P. KODDANDA RAMAYYA, J.

( 1 ) THE defendant is the appellant. The suit is laid for specific Performance of agreement to sell dated 6-9-1976 executed by the defendant.

( 2 ) THE plaint averments are that under the agreement the house property was agreed to be sold for Rs. 30,000/- and on the date of agreement Rs. 5,000/- was paid and the balance is payable on 31-12-1976. But, however, the time is extended on 2-8-1977 till 1-9-1977 on which date an additional sum of Rs. 9,000/- was paid and the defendant was postponing the execution of the sale deed as he has not paid the instalments due to the building society and obtained the sale deed and he also kept quiet without giving any reply to the suit notice dated 3-7-1980 and hence the suit. The defence is that the time is the essence of the contract. In the first instance it was agreed that the amount should be paid by 31-12-1976 but it was extended with an endorsement on the suit agreement on 2-8-1977 extending the time till 1-9-1977, but even then the plaintiff committed default and the agreement was cancelled by notice dated 2-9-1977, Ex. B-4, but the time was however extended under Ex. B-8 notice issued by the defendant on 1-11-1977 till 1-12-1977 and hence the agreement stood cancelled and the plaintiff lost the opportunity to enforce the contract. The written statement was amended further on 28-12-1981 adding para. 3-A stating that the plaintiff is guilty of serious laches and deliberate and wilful default and abnormal rise in the market value of the price disentitle him to enforce the contract.

( 3 ) THIS is refuted by the plaintiff by filing a rejoinder. On this controversy the trial Court framed two issues apart from issue No. 3 relating to relief. But considering the evidence and on framing three separate points as found in para. 8, the trial Court held that the agreement is not void and unenforceable in view of the conditions of hire purchase agreement, and though time is made the essence of the contract the defendant has not avoided the contract as per law and hence the plaintiff is entitled to specific performance of the agreement to sell and directed him to pay the balance of the amount due under the agreement and decreed the suit. Against the said judgment and decree the present appeal is filed by the defendant.

( 4 ) SRI Parabrahma Sastry, the learned counsel for the appellant, though initially tried to argue on the question of enforceability of the agreement, ultimately concentrated on the sole question whether the Court below is right in holding that failure on the part of the defendant to issue separate notice for cancellation is fatal to the defence and consequently the suit agreement is enforceable. This is refuted by the learned counsel for the plaintiff Sri C. Poornaiah, contending that the time is not the essence of the contract and the finding to the contrary is incorrect and the notice issued under Ex. B-8 was not received by his client and in any view a separate notice of termination of the contract for non-compliance, Ex. B-8, extending the time till 1-9-1977 must be given, and failure to do so makes the contract enforceable. In support of his contention that a separate notice is necessary terminating the contract after making the time as essence of the contract, he relied on a judgment of this Court reported in Tandra Venkata Subrahmanyam v. Vegesana Viswanadharaj, AIR 1968 Andh Pra 190.

( 5 ) BEFORE considering the questions raised in the appeal I must notice some of the findings given by the Court below. The trial Court held that the time is made the essence of the contract but failure to terminate the contract after issuing a separate notice is fatal and the agreement continues to be enforceable. On this question the Court below held that notice Ex. B-4, though wrongly addressed to the plaintiff as Ammayamma when her name is Chellayamma, it must have been received by the plaintiff and the denial of the plaintiff cannot be accepted as the plaintiff is

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