JUDGMENT :- The plaintiff in O.S. No.92 of 1984, in the Court of District Munsif, Chintalapudi, is the appellant. He filed the suit against the respondent, for the relief of specific performance of an agreement of sale, dated 9.7.1981. Under the agreement, the respondent agreed to sell three different extents of land, admeasuring about Acs.9-00, for a consideration of Rs.9,000/-. On the date of agreement, a sum of Rs.3,500/- was paid as advance. Out of the balance, Rs.5,000/- was to be paid to the Co-operative Agricultural Development Bank, Chintalapudi, (for short "the Bank"), to liquidate the loan borrowed by the respondent, and Rs.500/- was to be paid, on or before 10.10.1981.

2. The appellant pleaded that the possession of the property was delivered under the agreement, and that he spent considerable amount, to bring it under the cultivation as well as, to put the fencing. It was also his case that ever since the date of agreement, he made number of attempts to remit the amount with the Bank and to pay Rs.500/- to the respondent, but due to non-co-operation, on the part of the Bank and the respondent, his attempts could not fructify. Reference was made to a registered notice, got issued through his Advocate on 25.10.1983, and a reply dated 29.10.1983. He expressed his readiness and willingness to perform his part of the contract. According to him, time was not the essence of the contract.

3. The respondent filed a written statement, denying the allegations of the appellant. He pleaded that the very purpose of offering the land for sale, was to clear the debts payable to the Bank and other agencies, and having paid an advance of Rs.3,000/-, the appellant did not pay any amount, in spite of repeated demands. It was alleged that the matter was taken before the mediators in September 1982, and though the appellant undertook to pay the balance amount within 15 days, he did not make any payment. Respondent has also stated that he was compelled to transfer the properties of his close relatives, to discharge the liability towards the Bank. Another contention advanced on behalf of the respondent was that one of the items agreed to be sold, was an assigned land and is not capable of being transferred. He pleaded that time was the essence of the contract, and the appellant lost his right to seek specific performance of the same. It was contended that the appellant did not have means to pay the balance of consideration, and ultimately, it was prayed that the suit be dismissed.

4. Through a judgment, dated 11.8.1986, the trial Court decreed the suit. Respondent filed A.S. No.78 of 1996, in the Court of Additional District Judge, West Godavari at Eluru. The appeal was allowed on 7.2.1995. Hence, the second appeal.

5. Sri M V. Suresh, learned Counsel for the appellant, submits that time was not the essence of the contract, and there was no basis for the lower appellate Court, to take a different view. Placing reliance upon certain precedents, the learned Counsel submits that in an agreement of sale, involving an immovable property, the time can never be treated as essence of the contract, unless there is a clear stipulation to the contrary. He submits that the appellant made many attempts to remit the amount of Rs.5,000/- with the Bank, but on account of the instructions issued by the respondent, the Bank did not furnish the particulars and for that reason, the amount could not be deposited.

6. Sri M. Krishna Mohan Rao, learned Counsel for the respondent, on the other hand, submits that almost out of distress and acute indebtedness, the respondent offered to sell the property, and the same is evident from the recitals in the agreement of sale. He submits that the very fact that a substantial portion of the sale consideration was required to be remitted to the Bank, discloses the dire necessity of the respondent, and despite the same, the appellant did not honour his commitment. Learned Counsel points out that when a clear date is stipulated f

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