ABDUL SATTAR ASGHAR, J.---This regular second appeal under section 100 of the Code of Civil Procedure Code, 1908 is directed against the judgment and decree dated 28.06.2014 passed by the learned Civil Judge, Narowal whereby appellant's suit for specific performance was dismissed. It also assails the judgment and decree dated 17.12.2014 passed by the learned District Judge Narowal whereby appellant's appeal against the judgment and decree of the Civil Judge was also dismissed.
2. Learned counsel for the appellant argues that the learned courts below erred in law while maintaining that time was essence of the contract between the parties and that the appellant has failed to perform his part of the agreement within the stipulated period; that the impugned judgments and decrees of the learned courts below being contrary to law are untenable and liable to set aside.
3. Arguments heard. Record perused.
4. By virtue of the alleged agreement to sell dated 26.06.2009 (Exh.P.1) the appellant paid a sum of Rs,1,00,000/- in cash and Cheque No,6380057 dated 01.07.2009 worth Rs,2,00,000/- to be drawn on Habib Bank Limited Main Branch Narowal to Nasir Javed respondent/vendor as earnest money.
Agreement (Exh.P.1) contains a specific clause which reads below:-- {{URDU TEXT}} ' In view of the above quoted clause time was essence of the contract. Learned counsel for the appellant frankly admits that the appellant did not transfer a sum of Rs,2,00,000/- as advance money in the aforementioned bank account of the respondent till the stipulated date i,e, 01.07.2009, however vehemently argues that as per record a sum of Rs,1,80,000/- was on-line transferred in the account of the respondent on 03.07.2009. There is nothing on the record to show that the respondent has ever drawn the said amount allegedly transferred by the appellant in the ,account of the respondent on 03.07.2009 i,e, after two days of the stipulated date.
5. In the case titled Sandoz Limited and another v. Federation of Pakistan and others (1995 SCM R 1431) the Hon' ble. Supreme Court of Pakistan quoting various passages from the renowned treatises has enumerated the following factors to be considered for determining as to whether time is essence of the contract:--
(i) The parties to a contract may make time for the performance of their contract as the essence by expressly providing that 'time is of the essence' or by using any other words which may manifest that the intention of the parties is that the time shall be of essence of the contract.
(ii) That the intention of the parties as to the factum, whether the time for the performance of the contract is of the ,essence or not may be ascertained by the nature of the contract or the circumstances of the case. If the nature of the contract is such that non-performance of the same within the stipulated period rendered the contract for the promise useless or of no benefit, the time for the performance shall be construed as of the essence.
(iii) That if non-performance of the contract within the stipulated period does not cause any loss or injury to the promisee, time is not regarded as of the essence of the contract even when a date for completion of the contract is specified.
(iv) The rule of the common law was that time for performance of a contract was always considered as the essence and nonperformance of the same within the agreed time used to render a promissory to be sued inter alia for damages, but with the passage of time, the above rule stands modified/ negated inter alia by statutory provisions, like section 10(2) of the English Sale of Goods Act, 1893, which provides that stipulations as to the time of payment are not deemed to be the essence of the contract of sale, subject to a contrary express agreement.
(v) When under the terms of the contract both the parties have undertaken to do certain acts, in other words, they have made reciprocal promises, the party who brings an action against the other party will have to prove that he had performed his part under the contract or that he had done everything that was in his power to do before he could bring such an action.
6. The Hon'ble Apex Court in the above said dictum after discussing the case law deduced some principles to determine the question as to whether time is essence of the contract. Relevant extracts of the above referred dictum reads below:-- "24. From the above case-law discussed, the following principles are deducible:
(i) That in case of a contract involving sale of an immovable property time is not the essence in the absence of an express provision making it so.
(ii) That in case of commercial contracts time is generally the essence of the contracts unless from the terms of the contracts and the conduct of the parties it can be inferred otherwise.
(iii) That in all the contracts irrespective of the nature of the subject matter, the question, whether time for performance of the contract specified is the essence, will depend on the intention of the parties to be ascertained from the terms of the contract. In doing so, resort can be made to the conduct of the parties preceding and subsequent to the conclusion of the contract.
(iv) That even in a contract in which time for the performance is not the essence of the contract, it can be made as the essence of the contract if the promisor or promisee is guilty of an inordinate delay in performing his obligation by serving a notice specifying reasonable time for completion of the contract.
(v) That a contract in which the time for performance of the contract is the essence but the aggrieved party does not repudiate or cancel the contract upon the failure of the other party to perform his part under the contract within the agreed time, on the contrary continues to press for completion of the contract, waives the term relating to making the time as the essence of the contract. However, he can by serving a reasonable notice upon the defaulting party can remake the time as the essence of the contract. "
' At this stage it will be expedient to reproduce the provision of section 55 of the Contract Act 1872, which reads below:- "55. Effect of failure to perform at fixed time in contract in which time is essential.-When a party to a contract promises to do a certain thing at or before a specified time or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable, at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such failure when time is not essential.---If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than that agreed upon.-If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance, he gives notice to the promisor of his intention to do so."
7. Bare reading of the above quoted provision of the Contract Act, 1872 and the case law clearly manifests that the question whether time is essence of the contract is to be determined from the intention of the parties as gathered from the facts and circumstances of the case and mere mention of time in the contract does not necessarily lead to the conclusion that time was the essence of the contract. In the light of the above dictum of the Hon'ble Supreme Court, specific term of the agreement (Exh.P.1) that 'in case the appellant fails to transfer a sum of Rs,2,00,000/- in respondent's given Bank Account up till 01.07.2009 the contract shall be deemed as cancelled' is very significant. The expression 'the contract shall be deemed as cancelled' bears consequences of appellant's default and clearly manifests intention of the parties that in this case time was essence of the contract.
8. Needless to say that in the instant case there is no ambiguity in the agreement (Exh.P.1) with regard to respective obligations and intention of the parties. Petitioner's own evidence reveals that a sum of Rs,1,80,000/- was on-line transferred by one Mubarak Ahmad son of Hashmat Ali in the bank account of the respondent on 20.04.2013. The said Mubarak Ahmad is not a party to the impugned agreement to sell (Exh.P.1) rather he is one of the witnesses of the said agreement. As per terms of the agreement the said Mubarak Ahmad was under no obligation to make the said payment of Rs,1,80,000/- to the respondent. Besides it is pertinent to mention that there is nothing on the record to show that the respondent has ever accepted or drawn the sum of Rs,1,80,000/- allegedly transferred by Mubarak Ahmad in the respondent's account on 03.07.2009 i,e, after two days of the stipulated date. It is obvious that the appellant has miserably failed to perform his part of the agreement up till the due date. Therefore agreement (Exh.P.1) has become void and unenforceable in terms of section 21(d) of the Specific Relief Act 1877 and the suit for specific performance was not maintainable.
9. In view of the above, the learned trial court has rightly non-suited the appellant through the impugned judgment and decree dated 28.06.2014 maintained by the learned first appellant court vide impugned judgment and decree dated 17.12.2014 in accordance with law. I do not find any misreading or non-reading of evidence, perversity, factual or legal infirmity in the concurrent findings of law and facts rendered by the learned courts below, therefore the same do not call for any interference by this Court.
10. For the above reasons, this regular second appeal being devoid of any merit is dismissed in limine.