important point
In the sale of immoveable property, time is not the essence of the contract.

JUDGMENT

P. Sathasivam, J. —

1.Leave granted.

2.This appeal is directed against the judgment and order dated 11.01.2005 passed by the High Court of Judicature at Bombay in First Appeal No. 743 of 1993 in and by which the High Court set aside the decree for specific performance granted by the trial Court and consequently dismissed the suit of the plaintiffs.

3.Brief facts in a nutshell are:

The appellants/plaintiffs in special civil suit No. 320 of 1988 filed the same for specific performance of agreement dated 31.07.1985. According to the plaintiffs, the respondent herein/defendant is the owner of land Block No. 208 and Block No. 209 respectively admeasuring Area H. 0.60 R and H. 0.40 R of Village Nagaon in Hatkanangale Tahsil. The defendant had entered into an agreement for sale of the said lands to the plaintiffs for a consideration of Rs.85,000/- per acre. The agreement was reduced into writing and according to the terms of the agreement, the sale deed was to be executed by the defendant within a period of six months. It was agreed that possession of the lands was to be delivered at the time of execution of sale deed. The defendant has also undertaken the responsibility of obtaining necessary permission for sale of the lands, if required. On the date of execution of the agreement, an amount of Rs.20,000/- was paid by the plaintiffs to the defendant as earnest money and balance amount of the consideration was to be paid at the time of execution of the sale deed. The plaintiffs were always ready and willing to perform their part of the contract but the defendant avoided to receive the balance amount of consideration and neglected to execute the sale deed. The plaintiffs sent a legal notice on 16.07.1988 to the defendant through their advocate calling upon him to perform his part of the obligation under the contract. In spite of the notice, the defendant did not comply with the requirements which necessitated the plaintiffs to file the suit for specific performance or in the alternative refund of earnest money with interest thereon @ 15% per annum.

4.The defendant filed a written statement wherein he denied the plaintiffs claim. It was further stated that though agreement for sale of the suit lands was entered into between him and the plaintiffs on 31.07.1985, the sale deed was to be executed within a period of six months from the date of contract as he was in dire need of money for construction of his house and, therefore, the time was the essence of the contract. He had called upon the plaintiffs to pay the balance amount of consideration and get the sale deed executed. But the plaintiffs were not in a position to arrange the balance amount of consideration and complete the contract. As the market price of the agricultural lands have now gone up, the plaintiffs by purchasing the suit lands are intending to dispose of the same to others at a higher price. In view of the same, the plaintiffs are not entitled to discretionary relief of specific performance of contract.

5.The learned Civil Judge (Senior Division), on 23.02.1993, after finding that the defendant has failed to prove that time was the essence of contract and the plaintiffs were and are ready and willing to perform their part of contract decreed the suit as prayed for. Aggrieved by the aforesaid judgment of the trial Court, the defendant filed First Appeal No. 743 of 1993 before the High Court of Judicature at Bombay. The learned Single Judge of the High Court not in agreement with the conclusion of the trial Court and finding that plaintiffs failed to substantiate their plea allowed the appeal of the defendant and dismissed the suit. Questioning the judgment and order of the High Court, the plaintiffs have filed the present appeal by way of special leave. During the pendency of the appeal before this Court, Balasaheb Dayandeo Naik/first plaintiff died and his legal representatives were brought on record as per order dated 19.09.2006 in I.A. No. 3 of 2005.

6.We heard M