1. ' This is a suit for the recovery of Rs, 2,71,500. The claim in suit arises out of breach of a contract. The defendants were contemplating to construct a building comlex on a plot No, 1, 2-R.B. 7 near Khaliqdina Hall, Bunder Road, Karachi. They offered to lease out shops and show rooms in this complex. The case set up by the plaintiff in their plaint is "that at Karachi the defendants represented to the plaintiffs that they had embarked on a project of constructing a huge building Hussain Silva Markaz with 500 show rooms and shops, of ultra-modern designs and unique facilities and amenities such as spacious plazas, escalators, car park and restaurant with facilities of lifts and telephones and air-condition." The plaintiff became interested and after primary negotiation and inspection of the site plan and other publicity material furnished by the defendant to the plaintiff and relying on the representations of the defendants the plaintiff agreed to take on rent show rooms/shops in the said Markaz for opening a retail shop of the plaintiffs. Among the terms settled between the parties it was agreed that the plaintiffs should deposit a sum of Rs, 3,00,000 with the defendants. This amount of Rs, 3,00,000 which may be called as a security or deposit money was to be paid to the defendants in three equal instalments. The first instalment of Rs, 1,00,000 was payable immediately. It was further agreed that all these deposits would lie with the defendants but would carry an interest at the rate of 9% per annum payable to the plaintiff from the date of the payment till the date of handing over vacant possession of the show rooms premises by the defendants to the plaintiffs. It is admited position that the plaintiffs paid to the defendant a sum of Rs, 1,00,000 on 27th July, 1968, through a cheque. They further paid another instalment of Rs, 1,00,000 by cheque, dated 16th April, 1969. Although this payment was premature but was paid at the request of the defendants to help them tide over the financial difficulties which the defendant were facing at that time. According to para. 9 of the plaint after one year of the deposit of the first instalment the plaintiffs demanded from the defendants a sum of rupees nine thousand being the interest accrued on the deposit of first instalment.
2. ' The plaintiffs continued to press the defendants to fulfil the contract by starting construction and handing over possession of the premises to the plaintiffs. Several meetings were held between the plaintiffs and the defendants and correspondence and telephonic communications were exchanged but to no avail. As a result of the failure of the defendant to construct and hand over possession of the show rooms to the plaintiff, it is so argued before me, the plaintiffs were driven to the necessity of filing the present suit for the recovery of the amount of deposit in the sum of Rs, 2 lacs being the principal amount and Rs, 71,500 being the amount of interest accrued on this money from the date of payment till the filing of the suit. A further prayer is made for a decree for future interest on the principal amount of Rs, 2 lacs from defendant till the date of payment at the agreed rate of 9% per annum.
3. ' The defendants have filed the written statement in which they have tried to explain the problem and difficulties they had to face and their ultimate inability to raise this construction. In para. 7 of the written statement the defendants have accepted having received the deposit money. Para. 7 is as under :- "7. Referring to paras. 6 to 8 of the plaint, it is not denied that the answering defendants had received a total sum of Rs, 2 lacs.
4. ' However, it is denied that Rs, 1 lac were paid in excess due to the answering defendant's tide financial position."
5. ' It is unfortunate that having accepted the receipt of payments the defendants have unnecessary embarked on narrating the story bow and why they have failed to raise construction. It appears that defendants did not care to appreciate the fact that the plaintiffs had not filed a suit for specific performance or damages but simply for the return of the money which they had paid and which the defendants accept having received. The claim of interest is based not only on agreement between the parties but is even otherwise equitable because this money remained with the defendants and must have been employed for the purposes of their business during all these years. I have quoted para. 7 of the written statement above and now I quote para. 11 of the written statement which is as follows :- " The allegations of paras. 12 to 14 of the plaint are denied. It is denied that the plaintiffs are entitled to claim refund of Rs, 2 lacs or any other amount or that they are entitled to claim interest from the answering defendants on the above amount. It is submitted that the defendants were unable to hand over the show room to the plaintiffs for the reasons beyond their control and therefore, they cannot be blamed for the delay. It is submitted that the answering defendants have been all the relevant time ready and willing to perform their obligation under the agreement and in fact they did what was possible under the circumstances of the case. Without prejudice to the foregoing, it is again submitted that no specific time for handing over of the show room was agreed upon between the parties. Without prejudice to the foregoing, it is submitted that in any case the time was not the essence of the contract, and therefore, the plaintiffs cannot repudiate the contract on the ground of the alleged delay nor they can ask for the refund of the amount."
6. ' The question arises whether in view of averments of para. 5 of the written statement and indeed in the light of clear admission of the liability by the learned counsel for the defendants even at the stage of arguments this denial has any basis or any substance. With these pleadings of the parties the following issues were framed
(1) Whether the defendants have communicated all the relevant facts to the plaintiffs at the time of entering into the agreement or misrepresentative as alleged in the plaint ?
(2) Whether any period for handing over of the premises in question was agreed upon between the parties. If so, whether the same was the essence of the contract ?
(3) Whether the defendants were unable to construct the premises in question within the alleged agreed period for the reasons beyond their control. If so, what is its effect ?
(4) Whether the plaintiff had agreed to take alternate accommodation temporarily free of rent in the project in question as alleged in para. 10 of the written statement. If so, what is its effect ?
(5) Whether the defendants have committed any breach of the terms of the agreement ?
(6) What relief or reliefs the plaintiffs are entitled to ?"
7. ' I fail to understand how on the averments of the pleadings of the parties this set of issues can in any manner be helpful for writing a, judgment in this case As stated above it was not a suit for specific performance of the contract and damages and as such the accusations of the plaintiffs and explanations of the defendants may be of some academic value but were not germane .To the controversy between the parties. Precisely the position is that the plaintiffs are demanding the money which the defendants themselves have admitted to have received.
8. When the case came up for hearing before me plaintiffs have examined Khalifa Muhammad Hameedullah in support of their case. This witness was the director of the Bata Shoe Company and is now retired. He has given his side of the story in full details producing the documents which passed between the parties and narrating the circumstances under which this contract was concluded; the meetings that took place between the representatives of the plaintiffs and the defendants, the assurances given to the plaintiffs by the defendants from time to time. His statement remains unchallenged. The line of cross-examination of this witness is an ample testimony to the fact that the defendants have delayed the payment of this money without any jurisdiction only to prolong and delay the relief to which the plaintiffs were entitled. There is no suggestion in the cross-examination that this money was not received or the interest is not payable. The statement of the witness goes unchallenged.
9. In my humble view the simple question that arises is whether the defendants have received Rs, 2 lacs which is now being claimed by the plaintiffs. The answer is provided by para. 7 of the written statement which I have quoted above. So far as the interest is concerned it is not denied till today that it was not an agreed upon or that the rate of interest is excessive or oppressive or unreasonable. In the circumstances there is no choice but to decree the suit with costs and interests as prayed. Suit decreed as prayed.