2000 PLP 1055 (SCMR)

SH. RIAZ AHMED, J.

Leave to appeal is sought against the judgment dated 23-10-1998 delivered by a learned Judge of the Lahore High Court whereby regular second appeal preferred by the petitioners against the judgment and decree of the Civil Judge affirmed by the Appellate Court was

2. The facts in brief are that respondent Mirza Muhammad Anwar Beg instituted a suit to enforce an agreement to sell dated 2-9-1977 in respect of land measuring 5 Kanals and 4 Marlas. It was averred in the plaint that the petitioners-defendants had agreed to sell the land in favour of the respondent -plaintiff in consideration of Rs.1,71,600 and had received Rs.30,000 as earnest money. It was also pleaded that additional payments were also made from time to time during the stipulated period, which was to expire on 31-12-1978. According to the respondent-plaintiff despite the consideration amount having been paid, the petitioners-defendants were not executing the sale deed. According to the plaintiff, a notice, dated 28-12-1978 was also served upon the petitioners-defendants, but they did not respond, and therefore, the respondent-plaintiff was constrained to institute the suit. It was also averred that besides payment of earnest money of Rs.35,000, payment of amounts of Rs.7,000, Rs.5,000, Rs.18,500 Rs.20,000 and Rs.40,000 were made through cheques and payment of Rs.24,587 was made through cheque of US$ 2,500 whereas amount of Rs.27,025 was sent through money order.

3. The suit was resisted on the ground that the time was essence of the contract and the plaintiff-respondent had failed to perform his obligation within the stipulated time, and therefore, the relief of specific performance could not be granted to the plaintiff-respondent in equitable jurisdiction. The petitioners-defendants admitted the payment of earnest money, but in respect of other payments it was pleaded that the same had been made after the expiry of the stipulated period, i.e., 18-1-1979, and therefore, the agreement could not be specifically enforced. The payment of Rs.20,000 was denied: In respect of the cheque for Rs.40,000 it was claimed that the same was not encashed by the bank and as far as money order for amount of Rs.27,025 was concerned, it was pleaded that the same was not received because the same had been sent after the expiry of the stipulated period. In a nutshell, it was pleaded that since the money was not paid within the stipulated period, therefore, the suit was liable to be dismissed.

4. The learned Civil Judge vide judgment dated 10-12-1981 decreed the suit and an appeal taken against the said judgment and decree failed vide orders dated 7-5-1987 delivered by the Additional District Judge, Sialkot. The petitioners-defendants then preferred a regular second appeal in the High Court, which was dismissed vide order impugned.

5. As in the Courts below, it was urged before us that time was essence of the contract and the money had not been paid within the stipulated period, therefore, the respondent was not entitled to a decree for specific performance. The payment of Rs.20,000 through cheque was denied acid in respect of the payment in US$ 2,500 it was alleged that the same was encashed on 17-1-1979 after the expiry of the. stipulated period, and therefore, it would not be deemed to be a valid payment within the meaning of the agreement. The perusal of the judgments of the Courts below and the evidence as appreciated reveals that P.W.13 ,admitted tender of Rs.20,000 through cheque. Reference to document Exh. D.13 revealed that there was no dispute as to the tender of this amount. In respect of cheque for Rs.40,000 the bank had not refused the payment, but required the notice of 7 days. W e have noticed that this amount could have encashed within the stipulated period because the notice period of 7 days was to expire before the stipulated period. The tender of the money order was also admitted. The balance amount of Rs.86,513 was deposited by the respondent in pursuance of the orders of the Court. It is also worth mentioning that payments of Rs.7,000, Rs.5,000, . Rs.18,500 and Rs.24,587 were admittedly made through cheques before the stipulated period. As far as Rs.24,587, the amount of the US$ cheque is concerned, it also stood proved on the record that the cheque was given to the petitioners before the stipulated date, which was deposited in the account and after completing the process, the payment was credited in the account of the petitioners. We are of the view that the High Court had rightly held that crediting the account of the petitioner with this amount after the stipulated period does not at all affect the merits of the case inasmuch as the cheque had been given before the stipulated period and obviously some time is taken during the process of the bank for debit and credit of the account.

6. With regard to the payment of Rs.23,000 through cheque it was admitted by Inayatullah Khan, one of the petitioners in cross-examination that he inquired from the bank and he was informed that the money was lying in the bank. The letter Exh. D13 was admitted by him. As far the cheque for Rs.40,000, it was admittedly given to the petitioners before the stipulated period. The certificate of the bank, however, made it clear that the payment could not be made for want of 7 days' notice. The petitioner had sufficient time to encash it before the expiry of the stipulated period by giving 7 days' notice. The dispatch of Rs.23,025 through money order was also admitted by the petitioner, but the same was refused to be accepted on the plea that it was sent after the expiry of the stipulated period.

7. The perusal of the record and the judgments reveals that the respondent-plaintiff had rightly performed his obligation within the stipulated period. The receipt of US$ cheque within the stipulated period was also accepted by the petitioners and it was not returned on the ground that the account had been credited after the stipulated period. No notice was sent by the petitioners informing the respondent that the cheque for Rs.40,000 was encashed nor any other notice was given for forfeiting the amount received or rescinding the contract. It is, thus, obvious that by their own conduct the petitioners did not- treat the stipulation as to the time being the essence of the contract. On the there hand, the respondent remained ready and willing to perform his part of the contract and did take steps for performance of the obligation by remitting the amounts from time to time and also sent notices calling upon the petitioners to perform their part of the contract. 8.. For the foregoing reasons, we do not find any merit to interfere with the concurrent findings arrived at by the Courts below and upheld by the High Court. Resultantly, the petition is dismissed and leave to appeal is I.A.K./I-2/S Petition dismissed.