' ATIR MAHMOOD, J.---Brief facts leading .To filing of this appeal are that the appellant filed a suit on 12.10.2004 for specific performance of agreement to sell with the averments that the respondent entered into an agreement to sell dated 23.07.2003 to sell her House No,35, College Block, Allama Iqbal Town, Lahore (hereinafter called "the suit property") for consideration of Rs,26.50 million with the appellant; that a sum of Rs,10.00 million was paid and six months time was agreed between the parties to facilitate the respondent to arrange alternative accommodation; that as per clause 1 of the agreement, balance sale price of Rs,16.50 million was agreed to be paid at the time of execution of sale deed or before 07.02.2004; that since the respondent neither vacated nor transferred the suit property; that the appellant sent a letter dated 05.04.2004 asking for early completion of the sale deed whereupon the respondent gave verbal assertions; that finally, the appellant served a legal notice dated 23.08.2004 seeking execution of sale deed by end September or otherwise in addition to specific performance, costs towards rent @ Rs,175,000/- per month from 01.10.2004 till delivery of possession were demanded whereupon the respondent refused to execute sale deed on the premise that she was not paid the balance sale price on 07.02.2004 as agreed in the agreement.
2. The respondent-defendant `appeared and filed contesting written statement. Following issues were settled: ISSUES
1. Whether the plaintiff has come to this court with un-clean hands? OPD
2. Whether the plaintiff has no cause of action and locus standi? OPD
3. Whether the suit is barred by limitation? OPD
4. Whether the time was essence of the contract? OPD
5. Whether the suit is barred by law? OPD
6. Whether the plaintiff is entitled to a decree for specific performance of the sale agreement dated 23.7.2003; if so, on what terms and conditions? OPP
7. Relief."
' After recording evidence of the parties and hearing both sides, learned trial court, vide judgment and decree dated 26.05.2010, dismissed the suit, however, compensation of Rs,11,500,000/- was granted. Hence this RFA has been instituted.
3. Learned counsel for the appellant inter alia contends that learned trial court erroneously held that time was the essence of the agreement and did not consider that simultaneous possession was required and respondent never vacated the property or provided necessary documents to execute sale deed; that learned trial court failed to read and interpret clause 1 of the agreement in its entirety; that evidence of the parties has also not been appraised by the learned trial court in its true perspective; that no weightage was given to the fact that substantial payment was made by the appellant for purchase of the suit house; that the appellant was ever ready and capable to make balance payment to the vendor; that the respondent never asked the appellant that the suit property is vacant or that she be paid balance amount; that the impugned judgment and decree is contrary to the principles of interpretation of documents where the cardinal rule is that document is to be read as a whole; that the impugned judgment and decree is against law, therefore, this appeal be allowed, the impugned judgment and decree be set aside and the suit of the appellant be decreed as prayed for.
4. On the other hand, learned counsel for the respondent argues that the time was essence of the contract and target date in this regard was fixed as 07.02.2004. He asserts that as per agreement, the sale deed was to be executed and the possession was to be delivered on payment 'of whole consideration but the appellant-plaintiff has badly failed to pay the sale price within the stipulated time. He also refers clause 19 of the agreement to sell which is regarding revocation of the contract by the vendor if she wishes so on or before 07.02.2004. He has relied upon the law laid down in case reported as Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334), Muhammad Sharif and others v.. Nabi Bakhsh and others (2012 SCM R 900) and Zahid Rahman v. Muhammad. Ali Asghar Rana (2007 CLC 1814).
5. We have heard arguments of learned counsel for the parties and also perused the record with their able assistance.
6. The agreement to sell dated 23.07.2003 as well as sale price fixed therein is admitted between the parties. The whole crux of arguments of learned counsel for the parties is whether or not the time was essence of the contract between the parties.
7. Clauses 1, 6, 10 and 19 of agreement to sell are relevant regarding .The issue in hand which are discussed in the succeeding paragraphs.
8. As per clause 1 of the agreement, the remaining balance price of Rs,16.50 million was required to be paid at the time of execution of sale deed or before 07.02.2004 whichever was earlier. This clause further reads that the possession of the property will be handed over to the vendee upon full and final payment of the entire sale price. This clause clearly binds the appellant-vendee to ensure payment of the sale price within the stipulated time, i.e, by 07.02.2004 as it has been written therein that the balance sale price will be paid at the time of execution of sale deed or before 07.02.2004 whichever time comes first. Since the time of execution of sale deed never came, the target date for sale price was 07.02.2004 and the appellant was bound to pay the remaining sale price on or before 07.02.2004.
9. According to clause 6 of the agreement, the vendor, after receipt of entire sale price within the stipulated time, will execute and register sale deed and do all the acts required for conveying and transfer the ownership of the property in favour of the vendee or its nominee. This clause also reflects that the execution of the sale deed and transferring of the property in the name of the vendee or its nominee was to be done after receipt of whole sale price within the stipulated time and not thereafter.
10. Clause 10 of the agreement also states that remaining sale price of the suit property will first be made and then the vendor will execute the sale deed.
11. There is another clause, i.e, clause No,19 which allows the vendor to revoke the agreement to sell in question and in that eventuality, he was obliged to pay a sum of Rs,11,500,000/- to the vendee. As pe this clause, learned trial court while refusing to pass the decree of specific performance of agreement to sell in favour of the appellant has burdened the respondent-vendor with the said amount.
12. Admittedly, neither the appellant made any effort to pay the remaining sale price to the vendor by issuing any pay order/draft in favour of the defendant nor sent any notice to the vendor to perform her part of the agreement before expiry of the target date, i.e, 07.02.2004. The notices/letters allegedly written to the defendant to perform her part of performance were after the target date of 07.02.2004 as first notice (Exh.P4), according to the appellant side, was written on 05.04.2004 followed by legal notice dated 23.08.2004 (Exh.P5). The appellant produced DW.1 Sohail Yar Khan, as a solitary witness who during the cross-examination admitted that in every circumstances, execution of the sale deed was to be completed till 07.02.2004. There is absolutely no evidence or corroborative evidence which could suggest that the appellant was ready to perform its part of the agreement and the respondent avoided the same. On the other hand, there is overwhelming evidence in the form of statements of DW.1 to DW.3 that no effort was made by the appellant to pay the balance consideration amount within time. It was noteworthy that a suggestion was put by the appellant to DW.2 which was replied in affirmative that the defendant was liable to deliver the possession of the property after entire payment and execution of sale deed. This suggestion is against all the grounds which have been urged now before this Court that the appellant was obliged to pay the balance amount after delivery of possession. In the circumstances, the appellant failed to make payment of balance sale price within the stipulated time, as such, the appellant bank was not entitled to the decree of specific performance which is even otherwise a discretionary relief and the court, even if the case is proved, could refuse to exercise its discretion.
13. The summary of whole discussion is that the appellant has failed to make payment within the stipulated time, therefore, the appellant was not entitled to the decree of specific performance.
Furthermore, it was only discretionary relief and the court could refuse the same even if the case was proved by the plaintiff. We see no illegality in the impugned judgment and decree which is accordingly sustained. Resultantly, this appeal fails. Dismissed.