P L D 1963 (W (PLP)

Although this document has euphemistically been referred to as an agreement, in actual fact it is contained in a letter addressed by the appellant Haji Sattar to the respondent Allah Rakhya Dhanji. Somehow, this balance of Rs. 18,000 was not paid by the respondent to the appellant within the stipulated period of six months. It is the case of the respondent‑plaintiff that the appellant delayed in establishing his title to this property inasmuch as the property in question was evacuee property the original Hindu owner Seth Bhulchand having migrated to India. It is further the case of the respondent‑plaintiff that he was always ready and willing to pay the balance due from him to the appellant‑defendant but the latter refused to accept a cheque for Rs. 8,000 that was offered to him on 5‑12‑1949. On 9‑12‑1949 a legal notice was served on behalf of the respondent/plaintiff on Mr. Saleh Muhammad Ganji the appellant's broker with a copy to the appellant reciting the above facts, the offer of a cheque for Rs. 8,000 on 5‑12‑1949 and repeating that the respondent‑plaintiff was ready and willing to pay the full balance due from him at the time of the registration of the sale‑deed and that he had actually deposited this sum of money in the Canara Bank Limited, Karachi, for payment to the appellant at the time of the execution of the sale‑deed. The appellant through his lawyer replied on 12‑12‑1949 to this notice of the respondent merely saying that inasmuch as the respondent had failed to pay the total amount of the purchase price within the stipulated period of six months ending 12‑12‑1949, the contract had been cancelled by him and the earnest money deposited had been forfeited by him. Further correspondence then ensued between the two parties and on 13‑8‑1951 the respondent‑plaintiff filed this suit against the appellant‑defendant for specific performance of the contract for sale of the said immovable property and in the alternative for compensation and damages amounting to Rs. 17,000.

3. A lengthy written statement was filed on behalf of the appellant‑defendant resisting the claim of the respondent, emphasizing that, according to the agreement Exh. 3, the balance of Rs. 18,000 had to be paid by the respondent within six months expiring on 12‑12‑1949 and stating that inasmuch as this essential clause in the contract had not been complied with and as time was of the essence of the contract, the appellant had no other alternative but to cancel the contract and to forfeit the earnest money. On these pleadings a large number of issues were raised in the trial Court and, as mentioned above, in the final result the trial Court came to the conclusion that the respondent /plaintiff had proved his case and it accordingly decreed the suit in his favour granting his specific performance with an order that the defendant‑appellant do execute a sale‑deed in his favour and register it accordingly. The present appeal is from this judgment of the Court below.

4. Appearing on behalf of the appellant Mr. Ramchandani raised only two main contentions. He contended that, in the first place, time was of the essence of the contract and inasmuch as a period of six months had been fixed and agreed upon by the two parties within which the balance of Rs. 18,000 had to be paid and this had not been done, the appellant had every right to cancel the contract and to forfeit the earnest money deposited with him by the respondent. Secondly, Mr. Ramchandani argued that the delay of twenty months on the part of the respondent /appellant from 12‑12‑1949 to 13‑8‑1951 in filing this suit disentitles him to the relief claimed by him.

5. Developing his first argument the learned counsel for the appellant referred us to the sale‑deed Exh. 21 dated 19‑2‑1949 whereby his client had purchased the property in question from the Hindu Seth Bulchand Chandiram for the sum of Rs. 21,

000. He contended that the appellant on finding that the respondent was in occupation of these premises and was not prepared to vacate, he (the appellant) was reluctant to waste the sum of Rs. 20,000 and so in order to get it back quickly he agreed to sell this property to the respondent‑plaintiff at the price of Rs. 20,000 only thereby sacrificing the sum of Rs. 1,000 and accepted from him an advance deposit of Rs. 2,000 on the distinct understanding that the balance of Rs. 18,000 was to be paid within six months' i.e., on or before 12‑12‑1949. Mr. Ram chandani further pointed out that six months' time had been given in this agreement as against the customary period of two months, and he maintained that this was done precisely for the purpose of making time the essence of the contract. The further conduct of the appellant in sacrificing the sum of Rs. 1,000 and also in giving up the amount of stamp duty and other expenses he had incurred when purchasing this property clearly indicated that he was doing all this because he wished to recover the balance of Rs. 18,000 from the respondent‑plaintiff within the stipulated period of six months and that therefore this period of time was an essential ingredient to the fulfillment or perfor mance of the contract.

6. Replying to this first argument of the learned counsel appearing on behalf of the appellant, Mr. Khoja, the Advocate of the respondent, pointed out that at the time when the appellant entered into this contract with his client namely on 12‑6‑1949 the appellant had then no document or sale‑deed in his possession evidencing his title to this property. He drew our attention to the sale‑deed Exh. 21 relied upon by the learned counsel of the appellant and showed us that although it is dated 19‑2‑1949, it was not executed till 29‑10‑1949. Moreover, from this sale‑deed it is not clear whether the appellant by 12‑6‑1949 had actually paid the full amount of Rs. 20,000 to the Hindu vendor Seth Bulchand Chandiram. Mr. Khoja further pointed out that this property obviously was evacuee property and consequently his client could not be expected to pay the full amount of the purchase price unless and until he was assured that the appellant had a good and marketable title to convey to him. Ordinance X v III of 1948 known as the Protection and Care of Properties of Evacuees from Pakistan Ordinance was promulgated in the previous year 1948 and in accordance with section 12 of this Ordinance it was essential for the appellant to obtain confirmation of the sale made to him by the Evacuee Hindu vendor. In these circumstances, then, Mr. Khoja contended that his client was in no way to blame for failing to pay the balance of the purchase price by 12‑12‑1949 and added that the money was at all times with his client who had deposited the sum in the Canara Bank and was only waiting for the appellant to complete his title to the property before paying up the balance and completing the execution of the sale‑deed.

