981/2009 Suit FIDA ALI SAWANI & ORS. (Plaintiff) V/S KHAN MUHAMMAD & ORS. (Defendant)
Sindh High Court
Bench: Hon'ble Mr. Justice Nazar Akbar
Order Date: 28-MAR-14
Civil Procedure Code (V of 1908)--- ----O. VII, R. 11---Specific Relief Act (I of 1877), Ss.2 & 12---Contract Act (IX of 1872), S.10---Transfer of Property Act (IV of 1882), S.52---Time bound agreement to sell---Application for rejection of plaint on the grounds of limitation, lack of cause of action, and existence of arbitration clause in the agreement to the effect that in case of any dispute between the parties, the matter shall be resolved through the Shia Ismaili Conciliation and Arbitration Board of Karachi---Validity---Plaintiffs never sent any legal notice in writing to the defendants nor took any steps pursuant to the agreement to show their own bona fides in getting the property transferred in their names---Plaintiffs themselves had filed a letter dated 20-10-2008 issued from the defendants' side asking the plaintiffs to complete the deal within 15 days time---Plaintiffs had never come forward to complete the deal nor did the plaintiffs get the lease of the plot renewed at their cost as agreed in the agreement---Defendants sent another notice to complete the deal, but the plaintiffs did not pay any sale consideration---Plaintiffs filed a suit for specific performance without offering to deposit balance sale consideration in Court---In a suit for specific performance, it was the buyer and not the seller who had to show by positive conduct that he had approached the seller to complete the deal and the buyer was ready and willing to perform his part of the contract and on refusal from the seller, the buyer could file a suit for specific performance---Defendants had not refused to execute documents, hence, no cause of action had accrued to the plaintiffs---Plaint was silent about the date on which plaintiffs offered to tender sale consideration and demanded transfer of suit property---Plaintiffs had not offered to tender the sale consideration through the Court---On account of plaintiffs' failure to offer/tender sale consideration to the defendants on specific date and time and then demand transfer of suit property, the plaintiffs could not assert that the defendants had refused to perform their part of the contract and a cause of action had accrued to them---Application for rejection of plaint was allowed, in circumstances.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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