2008 PLP 464 (YLR)

MUNIB AHMAD KHAN, J.

According to the plaintiff. Defendant No.2 acting as attorney of defendant No.1 entered into a Sale Agreement, dated 11-2-2003 with the plaintiff for sale of Flat No.103, 3rd Floor, measuring 200 square yards (with whole plots full roof located on fourth floor) constructed on plot bearing No.18-C, 26th Street. Tauheed Commercial Area, Phase V. Defence flowing Society, Karachi (hereinafter referred to as said flat) for a lump sum sale consideration of Rs.20,00,

000. The plaintiff paid a sum of Rs.2,00,000 at the time of execution of Agreement and subsequently an amount of Rs.3,00,000 was paid in terms of the Agreement, while, balance amount of Rs.15,00,000 was to be paid on 15th March, 2003 on the execution of sale deed before the Sub-Registrar. It has further been submitted that the plaintiff, to abide by the terms and conditions of Sale Agreement, applied for loan to the Citibank, which was approved on 29-1-2003 and in obtaining the said loan, the plaintiff has incurred substantial expenses amounting to Rs.60,

183. He has stated that he is occupying a rented premises and the said flat was purchased with the intention to shift his family and with 'the hope that sale agreement will be finalized on time. The plaintiff intimated his landlord that he will be vacating the rented premises by 15th March, 2003. In pursuance to the sale agreement, the plaintiff requested defendant No.2, to accept balance amount of Rs.15,00,000 but it was tolerated by him and on insistence from the plaintiff the defendant No.2 threatened him with dire consequences. In the circumstances, the plaintiff got a Legal Notice, dated 8-3-2003 issued to defendant No.1. It has been pointed out in the legal notice that according to paragraph No.14 of Sale Agreement, the defendants, in case of failure on his part to execute sub-lease has to return double the amount what has been received by him. The plaintiff has stated that due to delay in execution of sub-lease by the defendants, the plaintiff is suffering a lot, as he has already incurred expenses towards obtaining loan from Citibank and is paying Rs.10,000 per month to the landlord as he is living in a rented premises. The plaintiff besides, specific performance of the agreement, has also claimed compensation in the sum of Rs.10,00,000 and Rs.5,00,000 for violation. He has assessed a total sum of Rs.16,80,183 to be paid by the defendants to him and since the defendants were threatening the plaintiff, therefore, a complaint with the S.H.O. Clifton Police Station was lodged and on 27-3-2003 a complaint was lodged with the Senior Superintended of Police, which was repeated to other concern authorities. Through the suit, the plaintiff has claimed relief in the shape of directions of the defendants to perform his obligation under the agreement, dated 11-2-2'003 by accepting balance amount of Rs.15,00,000 and on defendants failure, the Nazir may be appointed to do the needful and a sum of Rs.16,80,183 has also been claimed towards compensation. On the other hand, defendants Nos.1 and 2 have filed their written statement whereby they have taken preliminary Objection to non-maintainability of the suit and that the plaintiff was never in a position to pay outstanding amount of Rs.15,00,000 by or before agreed date. On merit; the defendants have submitted that it was condition precedent that Rs.15,00,000 was to be paid prior to the execution of sublease and since the said amount was never offered, therefore, question of execution of sublease does not arise. In the circumstances, the plaintiff failed to perform his part of contract as neither he offered nor sent the said amount with his legal notice while the correct position is that the plaintiff never approached the defendants for payment of the balance amount and since the plaintiff himself was at fault therefore, penal cause of agreement cannot be invoked against the defendants. The defendants were ready to perform their obligation but the plaintiff failed to respond in terms of the agreement, therefore, the agreement stands revoked and paid money was forfeited. Out of the pleadings, the following issues were framed:

(1) Whether the present suit filed is maintainable in law or on facts disclosed in the pleadings of the parties? (2) Whether the plaintiff has paid the balance amount of consideration on or before the specified date? If no, what is the effect? (3) Whether the defendants intentionally and deliberately avoided to receive and accept the balance amount of Rs.15,00,000? (4) What was, at the relevant time the actual market value of the property in suit? (5) Whether in view of the facts disclosed in the written statement, the payment of the balance on the specified dates was the essence of the contract? If so, what is the effect on non-payment of balance consideration on the specified date? (6) Whether the defendants are entitled to forfeit the earnest money in terms of clause 13 of the agreement for reasons of non-payment of balance consideration in terms of the agreement? (7) Whether the plaintiff is entitled to the specific performance? (8) Whether the plaintiff paid three instalments of loan of Rs.60,183 to the Citibank, if so what is the effect? (9) What should the decree be? The matter came up for evidence and after some adjournments plaintiffs filed affidavit-in-evidence and produced certain documents, which were exhibited as Exhs.5/1 to 5/20 on 20-12-2005 while none was present for defendants, therefore, no cross-examination of the plaintiff was conducted. On subsequent dates, the defendants and his counsel failed to appear, therefore, their side was closed and the case came up for arguments but despite intimation notice, ordered on 22-8-2006 none for the defendants appeared, therefore, arguments of Mr. Amin Lakhani, learned counsel for the plaintiff, were heard, who argued that in the given circumstances, the suit may be decreed and plaintiff be delivered possession of the suit property, while he is ready to deposit balance amount of Rs.15,00,000 with the Nazir. From the record it has been observed that the plaintiff has examined himself and produced Exhs.5/1 to 5/20 through affidavit in evidence. He repeated contents of the plaint. The defendant failed to appear, therefore, there was no cross-examination, as such there was no rebuttal to the statement of the plaintiff. The matter came on subsequent dates but defendants neither filed an affidavit-in-evidence nor appeared, therefore, on 23-5-2006 side of the defendants was closed and the matter was fixed -for arguments. On 22-8-2006 when the case was fixed for final agreements, intimation notices were again directed to the defendants but none appeared and finally on 18-11-2006 arguments were heard. In the instant matter the plaintiff's version is supported through his evidence while the defendants failed to appear. In the circumstances, when signatory to written statement failed to appear then even written statement cannot be exhibited and there is no rebuttal to the plaintiff's version. In the circumstances; the suit of the plaintiff is decreed to the extent that defendants should specifically perform agreement to sell, dated 11th February, 2003 and execute proper conveyance deed in favour of the 1 plaintiff while the plaintiff is directed to deposit Rs.15,00,000 with the Nazir in two weeks. In case, the defendants fail to perform their part of obligation within a period of one month then Nazir to execute required conveyance 'deed at the expenses of plaintiff in his favour and in consequence thereto, to take possession of the subject property and hand over it to the plaintiff. Nazir fee of Rs.10,000 is to be paid by the plaintiff. H.B.T./A-132/K Suit decreed.