' MUNIB AHMAD KHAN, J.-A reference has been made by the Honourable Chief Justice to me to hear this High Court Appeal as the learned Bench after hearing the same has given split decision.
2. The necessary facts leading to the case are that the appellant contracted respondent through agreement dated 16-3-2004, for sale of his Property bearing No,A-128, Block-A, North Nazimabad, Karachi measuring 200 sq. Yds, in the sum of Rs,30,50,000. At the time of agreement a sum of Rs,50,000 was paid as a token money while further sum of Rs,2,50,000 was also paid on the date of agreement and in terms of clause 3 of the agreement further amount of Rs,10,00,000 was paid on 15-4-2004 through cheque while remaining amount was to be paid within 90 days. The dispute between the parties is that the appellant did not pay the amount on the given date while both the parties have interpreted clause 4 of the agreement in their own ways. Since clauses Nos.2, 3, 4 and 9 are relevant, therefore, these are reproduced as under:--
(2) That the Vendor has received a sum of Rs,50,000 (Rupees Fifty Thousand Only) as a Token Money, and a sum of Rs,2,50,000 (rupees Two Lac Fifty Thousand only) through Pay Order No,13138762 dated 16-3-2004, drawn on PICIC Commercial Bank Ltd., Shaheed-e-Millat Road Branch, Adam Arcade, Shaheed-eMillat Road Karachi Pakistan, from the aforesaid Vendee, as part/ advance payment towards the above sale consideration, receipt whereof the said Vendor do hereby fully admitted and acknowledged and passed a separate receipt as well.
(3) That the sum of Rs,10,00,000 (Rupees Ten Lacks only) shall be paid by the Vendee to the Vendor on or before 15th April, 2004.
(4) That the remaining balance amount of Rs,17,50,000 (Rupees Seventeen Lacs Fifty Thousand only) shall be paid within 90 days by the Vendee to the Vendor. That one month time may be extended by mutual consent between the parties if required, and at the same time the Vendor shall execute the Sale Deed or General Power of Attorney in favour of the Vendee or his/her nominee (s) before the Registrar/Sub-Registrar, Karachi and shall hand over the vacant and peaceful possession of the said property along with all the deeds complete documents including Approved Plan, Completion Certificate, Transfer Mutation exp., Ground Rent, Challan etc. (5)
(6)
(7)
(8)
(9) That this agreement is irrevocable and the time prescribed above for completion of the transaction is the essence of this contract.
3. The learned Single Judge decreed the suit for specific performance while in High Court appeal split decision was given as one of the learned member of the Bench dismissed the appeal while another, learned member allowed the appeal by dismissing the suit.
4. After hearing the learned counsel, I have observed that all the learned Judges have emphasized on the above noted clauses and since they are relevant, therefore, I have to analyse these clauses containing the terms of the agreement between the parties. Admittedly Rs,50,000 was given as a token money while a sum of Rs,2,50,000 was paid through pay order on the date of agreement, which is 16-3-2004, that amount is almost 10 percent of the total agreed sale money which is Rs,30,50,000. In terms of clause 3 of the agreement further sum of Rs,10,00,000 was paid on 15-4- 2004, while vide clause 4 balance amount of Rs,17,50,000 was to be paid within 90 days but, it is not mentioned as to from what point of time 90 days are to be counted, i.e, either from the date of sale agreement or from the last, payment made on 15-4-2004 and after this it is further to be seen that one month's time was extendable under the same clause by mutual consent of the parties.
Learned Single Judge in suit has counted the time of 90 days from the last payment i.e, 15-4-2004, which falls on 15-7-2004 and with the extension of one month time last date comes on 15-8-2004.
The contention of the appellant was that the time of 90 days was to be counted from the date of sale agreement and after having extended one month further time then last date will be 15-7-2004 while according to the respondent 90 days' time was to be counted from the last payment made on 15-4-2004 ending on 15-7-2004 and with extension of one month time, date falls on 15-8-2004.
