Time being of the essence of the contract and the defendant's failure to perform their part of the contract constituted a breach of contract.

( 1 ) THIS appeal by the defendant has been preferred against the decree and judgment dated August 23, 1975 made in o. S. No. 10 of 1971 by the Civil Judge, bellary.

( 2 ) BRIEFILY stated the facts are these : plaintiff is a registered firm and so too the defendants. They are carrying on business as mineral dealers. On february 1, 1968 the defendants firm (collectively called 'the defendant') entered into an agreement with the plaintiff at Madras to sell 600 tonnes of red-oxide at Rs. 50/- per tonne F. O. R. Torangallu, Hospet, Bellary, In consideration for the sale of red oxide, plaintiff paid Rs. 30,000/- to the defendant. The delivery was required to be made within 45 days from the ready stock available at Bellary. The time was considered as of the essence of the agreement. If the goods were not delivered within 45 days, plaintiff could ask for refund of the purchase price. The defendant was having its head office at madras and a Branch Office at Bellary. The Head Office sent instructions to the branch Office apprising the latter of the agreement and asking to comply with the terms thereof. But the defendant did not supply the goods within the stipulated time with the certificates required inspite of repeated reminders from plaintiff. So plaintiff brought the suit for recovery of Rs. 30,000/- paid under the agreement.

( 3 ) THE defendant resisted the suit, inter alia contending that the goods agreed to be sold were always kept ready for delivery to the knowledge of plaintiff, but it could not be delivered since plaintiff did not requisition railway wagons as required under the agreement. The requisition of wagons was a necessary condition of the contract, but plaintiff in view of the falling price of red-oxide made only paper pretences for taking delivery while in effect and in practice failed to perform his part of the contract. The time was not of the essence of the contract. However, the defendant for keeping up smooth relationship between the parties was always ready and willing to deliver the goods as per conditions prescribed under the contract. The goods were kept ready to despatch with all the necessary certificates when plaintiff extended time for delivery, but even then, plaintiff did not intimate the availability of railway wagons. Plaintiff has thus committed a breach of the contract and therefore not entitled to get back the price money paid. With these and other allegations the defendant prayed for dismissal of the suit.

( 4 ) OUT of the issues framed by the trial Court, the following may be relevant for our consideration : (I) Whether the defendant has committed a breach of the contract inasmuch as it has not supplied the ore within the stipulated time ? (ii) Whether time was of the essence of the contract ? the evidence produced by the parties consists mostly of letters exchanged between them and their legal advisors with the oral evidence of one witness on each side. On an appreciation of the evidence, the trial Court came to the conclusion that time was of the essence of the contract and the defendant has committed a breach of the contract by not supplying the red-oxide as per agreed conditions.

( 5 ) WE have heard Mr. C. M. Mon- appa for the appellants and Mr. R. N. Govinda Bhat for the respondent. In the light of submissions made by counsel on both sides and upon considering the material on record, the following two points arise for our consideration : (I) Whether time was of the essence of the contract and, if so, whether it was waived by plaintiff ? (ii) Whether there was a breach of the contract and, if so, by whom ?

( 6 ) THIS point turns on the construction to be put upon the terms of the contract and the correspondence which was taken place between the parties and their legal advisors. The professed object of the court in construing a written contract is to discover the intention of parties, the written declaration of whose mind it is. But this intention must be ascertained fro