1. ' ALLAH DINO MEMON, J.--This High Court Appeal is directed against the order dated 21-11-1987 passed on C.M.A. No, 2100 of 1987, in Suit No, 327/1987 whereby the learned Single Judge of this Court has refused to issue temporary injunction and the interim stay granted earlier was vacated.
2. ' The brief facts giving rise to the present appeal arc that the plaintiff has filed the suit for specific performance of Agreement of Sale in respect of plot in suit entered into by the plaintiff with the defendant No,1 on 23-8-1986. The plaintiff has also claimed damages of Rs, 50,00,000. Along with the plaint an application under Order 39, Rule 1 C.P.C. Was moved requesting therein that till the final disposal of the suit, the defendants Nos.1 to 6 and/or other persons acting on their behalf be restrained from selling, transferring, alienating, marketing or parting with the possession of plot in suit and further from disposing of/charging or otherwise encumbering the assets of Builders Incorporated/the defendant No,1. The plaintiff/appellant has filed copy of Agreement as Anex. "A" to the plaint. The notice of the above application was served on the defendants/respondents and respondent No,3 filed counter-affidavit in which it was stated that he is managing partner of the Firm, named as defendant No,1 in the suit and that he had been negotiating and dealing with the plaintiff in respect of transaction, subject-matter of the suit and, as such, he was fully conversant with the facts. The plaintiff has committed breach of terms of the transaction set out in Annex. "A" inasmuch as the payment of Rs, 4,00,000 was condition precedent for execution of a proper agreement of sale between the parties and that his case suffers from lachcs as he had taken more than eight months to seek relief. It was further stated that Annex. 'A' is a receipt of Rs, 1,00,000 out of Rs, 25,00,000 but it was denied that it is a conclusive Agreement so as to give right of specific performance to the plaintiff. The transaction was to proceed further by way of execution of Agreement of Sale if the plaintiff had paid Rs, 4,00,000 on or before 1-9-1986. The plaintiff failed in making the said payment before the fixed date or even approached the defendant with a draft of Agreement of Sale because, without exception, it is the buyer who draws up the documents and, as such, he (defendant) by his letter dated 2-10-1986, cancelled the Agreement by invoking clause (7) of the said receipt. In fact since the plaintiff unilaterally altered the condition No,2 of the receipt making it dependent on the performance of the act stipulated in paras. (4), (5) and (6) thereof the so-called contract stood cancelled under the law of contract itself, and formal cancellation by him was not necessary. That he did not receive any notice or reply to his cancellation and also did not come across any public notice in the newspaper. The plaintiff had no intention and still has no intention to complete the transaction because neither in legal notice nor in the plaint nor in the affidavit, he has come out with the offer of depositing the sale consideration in the Court. The plaintiff had intentionally sent the notice at the wrong address so as to keep the defendant in dark.
3. It was further stated that defendants were prepared to deposit Rs, 1,00,000 in Court subject to their right of confiscating the whole amount or part thereof on proving that they lost prospective business of at least Rs, 2,00,000 profit due to failure on the part of the plaintiff to pay Rs, 4,00,000 on or before 1-9-1989. That the plaintiff has no cause of action and the application was liable to be dismissed.
4. ' The learned Single Judge after hearing the parties was pleased to dismiss the above application.
5. The present High Court Appeal is directed against the impugned order dated 21-12-1987 refusing to issue interim injunction as prayed.
6. ' We have heard Mr. Khalid Anwar, learned counsel appearing for the appellant, Mr. A.A. Fazeel, learned counsel appearing for the respondents and have also gone through the documents produced along with the Appeal.
7. ' It has been contended by Mr. Khalid Anwar, learned counsel appearing for the appellant that the appellant has been always ready and willing to perform his part of the contract and he never avoided to pay the amount as agreed. On the contrary it was the defendants/respondents who avoided to accept the amount and to execute formal Agreement on one or the other pretext in spite of repeated requests of the appellant. The respondents also failed to furnish upto date dues clearance in relation to the said plot and kept the plaintiff on false hopes.
8. ' That the learned Single Judge has failed to consider three important conditions which were essential for the grant or refusal of interim injunction. That the appellant had a right to sue for damages in addition to relief for specific performance of the contract and, therefore, merely because the appellant had claimed damages as well, the relief for specific performance could not be refused. That the appellant has deposited Rs, 25,00,000 before this Court on 15-8-1988 in compliance of the order dated 11-8-1988, passed by this Court.
