1. ARSHAD NOOR KHAN, J. - By this order I intend to dispose of application under Order 39, Rules 1 & 2, C.P.C, filed by the plaintiff against the defendants praying therein to restrain them to create thirty party interests till the disposal of the suit.
2. The facts leading rise to the present application in brief are that the plaintiff filed a suit for specific performance of the contract, permanent injunction, and damages against the defendants stating therein that an agreement dated 6.11.2004 was executed in between the plaintiff and defendant No. 1 whereby defendant No. 1 agreed to sale commercial plot No. 4/17, admeasuring 1000 sq. Yards situated at Firdous Colony Off. Firdous Cooperative Housing Society Limited, Karachi reserved for petrol pump/gas station for a consideration of Rs. 3,85,00,000/- of of which Rs. 38,50,000/- have been paid as advance to defendant No. 1. It is further stated in the plaint that it was agreed in- between the parties that the said petrol pump will be handed over to the plaintiff over the same plot alongwith full constructed running petrol pump and with all required permission, installation of C.N.G. Filling station over the said piece of land and that defendant No. 1 will also obtain the dealership of defendant No. 2 in favour of the plaintiff and that all the balance payment should be made within 90 days from the date of payment of advance money viz. 10.10.2004 and the petrol pump in running condition will be handed over to him on 10.1.2005. It is further stated in the plaint that defendant No. 1 did n6t complete the formalities' and obligations on his part in the performance of the contract and had served legal notice on 2.9.2005 thereby rescinding, from the contract, therefore the plaintiff filed the suit alongwith the present application.
3. The defendants have been served, and defendant No. 1 has filed written statement, inter alia denying therein the allegations contained in the plaint, as well as transfer of plot in question to the plaintiff so also the transfer of dealership in his favour. The allegations contained in the plaint have also been refuted thoroughly in his written statement.
4. The defendant No. 1 has also, filed counter-affidavit to this application refuting the claim of the plaintiff and has alleged, that since the" plaintiff did not pay the balance amount by the stipulated period, therefore, he violated the terms and conditions of the sale agreement and the defendant No. 1 was not obligated for the specific performance of the contract, therefore the contract was rescind and the injunction as prayed could not be granted.
5. I have heard Mr. Haseeb-ur-Rahman, Advocate for the plaintiff and Mr. Shaikh Javed Mir, Advocate for defendant No. 1.
6. Learned counsel for the plaintiff vehemently contended that the execution of the sale agreement has been admitted by defendant No. 1 in his legal notice as well as in his written statement and the execution of the same is therefore well-worded and accepted and defendant No. 1 is attempting to transfer the said plot/petrol pump to third party, in case,-if the injunction as prayed is not allowed, the plaintiff will suffer irreparable loss. He further contended that defendant No. 1 did not abide the terms and conditions of the agreement and did not complete all the requisite formalities viz. Obtaining, necessary permission for installation of C.N.G./Petrol Pump as well as transfer of dealership, therefore the payment could not be made to him in view of the contract because the defendant himself was at fault, therefore the plaintiff could not be blamed for violation of terms and conditions of the agreement. He further contended that the payment of balance amount could not be made for the simple reason that defendant No. 1 himself did not comply with the terms and conditions of the sale agreement and the legal notice served by him was an attempt to resile from the contract for which defendant No. 1 is bound for specific performance.
7. Mr. Shaikh Javed Mir, Advocate for defendant No. 1 vehemently controverted the contention advanced by the learned counsel for the plaintiff and has contended that the time was essence of the contract and defendant No. 1 completed all the formalities but the plaintiff did not arrange the funds for payment as per clause 3 of the contract for a long time, therefore the notice was served on the plaintiff thereby the contract was rescind, and that injunction could not be granted, In case, if the loss, if any, is measured in terms of money, in. Support of his contention, he has relied upon the case-law reported in SBLR 2005 PG-825 & 675; PLD 1986 Lahore 633; PLD 1673 Karachi 49; PLD 1976 Karachi 14; PLD 2003 Karachi 57 and 222.
8. I have considered the arguments advanced by the learned c. Ounsef for the parties and have gone through the mate. Nai, available before me.
9. It is settled principle of law that for the purpose of giant of temporary injunction, the plaintiff is required to prove existence of a good prima-facie case In his favour and that the balance of inconvenience lies in his favour and, in case, if the Injunction as Prayed is not granted, he-will suffer irreparable loss and Injunction Keeping in view the cordial principle of interim injunction, the plaintiff is required to prove that he possess a good prima facie case in his favour. The plantiff has stressed that the sale agreement dated 6.11.2004 was executed in between tho parties for sale as well as construction of C.N.G. Filling station/petrol pump for a consideration of Rs. 3,85,00,000/- of of which 10% advance amounting to Rs. 38,00,000/- have already been paid to the defendant No. 1 on 10.10.2004 and by virtue of clause 3 of the agreement, the remaining payment had to make within 90 days from the date of first payment viz. 10.10.2004 to which it will come to an end on 10.1.2005. The clause 3 of the agreement is, therefore, very material to consider whether the time was the essence of the agreement or not. Clause-3 of the agreement is usefully quoted herein blow for the sake of convenience.
