TMI Blog1977 (1) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... irement of the premises was not genuine. On the mediation of Sri Chand Doneria, the parties entered into the suit agreement on 24th March, 1964. In pursuance of the agreement the appellant handed over ₹ 4,000 as earnest money to the respondents. The terms of the agreement will be set out in due course but suffice it at this stage to state that it provided that the appellant should get the sale deed executed within two months i. e. upto 24th May, 1964 and in case the appellant did not get the sale registered within two months the earnest money of ₹ 4,000 shall stand forfeited. From the 5th May, 1964 letters and telegrams were exchanged between the parties but the sale deed was not executed on or before the 24th or on the 25th May as the parties had agreed. The appellant filed a suit, Civil Suit No. 122 of 1964, in the Court of Civil Judge, Agra, on 2nd September, 1964 alleging that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement but the respondents failed to execute the sale deed as agreed and therefore committed breach of the contract. The plaintiff prayed for a decree of spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, Counter notices and telegrams they expressed their intention to treat time as of the essence of the contract and that once the time is held to be the essence of the contract the appellant's suit for specific performance must fail. The High Court also held that even if time is not held to be of the essence of the contract it was of the opinion that the appellant is not entitled to a decree for specific performance as he had failed to prove that he was ready to perform his part of the contract. 3. The appellant applied for a certificate and the High Court by its order dated 22nd February, 1971 granted the certificate under Clause (a) of Article 133(1) of the Constitution. 4. In this appeal before us the learned Counsel for the appellant submitted that the High Court was in error in holding that the time was of the essence of the contract and that the High Court's finding that the appellant was not ready and willing to perform his part of the contract while the respondents were always ready to perform their part of the contract is opposed to oral and documentary evidence and the probabilities of the case. 5. The first question that arises for consideration is whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been made between you and me through this letter, you too have affixed your signature on this letter. Yours. Signature of Hari Dutt Shastri 24-3-1964 Signature of Bhavbhooti Sharma 24-3-64 x x x The relevant Clause is Clause 4 which provides that the appellant must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case the appellant did not get the sale deed registered within two months then the earnest money amounting to ₹ 4000 paid by the appellant shall stand forfeited without serving any notice. The Clause further provides that in case the respondents in some way evade the execution of the sale deed then the appellant will be entitled to compel them to execute the sale deed legally and the respondents shall be liable to pay the costs and damages incurred by the appellant. It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of Immovable property it will normally be presumed that the time is not the essence of the contract. Vide Gomathinayagam Pillai v. Palaniswami Nadar [1967 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed. On taking into account the circumstances of the case and the conduct of the parties of serving on each other notices, Counter notices and telegrams the High Court inferred an intention on the part of the parties to treat the time as of essence of the contract. We will refer to the terms of the contract and the correspondence between the parties in due Course but at this stage it is sufficient to state that neither the terms of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract. In fact, according to the agreement the sale deed ought to have been executed by the 24th May but it is the admitted case that both the parties consented to have the document registered on the 25th May. On the question whether the time is of the essence of the contract or not we are satisfied that the High Court was in error in allowing the respondents to raise this question in the absence of specific pleadings or issues raised before the trial Court and when the case of time being the essence of the contract was not put forward by the respondents in the trial Court. Apart from the absence of pleadings we do not find any basis for the ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. According to the appellant no reply was received to this letter and he sent a notice through his advocate, Ex. 35, on 13th May, 1964 in which he stated that he was ready to pay the balance of the consideration of ₹ 24,000/- along with the entire arrears of rent and requested the respondents to execute the sale deed by 18th May and latest by 24th May, 1964. The lawyer's notice also referred to the latter of the 5th May, Another lawyer's notice was sent, Ex. 36. on 20th May, 1964 by registered post complaining that the respondents had not replied to his letter dated 5th May, 1964 and to his law-year's notice dated 13th May. 1964 and called upon them to get the sale deed registered by 25th May, 1964 as 24th May is Sunday. Along with the lawyer's notice a draft sale deed was endorsed. These three letters were followed by telegrams Which were sent by the appellant to both the respondents on 20th May, 1964, Ex. 30. On the 22nd May the appellant attended the office of the Sub-Registrar, Agra and presented an application to the Registrar to the effect that he was at the Registrar's office between the hours 3 and 4 p. m. on that day. On 22nd May, 1964 the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they had basis for suspecting that the respondents were not willing to perform their part of the contract. 9. A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrar's office on 25th May, 1964. It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub-Registrar to prove their presence. Though both the parties would assert their presence it is common ground that they did not meet each other. It is difficult for us to comprehend as to how if both the parties were present at the Sub-Registrar's office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation. But on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed he having paid ₹ 4000/- as the earnest money and living in the premises for over 25 years. It is not necessary for us to refer to, the subsequent letters and telegrams exchanged between the parties as that would not alter the position in any event. 10. On a conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad money with him. The court does not suspect that he did not have ₹ 20,500/-. The shortage at the most is of ₹ 2,000/- and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable. Further the appellant examined Kailash Nath, P.W. 2, of Mrs. Chittar Mal Ram Dayal who stated that a sum of ₹ 30,000/- belonging to the appellant was lying in deposit with them. We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed. The High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for execution of the sale deed. In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed. In fact the respondents set up a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the stipulated time. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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