P L D 1959 (W (PLP)

INAMULLAH, J.‑This is a first appeal against the judgment passed by Muhammad Bux, J. on 5th September, 1955 dismissing the plaintiff‑appellant's suit for specific performance of the contract or in the alternative for damages. The facts briefly put are these : The plaintiff‑appellant entered into a contract on 20th January, 1949 with the defendant‑respondent for the purchase of a plot of land with the structures thereon for Rs. 16,

750. Two agreements were executed on the same day, namely, on 20‑1‑1949. The plaintiff' by the first agreement paid Rs. 2,000 as earnest money. It was agreed between the parties by this agreement that the balance of sale consideration will be paid within two month and the vendor will execute the sale deed in favour of the plaintiff‑appellant. By the second agreement it was agreed between the parties that the plaintiff‑appellant will further pay a sum of Rs. 4,750 towards ‑ the purchase price within a week. It was further agreed between the parties that the vendor will grant the vendee an extension upto 18 months from the date of the execution of the agreement to enable the plaintiff‑appellant to pay .the balance of the sale consideration and obtain the conveyance of the property. The plaintiff‑appellant was to be put in possession of the property. The purchaser was also permitted to make any alterations or additions of a temporary nature in the premises. The vendee was to pay Rs. 50 as rent from the date of the expiry of the said period of two months mentioned in the first agreement. The rent was payable till the vendee got a conveyance of the property. The plaintiff was put in possession of the property on 20th November, 1949. It is alleged in the plaint that the plaintiff has effected improvement in the building which has cost him Rs. 10,

000. It is further alleged that the plaintiff called upon the defendant to produce the income‑tax clearance certificate and the no objection certificate of the Custodian. The defendants failed to produce these documents. The plaintiff‑appellant was ready and willing to perform his part of the contract by paying the balance of the purchase money on the defendant producing the income‑tax certificate anti the no objection certificate of the Custodian. In case the suit for specific performance was not decreed, the plaintiff prayed for the refund of Rs. 6,750 paid by him and also the cost of the improvements effected by the plaintiff‑appel lant in the building. He also claimed damages, being the difference between the contract price of the land namely Rs. 12 per square yard and the market price being Rs. 30 per square yard. The amount of damages so calculated came to Rs. 25,853‑8‑

0. This amount included brokerage also. The defendant denied the plaintiff's claim and alleged that he was always ready and willing to perform his part of the contract and that it was the plaintiff who has committed the breach of contract. On these grounds the defendant contended that he was entitled to forfeit the money paid by the plaintiff. It is also contended that the plaintiff‑appellant was not in a position to pay the balance of the sale consideration and that inspire of several extensions to the plaintiff‑appellant to have the sale‑deed executed, he failed to do so. The defendant, finally on 18th September, 1950 put an end to the contract. The plaintiff did not pay any rent to the defendant as stipulated by the agreement. The plaintiff‑appellant was also not entitled to any compensation on account of the improvement or additions as the same was against the terms of the contract. Under the terms of the agreement, the plaintiff‑appellant was entitled to make improvements of a temporary nature only. On the pleadings as set out above Muhammad Bux, J. struck the following issues :‑ (1) Was the plaintiff ready and willing to fulfil his part of the contract ? (2) On whose part is the breach of the contract and when did it take place ? (3) To what decree, if any, is the .plaintiff entitled ? (Covers paras 9, 10 and 13 of the plaint and paras 12 and 14 of the written statement). (4) General with special reference to costs. The learned Judge on issue No. 1 held that the plaintiff was not ready and willing to fulfil his part of the contract. On Issue No. 2 he found that the plaintiff was guilty, of the breach of contract. On Issues 3 and 4 he held that the plaintiff was not entitled to any relief and dismissed the suit. Mr. Abbas Zia raised three fold contentions before us (1) that the learned Judge was wrong in his conclusion that the plaintiff was not ready and willing to perform his part of the contract ; (2) that the defendant committed the breach of contract inasmuch as he failed to supply a copy of the income tax clearance certificate and the no objection certificate of the Custodian ; and (3) that the defendant could not by his unilateral act fix the time limit for the performance of the contract, time being not the essence of the contract. We propose to consider these points separately. Whether the appellant was ready and willing to perform his part of the contract may be considered from two angles. In the first place, willingness to perform one's contract in respect of purchase of property implies the cap city of the purchase to pay the requisite sale consideration within the reasonable time. In the second place, even if a purchaser had the capacity to pay the sale consideration, the question still remains whether he had the intention to purchase the property. On consideration of all the facts it appears that the appellant was not in a position to pay the balance of the sale consideration. At any rate, the appellant was not willing, even if he had the capacity to pay the money, to have the sale deed completed. the appellant on his own admission had borrowed Rs. 10,000 from Showket Ali and had pledged his ornaments with one Maherali in order to take a loan of Rs. 4,

