charges, telephone bills in respect of the said property upto the date of possession or transfer made in favour of the vendee.
11. ' In his notice dated 5-6-2007 (Annexure P/5.), plaintiff has categorically stated that balance amount of sale consideration was arranged by him within time and it was for the vendor to have performed his part of contract. This notice of the plaintiff was replied through Mirza Waqar Hussain vide letter dated 20-6-2007 whereby contents of paragraphs 1,2 and 3 of plaintiff's above said notice were unequivocally admitted. The contention of the defendant side is that the Vendee has not fulfilled the terms and conditions as mentioned in the clauses (7) and (13) of the sale agreement. It has further been mentioned that in view of section 55 of the Contract Act, 1872, the contract between the parties stands terminated and, as such, earnest amount paid by the vendee was forfeited, it is contended that by virtue of pay Order No,1113701 for Rupees Two Million One Hundred Thousand Only, dated 1-6-2007, drawn on Messrs. Soneri Bank Limited. DHA, Branch, Karachi, and pay order No,1273644 for Rupees One Million dated 30-5-2007, drawn on Messrs.
12. Standard Chartered Bank, Khayaben-eTanzeem, DHA, Karachi, is a proof of inability of the vendee to pay the balance sale consideration.
13. As mentioned above, clauses (4) and (5) of the sale agreement were to be fulfilled by the vendor.
14. There is no documentary proof that the vendor had fulfilled the requirements of clauses (4) and (5) of the sale agreement. It was for the first time initiative taken by the vendee who had served legal notice upon the vendor calling upon him to perform his legal obligations. Had, it been so that the vendor was vigilant, he could have also served the vendee with legal notice calling upon him to fulfil the requirements of the terms and conditions mentioned in the sale agreement. No doubt, contents of Clauses (7) and (13) of the sale agreement provides obligation upon the vendee and penal clauses thereof. Be that as it may, in case of failure to do so by the vendee the vendor was under legal and moral obligation to have called upon the vendee to fulfil the part of the contract of his part else the sale agreement would have been cancelled. Prima facie, plaintiff has a good and sufficient arguable case for grant of interim orders as balance of convenience lies in his favour. An amount of earnest money to the tune of 10,00,000 is a huge amount and the forfeiture of the same does not warrant in the air. During the course of arguments learned counsel for the vendee straight away argued that the vendee is ready and willing to pay the balance sale consideration amount of Rs,52,00,000 to the Vendor without any loss of time. All this shows honest intention and firmness on the part of Vendee. As per order dated 25-7-2008 interim orders restraining the defendants from creating third party interest in the said shop were passed and the same have been extended from day to day and there will be absolutely no harm to the defendants' side if, the said interim orders are confirmed. As regards irreparable loss the third ingredient of Order XXXIX, Rules 1 & 2, C.P.C. For grant of an order of injunction the plaintiff has rightly relied upon 2006 CLC (Lahore) 1123 which is identical and the facts and circumstances of the referred law are almost similar to the facts and circumstances of the instant case. It has been held that restraint on alienation of the suit property would not result any irreparable loss/injury to the defendant whereas the same might occur to the plaintiffs who would face further complications and multiplicity of proceedings. The law citation.
15. PLD 1992 SC 822 is enlightened authority with regard to the administration of justice. The Honourable Apex Court held that the Courts are not only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the litigants, and one who commits a mistake in procedural matters should be deprived of the right claimed, even if he is entitled to it.
16. In view of the above settled citations relied upon by the plaintiff counsel and from the above discussion and for the foregoing reasons, it is gathered that the plaintiff/vendee has established a good case B for grant of interim orders. Accordingly, interim orders dated 25-7-2008 restraining the defendants from creating third party interest in the said shop are confirmed till the decision of main suit.
17. ' The application (C.M.A. No,7407 of 2008) stands disposed of.
2. Deferred.
18. Adjourned to a date in office.