FAISAL ARAB, J.--- The case of the plaintiff is that defendant No,1 Society owns 25 acres of land situated in Sector 24-A,. K.D.A. Scheme No,33, Karachi and on this piece of land, defendant No,1 Society has carved out numerous residential plots and allotted them to its members. It is also the case of the plaintiff that defendant No,1 Society represented to the plaintiff that allottees of 243 residential plots, each measuring 120 square yards, have authorized defendant No,1 Society to sell their plots on their behalf and on the basis of such authorization, defendant No,1 Society entered into a sale agreement dated 29-9-2007 with the plaintiff at a price of Rs,7,25,000 for each plot. Out of the contracted 243 plots, transaction in relation to 100 plots has already been completed. The controversy now only remains in relation to the balance 143 plots. According to the plaintiff, the defendant No,1 Society is avoiding completion of transaction of these 143 plots, which has led to the filing of the present suit for specific performance of the contract.
2. The plaintiff has nowhere in the plaint quantified the balance sale consideration that is payable for the 143 plots. In paragraph No,5 of C.M.A. No,10798 of 2008 however, the plaintiff has stated that a sum of Rs,102,525,000 is the amount which is payable to defendant No,1 Society for the 143 plots.
Defendant No,1 Society in paragraph 10 of its counter-affidavit filed to C.M.A. No,10798 of 2008 has confirmed the above mentioned amount to be the balance sale consideration and has sought directions from this Court to the plaintiff for the deposit of Rs,102,525,000 so that defendant No,1 pay this amount to the allottees of 143 plots and get them transferred from them to the plaintiff.
3. The plaintiff has moved C.M.A. No,10798 through which it is seeking modification of the interim order, dated 7-11-2008, whereby interim injunction was granted against the defendant and this Court while granting so, directed the plaintiff to deposit the balance sale consideration with the Nazir of this Court within three weeks. In the said application, the plaintiff has prayed for substitution of order of deposit of the balance sale consideration with that of furnishing security.
4. When C.M.A. No,10798 of 2008 came up for hearing befor the Court, learned counsel for defendant No,1, at the very outset, submitted that defendant No,1 is ready and willing to perform its part of the contract and it is the plaintiff who has failed to fulfil his obligation under the agreement and filed the present suit only to buy time as they are not ready with the balance amount. He further stated that due to present economic conditions, the value of properties has gone down and, therefore, the plaintiff is looking for pretexts to wriggle out of his contractual obligation.
5. Learned counsel for the plaintiff on the other hand has argued that it is the defendant No,1, which has not complied with the terms and conditions of the agreement as it has failed to complete the development work that was required to be undertaken by it under the agreement and therefore, it is the defendant No,1 and not the plaintiff who has failed to honour its contractual obligation. The learned counsel for the plaintiff, while arguing C.M.A. No,10798 of 2008 submitted that as the law does not envisage direction to deposit balance sale consideration while seeking injunction, therefore, the order, dated 7-11-2008 may be modified and the plaintiff is prepared to furnish security in lieu of deposit of balance sale consideration in cash. In support of his contention, he has relied upon PLD 2003 Lah. 17, 1985 CLC 2733, PLD 1995 Lah. 117 and PLD 1968 Kar.
910.
6. Learned counsel for the plaintiff has also contended that as the defendant No,1 has failed to carry out development work as undertaken by it in terms of the sale agreement, the said work was carried out by the plaintiff himself, a huge amount of Rs,31,059,984 was spent on such works and therefore, the plaintiff is entitled to adjust this amount from the balance sale consideration.
7. Insofar as the argument of recalling of the order of deposit of balance sale consideration is concerned, suffice to state that as the defendant No,1 has admitted to transfer 143 plots on receipt of the balance sale consideration and this suit can be finally disposed of at this stage. Therefore, it is not necessary to examine on what terms interim order could be passed. The entire suit could be disposed of on the basis of defendant No,l s admission.
8. Neither in the body of the plaint the plaintiff has averred that he has incurred any sum on development work, nor in the prayer clause the plaintiff has sought any relief regarding thereto.
This suit was filed on 6-11-2008 and before filing the same, the plaintiff served a legal notice on defendant No,1 Society which is Annexure "P-15" to the plaint. In para.3 of the said legal notice though the plaintiff has averred that defendant No,1 has failed to carry out development work, but nowhere in the said notice it has been mentioned that the development work has been carried out by the plaintiff or it would be carried out by the plaintiff. Then, within ten days of this notice, the plaintiff filed the present suit and the plea that any development work was carried out by the plaintiff has not been taken in the plaint hence this claim having not been made in this suit, cannot be looked into by this Court.
9. Where a seller to a transaction of immovable property fails to perform his obligation, then the buyer may either seek specific performance of the contract or may give up his right to seek specific performance and claim pecuniary compensation for breach of the contract or he may seek both remedies. If the buyer intends to seek the relief of specific performance of the contract only and establishes in the suit that it was the seller, who was avoiding the contract, then he would be entitled to decree of specific performance only but in absence of seeking the relief of pecuniary compensation as visualized by section 73 of the Contract Act and establishing the same in evidence, the relief of pecuniary compensation cannot be granted to him. Similarly, when a buyer fails to perform his obligation under the contract the seller has the option to forfeit the earnest money and seek pecuniary compensation for any loss that he may have sustained on account of buyer's committing breach of the contract.
10. In the present case, the plaintiff opted to seek specific performance of the contract only and has not sought pecuniary compensation. According to the plaintiff, the possession of plots in question has also been taken over by him. The main reason shown in the plaint for defendant No, l's non- performance is that defendant No,1 intends to sell plots to some other buyer. Now that the counsel for defendant No,1 has stated at the Bar that the defendant No,1 is ready and willing to perform its contractual obligation, it means that defendant No,1 had no intention to commit breach of the contract. On the contrary defendant No,1 admits its obligation under the contract and is ready to perform. As the plaintiff in this suit is only seeking the relief of specific performance of the contract and no other issue is left to be adjudicated this suit can be disposed of at this stage. In the circumstances it would be E appropriate to direct the plaintiff to deposit the balance sale consideration of Rs,102,525,000 with the Nazir of this Court within 30 days from today i,e, upto 31-3- 2009. Upon deposit of such amount the suit shall stand decreed in his favour and the defendant No,1 shall be liable to transfer 143 plots as undertaken by it under the agreement in favour of the plaintiff. In case the plaintiff fails to deposit the amount within this stipulated period, the suit shall stand dismissed. As the 143 plots are in the names of members of defendant No,1 who are not party to the contract in question, therefore, in case defendant No,1 fails to get these plots transferred in favour of the plaintiff, then the defendant No,1 shall refund the amount which it received from the plaintiff for the 143 plots.
' This suit along with all applications stand disposed of in the above terms.