9. ' Mr. A.A. Fazeel, learned counsel appearing for the respondents has contended that the document produced by the appellant was merely a receipt of Rs, 1,00,000 and the Agreement to sell was to be executed only after Rs, 4,00,000 were paid by the appellant on or before 1-9-1986. That since the appellant could not pay the amount as promised for a long time, the respondents had to cancel the contract and such intimation was sent to the appellant. That the appellant has failed to produce any document to show that any offer was made by him for payment of Rs, 4,00,000 before 1-9-1986. That after interim injunction was vacated, the respondents have transferred the assets of respondent No,1 to Dr. Haq Nawaz Arab of Nadim Clinic in January, 1988, by executing an irrevocable General Power of Attorney which was duly registered, so as to meet the last date of clearing dues as fixed by K.D.A. And the respondents Nos.2 to 6 are no longer in possession of the Flat Site in question. That the order passed by the learned Single Judge was proper and legal and does not call for interference from this Court.
10. ' We have considered the contentions of the learned counsel, and have gone through the documents produced by-the parties.
11. ' In order to appreciate the respective contentions of the learned counsel it is necessary to consider the contents of the receipt executed by the respondent No,3, which reads as follows:- RECEIPT "RECEIVED mum of Rs, 1,00,000 only (Rupees one hundred thousand only) from M/s. Haji Abdul Karim and others as part payment in respect of plot measuring about one acre and bearing No, FL-13, Block 15, situated in Gulistan-e-Johar, K.D.A. Scheme No, 36, Karachi.
12. Karachi, Dated 23-8-1986.
13. KHAN ABDUL QAYYUM Attorney, M/s. Builders Incorporated, 1st Floor, Fitman Chambers, Abdullah Haroon Road, Karachi-5.
14. N.B.
(1) The total sale consideration of the above-mentioned plot, i.e, FL-13, Block 15, Guilstan-e-Johar, K.D.A. Scheme 36, Karachi and owned by M/s. BUILDERS INCORPORATED, excluding K.DA's balance payment of third and fourth occupancy value instalments, has been agreed at Rs, 2,504,700 only (Rupees two million, five hundred four thousand and seven hundred only).
(2) In addition to the part payment of Rs, 1,00,000 only the receipt of which is acknowledged above, a sum of Rs, 4,00,000 only (Rupees four hundred thousand only) shall be paid to M/s. BUILDERS INCORPORATED, on or before 1-91986, and a proper agreement shall be executed betvken the parties.
(3) Upon payment of the balance amount of Rs, 2,004,700 only (Rupees two million four thousand and seven hundred only) on or before 30-10-1986 sub-general power of attorney shall be executed in the name of nominee of the BUYER.
(4) The sellers shall prepare and sign all documents required for the transfer of M/s. BUILDERS INCORPORATED to the name of the Buyers before making full and final payment of the total sale consideration of the plot. This shall be done only upon the consent of M/s. ASHRAF HOUSING CORPORATION. The consent shall be arranged by the Buyers,
(5) M/s. BUILDERS INCORPORATED shall furnish an up-to-date dues clearance of the FL-Site in question.
(6) The SELLERS undertake to take all necessary steps, after the completion of the transaction, to transfer itself M/s. BUILDERS INCORPORATED to the Buyers,
(7) In case M/s. Haji A. Karim & others failed to make payments of the balance sale consideration on the above specified dates, the transaction shall stand cancelled and amounts paid by M/s. To M/s. BUILDERS INCORPORATED shall stand forfeited."
15. ' The bare reading of the above receipt shows that the respondents were to execute the proper Agreement of Sale after they were paid Rs, 400,000 and the said amount was to be paid on or before 1-9-1986 while the remaining amount was to be paid by 30th October, 1986, when sub- general-power of attorney had to be executed in the name of the nominee of Buyer. The defendant No,1 had also to furnish up to date dues clearance of the FL-Site, in question. Although the receipt shows that the amount of Rs, 4,00,000 had to be paid on or before 1-91986 but no particular date for payment was fixed.
16. ' In the case of Muhammad Ayub v. Ch. Muhammad Aslam and another 1984 CLC 2159 it was observed that:-- "15. It is difficult to appreciate the argument of the learned counsel for the appellant that the time of one month fixed in the agreement of sale for payment of the balance of the sale price and registration of the sale-deed was the essence of the contract. No purpose of the deal or any need for sale has been given in the deed of agreement. As is well-settled by a long string of authorities of the highest Courts of the realm, including Jamshed Khodaram Irani v. Bujoriji Dhunjibhai (2) and Seth Essabhoy v. Saboor Ahmed (3) in a contract of sale of land though period is fixed for completion of the sale mere mention of the period does not make time essence of the contract.