000. At the time of his examination before the learned Judge he had only about Rs. 200 or Rs. 400 in Habib Bank. The appellant also said that he had borrowed Rs. 4,000 from one Hussain. Moreoever, though the appellant was getting a rent of Rs. 210 from various persons to whom he had let out portions of the premises in question, he was not able to pay a nominal rent of Rs. 50 to the defendant. Under the terms of the agreement, the plaintiff was bound to pay a rent of Rs. 50 so long as the sale deed was not registered. This shows that the plaintiff was not financially well off. The learned Judge was right in his conclusion that the appellant was not in a position to meet his financial commitment so far as the payment of the balance of the sale consideration was concerned. Mr. Abbas Zia in support of his contention that his client had the capacity to pay the money relied on the fact that at the time when the arguments were going on his client was ready with the money to pay the balance of sale. consideration. The plaintiff no doubt had sufficient funds in September, 1955. When the arguments were being heard, and on being asked by the Court, the plaintiff stated that he had sufficient money to pay the balance of the sale considera tion and in fact he deposited the balance of sale consideration in Court. According to the terms of the contract, the stipulated period within which the sale deed should have been executed expired on 19th July, 1950. The balance of the sale consideration should have been available with the plaintiff in July 1950 or thereabout. The plaintiff may have done good business during the last five years and may have earned much more than the balance of sale consideration. The capacity to pay the balance of sale consideration cannot be considered apart from the time when the sale consideration was payable. In the present case, as we have already mentioned, the stipulated period of 18 months within which the sale deed should have been executed expired on 19th July, 1950. The plaintiff should be able to show that he had sufficient funds in July 1950 or near about to pay the balance of the sale consideration. It is true that time does not appear to be the essence of the contract between the parties. The plaintiff, therefore, even if he was not ready with the money in July, 1950, but if he had the balance of the sale consi deration when the defendant wrote the last letter on 4th September, 1950 stating that he had obtained the income tax certificate and the Custodian's certificate, could not be said to be guilty of breach of contract. The plaintiff should have been ready with the sale consideration within a reasonable time of the stipulated period when the contract should have been performed. The plaintiff's readiness to pay the balance of sale consideration in 1955 cannot be said to be within a reasonable time when the stipulated period for the performance of the construct expired in July, 1950. Moreover, it does not appear from the evidence led in the case and the conduct of the plaintiff that he intended to have the sale deed executed. In the ' first place, the plaintiff did not write to the defendant even after the expiry of the stipulated time to have the sale deed executed. If the plaintiff was at all keen to have the sale deed executed, he should have called upon the defendant to perform his part of the contract. Moreover, even when the defendant had carried out all that the plaintiff wanted, the plaintiff put further obstacles in the way of the performance of the contract. The plaintiff by his letter dated the 19th August, 1050 in reply to a letter of the defendant called upon the defendant to secure the income‑tax certificate and the Custodian's certificate. The defendant intimated the plaintiff on 4th September, 1950 that he has been able to get the requisite certificates and that the plaintiff should have the sale deed executed within 10 days from the‑receipt of the letter. The defendant clearly‑ mentioned in this letter that the plaintiff was short of funds and that he was putting unnecessary obstacles in order to avoid the payment of the balance of the sale consideration. The plaintiff did not do anything within the stipulated period of 10 days towards the execution of the sale deed. He however wrote to the defendant on the expiry of 10 days, on 16th September, 1950, calling upon him to send copies of the certificates. Before the receipt of this letter on 19th September, 1950, the defendant had already terminated the contract on 18th September, 1950. It is clear from these facts that the plaintiff was