10. "That the vendee above-named has agreed to pay the 10% of balance amount which is Rs.
11. 33,50,000.00 (Rs. 5,00,000.00 already paid of of a total of Rs. 38,50,00. 00) and the balance amount of Rs. 3,46,50,000/- (Rupees three Crores forty-six lac fifty thousand only) to the vendor above- named. The balance amount of Rs: 3,46,50,000/- would be paid - within 90 days, of the agreement which is to date 10.10.2004. The possession of the pump without any C. N.G. Fitting would be handed over by 1st party to 2nd party on 10.1.2005 after receiving total sale consideration.", A perusal of the contents of clause 3 of the agreement shows that the parties bind themselves to do certain acts in performance of the said agreement within a specific period and target date has been mentioned as 10.1.2005, on which date the petrol pump/C.N.G. Filling station had to handover with all necessary permissions and transfer of dealership after payment of total sale consideration, It is, therefore, evident that the agreement is well-worded with the specific date to do certain acts by the parties to the agreement as such, in my humble opinion, time was the essence of the contract and admittedly the plaintiff did not offer any payment of balance amount to defendant No. 1 on or about 10.1.2005 nor has even served any notice on the defendant that he has arranged balance of the contract money, and after acceptance of it the possession may be handed over to him, as such, in my humble opinion, the time, as provided under clause 3 of the agreement, has come to an end and the agreement becomes voidable at the opinion of the parties, in view of Section 55 of the Contract Act. Section 55 of the Contract Act stipulates and whenever the time is essence of a contract, the parties failed to comply with the terms and conditions within the stipulated period, and after expiry of stipulated time, it becomes voidable at the option of the parties. Scope of Section 55 of Contract Act was considered by the Hon'ble Supreme Court in the case reported in 1998 SCMR 2485, wherein after thorough examination of Section 55 ibid, the Hon'ble Supreme Court was pleased to observe that the intention of the parties is to be gathered from the contents of the contract and if from the terms and conditions of the contract, it transpires that time was essence of the contract, and after expiry of such time, it becomes voidable at the option of the parties. The observations made by the Hon'ble Supreme Court in the afore-stated case, is usefully quoted herein below for the sake of convenience:- "In order to determine whether, in relation to a particular contract, time is or not of the essence, intention of the parties, in terms of Section 5 of the Contract Act, is to be assessed. The general rule that time is,-to be presumed to be of essence in transactions of sale and purchase of goods and that it is usually not of essence in similar transaction touching immovable properties, as recognized by their Lordships in Abdullah Khan v. Muhammad Khan, PLD 1965 SC 690, can appropriately give way to a contrary intendment in the contemplation of the parties to a contract.
12. Such intention is to be gathered from the terms of the contract itself, as translated by the conduct of the parties and the attending circumstances. The terms themselves are to be constructed with reference to the spirit and substance rather than the bare words or recitals in a deed, In the instant case, as observed by my lord, both the parties stipulated a specific date for completion of the transaction, provided for the transaction to fall through unless completed within time and, above all acting on the commitment avowedly, ensured their presence at the time and place where the sale was to be completed, as visualized. No manner of doubt, therefore, arose in coming to the conclusion that the time, as postulated, was of the essence.
13. After tentative assessm ent of the material available on record, I am of the firm opinion that in view of clause-3 of the contract, the time was essence of the contract and irrespective of the fact that who is at fault amongst the parties, the agreement has come to an end after 10.1.2005 and after the end of agreed time, it becomes voidable at the option of the parties. Considering the case of the plaintiff from this angle, I am of the opinion that the plaintiff possesses no good prima facie case in his favour and he will suffer no irreparable loss, if injunction is refused.
14. It is also settled principle of law that whenever the loss, if any, is measured in terms of money, the general rule is that no injunction could be granted, In the present case, clause 5 of the agreement provides ponal clause which shows that in case, if the plaintiff fails to comply with the terms and conditions of the agreement, his advance amount should be forfeited and in case, if the defendant fails to fulfill his obligation, contained in the agreement, he will pay double amount to the advance amount, already received by him. In presence of the penal clause provided in the sale agreement, the right of the plaintiff has been secured to claim double of the advance amount which he has paid. Besides the said penal clause, the plaintiff in his suit has also claimed Rs. 1,00,00,000/- towards damages for mental torture and disturbance, vide para (II) of the prayer clause and Rs.
15. 1,00,00,000/- as compensation against the defendant No. 1 vide prayer clause (L) of the plaint, which shows that the plaintiff has already claimed damages against defendant No.1 and the Joss sustained by him has already been measured by him in terms of money, as such, in my humble opinion, he will not suffer irreparable loss, in case, if the injunction is refused. The case-law relied upon by the learned counsel for defendant No. 1, in my humble opinion, are supporting and advancing the case of the-defendant No. 1.
16. For the afore-stated reasons and circumstances, I do not find any merit in the present application, which is hereby dismissed. Needless to state that the above findings are purely tentative, which will riot affect the final judgment.