17. The presumption in such a case is that the parties intended that the agreement should be performed within a reasonable time and time is not to be considered as essence of the contract.
18. The appellant, therefore, could not in the circumstances of the case unilaterally revoke the agreement simply because he had not received payment of the balance of consideration within a month specially when he was more to be blamed for the non-fulfilment of the contract."
2. In the case of Ghulam Nabi and others v. Seith Muhammad Yaqoob and another PLD 1983 SC 344; it was observed by their Lordships that:-- "Though time is not ordinarily considered as being of the essence of the contract involving transaction of immovable property but the true intention of the parties can be gathered from the terms of the contract and the facts and circumstance of the case and mere mention of time in the contract for its performance does not necessarily mean that time was of the essence."
19. ' The above decisions relied upon by Mr. Khalid Anwar do support his contentions.
20. ' In the case of Major Riaz Ahmad v. Hamid Aziz Shaikh and 2 others PLD 1976 Lah. 871 relied upon by Mr. A.A. Fazed, learned counsel appearing for the respondent, wherein the property subject- matter of winding up of the company proceedings was in possession of the Receiver appointed by the High Court. The respondents filed suits in the Civil Court and obtained injunction restraining the Receiver appointed by the High Court in a case pending on the original side of the Court from virtually performing his duties as a Receiver and on the basis of interim injunction orders dispossessed the Receiver. On the report of the Receiver show-cause notices were issued against the plaintiffs/respondents to show cause why they should not be punished for contempt. In the said proceedings it was found that the plaintiffs were not in possession and the Receiver was in possession of the property, and, therefore, apart from the action which was taken against some of respondents it was observed that:-- "I have already held that the plaintiffs in the suits were not in possession of canteen or Cycle Stands, the possession was of Malik Mehmood Akhtar. In any case, this injunction order was infructuous since Receiver was already in possession of property and was not effective against him."
21. There is no doubt that if there would have been evidence to show that the respondents were not in possession of the plot in dispute, it would have been futile to issue interim injunction as prayed.
22. Apart from the assertion in the counter-affidavit, filed by respondent No,3, no document has been produced by the respondents to show that assets of respondent No,1 have been transferred to Dr. Haq Nawaz Arab in January, 1988. Neither the copy of irrevocable power of attorney has been produced nor any affidavit of Dr. Haq Nawaz Arab has been produced to support contention of the respondents. The appellant has already deposited further amount of Rs, 25,00,000 as directed by this Court vide order dated 11-8-1988.
23. ' From the above discussion, it is clear that the appellant has been able to make out a prima facie case and in case interim injunction, as prayed, is not granted, he will suffer irreparable loss.
24. The fact that after receipt of letter dated 5th October, 1986, from respondent No,3, regarding cancellation of transaction, the appellant sent a reply dated 14th October, 1986 to the respondent No,3 and also published notices in newspapers Daily 'Dawn', dated 21st October, 1986, Daily `Jang' dated 21st October, 1986 and a Gujrati newspaper dated 20th October, 1986 and the fact that when directed by this Court, the appellant deposited the amount of Rs, 25,00,000 within two days, before the Nazir of this Court, goes a long way to show that the appellant was ready and willing to perform his part of contract. Mere fact that the appellant had also claimed damages in the suit could not give rise to the presumption that he was not interested in performance of the contract as by virtue of section 19 of Specific Relief Act, the plaintiff/appellant could claim damages in addition to the relief of specific performance of contract. The learned Single Judge in the High Court has clearly erred in holding that: "Since the plaintiff himself has assessed the damages because of cancellation of agreement and have prayed for decree of damages of Rs, 50,00,000 the loss allegedly suffered by them is not irreparable and can be assessed in terms of money."
25. In view of the above discussion, we are of the considered view that the plaintiff/appellant has made out a prima facie case, balance of convenience lies on his side and in case the interim injunction, as prayed, is refused he will suffer irreparable loss. We, therefore, allow this Appeal, set aside the impugned order and grant injunction as prayed, till the final disposal of the above suit.
26. ' The amount of Rs, 25,00,000 (Rupees twenty five lacs) deposited by the appellant in this Court shall be invested by the Nun- of this Court in Khas Deposit Certificates. .