7. We have devoted much time to the hearing of this appeal and we have given due attention to the long arguments urged before us by respective counsel. We have also closely perused the massive record reading all the correspondence exchanged between the parties and the evidence led by them in Court. On the dimensions assumed by this case in the trial Court it became necessary to strike no less than fifteen issues but in the hearing of this appeal the attention of both counsel was confined to the central point in this matter namely whether time was or was not of the essence of the contract entered into between the two parties on 12‑6‑1949. It seems to us that the fate of this whole appeal will turn upon the answer to this one question. Having applied our minds to the facts of this case, the arguments urged before us and the case‑law cited particularly the ruling of the Privy Council in the case of Jamshed v. Burjorji (A I R 1915 PC 83) we have reached the conclusion that under no circumstances can it be held that time was of the essence of this particular contract entered into between the appellant and the respondent. We are aware of the legal position that in contracts other than commercial contracts if time is to be of the essence of the contract it is eminently necessary that such a stipulation should expressly be contained in the language of the contract. In this particular case the only reference to the time factor is the one sentence appearing in Exh. 3, namely ; "The balance of Rs. 18,000 is to be paid within six months." It is nowhere mentioned either in the pleadings or in the evidence of the appellant Haji Abdul Sattar that he was sacrificing the sum of Rs. 1,000 from the sum alleged to have been paid by him to the evacuee Hindu for purchasing this property in order to be able to get back his money quickly. Nor is there any reference in either the pleadings or the deposition of the appellant to the effect that he was foregoing the amount of money paid by him on stamps and other expenses in connection with the execution of the sale‑deed Exh. 21 in this case. These considerations quite obviously owe their origin to the ingenuity of the learned counsel appearing on behalf of the appellant and not to the appellant himself and that is why they appear for the first time in the arguments of this learned counsel. Indeed, it seems to us that since the sale‑deed Exh. 21 was only executed by the vendor Diwan Bulchand Chandiram on 29‑10‑1949 it would appear as though he received the full balance of the purchase price at or about that time. No doubt the endorsement mentions that a Cheque No. 511626 for Rs. 20,000 only was paid to the executant by Haji Sattar Haji Muhammad before the undersigned Sub Registrar yet the date of this cheque is not disclosed. In any event, it would show that on 12‑6‑1949 some four months earlier when the appellant entered into his agreement of sale with the respondent, he had certainly not by then parted . with the full sum of Rs. 20,000 paid by him for the purchase of this property. The appellant then on the strength of the very documents produced by him having suffered no financial loss on 12‑6‑1949, the argument that he was anxious to get back his money as quickly as possible, and, therefore, the period of six months was mentioned in this agreement falls to the ground. We have, therefore, no hesitation in holding that time was not of the essence of the contract entered into between the appellant and the respondent and that the respondent was only waiting for the appellant to acquire a full, valid, legal and marketable title to this property before he paid the balance of the purchase price to him.

8. With regard to the second contention of the learned counsel appearing on behalf of the appellant that the delay of twenty months from 12‑12‑1949 to 13‑8‑1951 in the filing of this suit disentitles the respondent‑plaintiff to any relief, it is only necessary to point out that the respondent is in no way to blame for this delay, if any, in filing his suit. The letter Exh. 4 addressed by the respondent to the appellant on 9‑12‑1949 shows that the respondent was on his toes waiting for the appellant to complete his title to the property and thereafter register his sale‑deed and receive the balance of his purchase money. The property in question being evacuee property the purchase of it by the appellant from an evacuee Hindu had under the Evacuee Law to be confirmed and this was only done on 24‑4‑1950. Under Article 113 of the Limitation Act the time limit mentioned there for the filing of a suit for specific performance of a contract is three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance C is refused. In this particular case both these dates happen tot fall on the same day, namely 12‑12‑1949 and the period of, limitation of three years would accordingly commence to run as from that day. In this view, then, this suit is well within time. Mr. Khoja also invited our attention to a ruling reported in the case of Begraj v. Alisher (A I R 1923 Sind 50) where it was held by Raymond,1 A. J. C. that "It appears to me that to operate as a bar to relief, delay must be of a such character as either to prejudice the defendant or lead him to the belief that the plaintiff has waived his rights. In the present case it is not even alleged much less proved that the delay in the institution of legal proceedings to enforce specific performance, even if it be termed delay, was such as prejudiced the defen dant No. 1 or conveyed to him the impression that the plaintiff had abandoned his rights." It seems to us that we could equally apply this same passage to the facts of the present case. In our opinion, there is no sub stance in this second contention of the learned counsel appearing on behalf of the appellant.

9. In the result, therefore, this appeal stands dismissed and the judgment and decree of the trial Court upheld and confirmed. A. H. Appeal dismissed.