5. After, hearing the learned counsel and perusing the record, I have observed that the intention of the parties to be gathered for interpretation of the clause of the agreement as well as correspondence in between the parties and also from evidence adduced by them. It has been admitted by the parties that there was a meeting on 2-8-2004 and thereafter a legal notice was sent by the respondent/purchaser on 12-8-2004, which was replied by the appellant / seller on 20- 8-2004. The respondent has stated in his notice that the appellant was not inclined to accept the agreed amount and demanded Rs,7,00,000 more which was not agreed, hence dispute arose following that notice of respondent. The appellant has countered the legal notice by his reply dated 20-8-2004, wherein, he has denied the allegation of demanding of Rs,7,00,000 but stated that since the payment was not made in time, therefore, contract has been cancelled and amount of Rs,13,00,000 has been forfeited.
6. Keeping in view all the above documents, it appears that the appellant remained silent till 20-8- 2004 until he was approached by the respondent on 2-8-2004 and by a notice dated 12-8-2004, received by him and thereafter he took a position to defend. It has further been noted that under the agreement more than 1/3 amount i.e, 13,00,000 of total sale money has been paid while there is no clause under the agreement towards the forfeiture but even then the appellant has intimated forfeiture of the amount through his reply dated 20-8-2004 to the legal notice of the respondent.
The amount of Rs,13,00,000 was not a token/earnest money, which could be forfeited, while the agreement also does not authorize the appellant to forfeit the amount. There is nothing on record that the appellant promoted at any time after the alleged expiry of the time at the end of 15th July, 2004 according to calculation of the appellant himself while as per version of the respondent and admitted by the appellant there was a meeting on 2-8-2004 but still appellant was silent, thereafter, the respondent sent legal notice dated 12-8-2004 and showed his willingness to pay the remaining amount and invited appellant to register the sale deed and hand over the possession and thereafter the appellant took stand by his Notice dated 20-8-2004. The factual position narrated above shows that the planning and defence on the part of the appellant was an afterthought and he never intimated immediately after alleged expiry date while the respondent has mentioned his version by pointing out the meeting on 2-8-2004 and sent notice on 12-8-2004.
Moreover, clause 4 of the agreement is silent in respect of the date from which 90 days period is to be counted and in the absence of any date, the said clause is to be construed in a way that the essence of the agreement to be maintained.
7. In such a situation, it can properly be presumed that the time of 90 days is to be counted from 1- 4-2004 and after extension of 30 days, the expiry date comes on 15-8-2004, while respondent has taken proper efforts by conducting a meeting on 2-8-2004 and thereafter sent notice on 12-8- 2004, hence version of the respondent seems to have force. I have observed that all the three learned Judges have taken into consideration section 55 of the Contract Act as well as authority reported as PLD 1983 SC 344 but they have interpreted the same in their own ways. Learned counsel for the appellant has further relied upon 1995 SCM R 1431, 1998 SCM R 2485, 2003 YLR 110 and 2003 YLR 93. In the first authority, it has been observed as follows: "(a) Interpretation of documents ' Ambiguity in a contract document---Court, in order to resolve such ambiguity and to entertain the real intention of the parties, can have resort to the correspondence preceding and/or subsequent to the execution of the contract document, conduct of the parties and the attending circumstances . "
8. In the light of above authorities when there is some dispute in respect to the interpretation, the Court has to consider the relevant documents whereas in the instant matter these documents favours the respondent. As a rule, normally time is essence of the contract in a movable property but in respect to the immovable property time cannot be taken as essence of the contract unless it is specifically fixed in the and since there was some time fixed in the contract, subject matter of the appeal therefore, it is to be interpreted in the light of clauses of the agreement, the conduct of the parties, the correspondence following the agreements as well as action and inaction by the parties at the relevant time, in the instant matter, the respondent, apart from paying Rs,13,00,000 to the appellant, has also deposited balance amount in the Court, which shows the intention and immediate response, on the part of the respondent.
9. In the light of above, I dismiss this High Court Appeal as the authorities referred to by the appellant does not support his claim in the factual position involved, hence the judgment dated 13- 3-2006, given by the learned Singe Judge in the suit, is maintained.