unnecessarily putting hitches in the way of the execution of the sale deed. The plaintiff in these circumstances cannot be said to have had any intention of getting the sale deed registered. The failure on the part of the defendant to send copies of the income‑tax and the Custodian's certificates, in our opinion, does not give any right to the plaintiff to avoid the execution of the sale deed. In the first place, the defendant had finally called upon the plaintiff to have the sale deed executed within 10 days of the, receipt of the letter dated the 4th September, 1950. If the plaintiff wanted any copies of the certificates of the Custodian and the income‑tax authority, he should have asked for the same within 10 days of the receipt of the letter dated the 4th September, 1950. There is nothing on the record to show that the letter of the 4th September 1950 was received by the plaintiff later than the 5th September. A letter posted at Karachi on the 4th could be delivered to the addressee at Karachi on the next day. We take it, as the plaintiff has not stated, that the letter did not reach him within the usual time that he received the letter on the 5th September, 1950. The defendant, as already mentioned, terminated the contract after the expiry of 10 days on 18th September, 1950. The question of sending the copies in these circumstances to the plaintiff did not arise. In the second place, the only documents which the buyer is entitled under section 55 of the Transfer of Property Act to call upon the seller to produce for his examination are documents of title relating to the property. Income‑tax clearance certificate or Custodian's certificate cannot be said to be documents of title relating to the property. The last contention of Mr. Abbas Zia was that the defendant could not by his unilateral act fix the time limit for the perfor mance of the contract, time being not the essence of the contract. In support of his contention the learned advocate for the appel lant relied on the case of Smith v. Hamilton (1950 All England Law Reports Volume II, 928). It was held in that case that "as time was not initially of the essence of the contract as regards completion it was impossible for the vendor unilaterally to make it so in the absence of some impropriety on the part of the purchaser sufficient to entitle him so to do. Mr. Abbas Zia contended that the defendant could not by his letter of the 4th September, 1950 fix the time limit for the performance of the contract. He contended that this was his unilateral act, Harman, J. in the case mentioned above relied on the observation of Fry, J. The relevant observation is as under: "You cannot make a new contract at the will of one of the contracting parties. There must have been such improper conduct on the part of the other as to justify the rescission of the contract sub modo, that is, if a reasonable, notice be not complied with. That this is the law appears to me abund antly plain." It is clear from the above observation that there can be circumst ances under which one of the contracting parties can fix the time for the performance of the contract. In this connection, we would reproduce the observations of their Lordships of the Privy Council in the case of Jamshed Khodaram Irani v. Burjorji Dhunjibhai (A I R 1915 P C 83). The relevant remark is as under: "Prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of Law the contract has not been literally performed by the plaintiff as regards the time limit specified. But equity will not assist where there has been undue delay on the part of one party to the contract, and the other has given him reasonable notice, that he must complete within a definite time." In the present case, we think that there had been undue delay in the performance of the contract. Moreoever the defendant bad fixed the time limit for the performance of the contract on 4th September 1950 to 10 days from the receipt of that letter. It is not the case of the plaintiff that he was willing to perform the contract within 10 days of the receipt of that letter or that the defendant rescinded the contract on 18th September, 1950 before the date of expiry as mentioned in the letter dated the 4th September 1950. In these circumstances we think that the defendant has given reasonable notice to the plaintiff that he should complete the sale deed. Mr. Abbas Zia did not raise any other point before us except what we have already considered. We would, for these reasons, dismiss the appeal. In the circumstances of this case we will not award cots. K. M. A. Appeal dismissed.