2007 PLP 1853 (CLC)

MUSHIR ALAM, J.

This application under Order XXXIX, rules 1 and 2, C.P.C. has been filed by the plaintiff (purchaser) seeking restraining orders in respect of the property bearing No.1/15-A/1, Block-22, measuring 1744 Sq. yards situated at K.D.A. Scheme No.6, F.B. Area, Karachi till the pendency of present suit. It is asserted that the defendants (seller) failed to fulfil and perform the .agreement in terms of clause (2) thereof. According to the learned counsel, defendant railed to produce the N.O.C. necessary for the purpose of selling the property, therefore, the breach, if any, is on the part of the defendant. Learned counsel for the defendant dispute such fact. According to him all the documents were ready but the plaintiff had not come forward to get the sale-deed executed. He further asserts that legal notice was served on plaintiff calling upon him to pay the balance consideration. Learned counsel for the defendant has drawn my attention to N.O.C. in respect of the suit plot dated 30-3-2004, according to him same was very much there even prior to filing of suit, which was filed on 22-4-2004. Learned counsel has also drawn my attention to legal notice Annexure "A/7" to Suit No.368 of 2004 wherein even the plaintiff was required to make the payment but not later than 13-4-2004. It seems that the plaintiff did not avail of such opportunity and instead claimed that he has been handed over the possession on payment of a sum of Rs.5,00,

000. I have examined the record, it appears that on filing of the .suit ad interim orders were passed on 23-4-2004 subject to deposit of balance consideration. On the motion of plaintiff who claimed that the amount is considerable and since plaintiff asserted that in case, the defendant comes forward to execute the conveyance balance amount could be deposited, he was allowed to furnish security equivalent to balance consideration and such security appears to have been furnished. No matter is being contested. From the record it appears that the agreement was executed between the parties on 23-1-2004 for a total, sale consideration of Rs. 1,06,00,000 (one crore six lacs). It appears that only a sum of Rs.5,30,000 was paid through pay-order, dated 27-1-2004 balance amount of Rs. 1,00,70,000 (one crore seventy thousand) was to be paid at the time of registration of the sale-deed in favour of the plaintiff or his nominee upto 60 days from the date of agreement. In para.2 it was asserted that the property is free from all sorts of liens, claims, charges and encumbrances and vendor shall provide N.O.C. for sale from K.D.A. of the said property. It appears that in terms of clause (6) "time was made essence of the contract" admittedly the amount of Rs.1,00,70,000 has not been paid nor there is anything on record to show that plaintiff had the balance amount to make the payment. Receipt of legal notice dated 7-4-2004 calling upon the plaintiff to pay balance amount is not disputed. Defendant claimed that the defendant has handed over possession on receipt of further sum of Rs.5,00,000 such plea does not :appeal to mind as to why the possession of valuable property could be handed over on receipt of meagre amount as against a total consideration of rupees over one crore. It is common knowledge that value of property in Karachi is multiplying day and night. Plaintiff cannot be allowed to freeze the valuable property of defendant against a meagre sum for indefinite period. Under circumstances, I do not see any justification to confirm ad interim orders, balance of convenience does not lean in favour of the plaintiff. I am not incluied to exercise equitable discretion in favour of plaintiff, application is dismissed the security stand discharged. 2 and

3. In view of the orders at C.M.A. No.2607 of 2004 listed applications have become infruetuous and accordingly dismissed. Since injunction application in Suit No.421 of 2004 has since been dismissed, consequently C.M.A. No.2417 of 2004 in Suit No.368 of 2004 is allowed. S.A.K./M-132/K Order accordingly.