T. N. VALLINAYAGAM, J.

( 1 ) THE plaintiff is the appellant. The suit for specific performance was dismissed by the trial Court and such dismissal was confirmed by the Appellate court on appeal by the plaintiff, the plaintiff is therefore before this Court in this second appeal.

( 2 ) THE case of the plaintiff is that the suit plot belongs to the defendant and she on 19. 5. 1975 executed an agreement in favour of the plaintiff agreeing to sell the same for a sum of Rs. 10,000/- and a sum of Rs. 1500/- was paid as advance and the balance of Rs. 8,500/- was to be paid on or before may 1976. The amount was not paid alleging that he is ready and willing to perform his part of the contract offering to pay the balance of the sale consideration. He also prayed for a decree against the defendant for return of the earnest money with interest.

( 3 ) THE defendant contended admitting the agreement but denying that plaintiffs is ready and willing to perform the contract. She had already filed O. S. 67/78 against the plaintiff when he unlawfully entered into the possession of the defendant. The said suit was pending alleging that the plaintiff never approached her aged father to execute the sale deed or for refund of money. She contended that the advance paid should be forfeited.

( 4 ) THE trial Court found that the plaintiff has not performed his part of the contract and the suit is also barred by the period of limitation. On this ground the suit was dismissed. To the question that limitation was not canvassed before the trial Court, the trial Court held that the suit was in time. Holding that the advance, itself was forfeited, the trial Court dismissed the suit. The Appellate Court confirmed the for feiture folding that the time is the essence of the contract. In view of the recitals in the agreement of sale, the normal presumption that time is not the essence of the contract is disbelieved in the present case. Consequently, the dismissal was confirmed by the Appellate Court.

( 5 ) PRIMA facie it is seen that the agreement was dated 19. 5. 1975 and the agreement is to be completed on or before May 1976. The suit was filed on 3. 8. 1978. Once the time is fixed in the contract for specific performance, and on the expiry of the time, the limitation begin to run. In this case, the limitation started to run from May. 1976. Consequently, the suit filed on 3. 8. 1978 is in time. The plaint was prepared on 26. 7. 1978 and presented on 3. 8. 1. 978. It was alleged in the plaint that the plaintiff approached the defendant with the balance amount of consideration on 15. 4. 1976 and the defendant refused to accept the same. Therefore, the suit filed on 3. 8. 1978 is in time. The decision relied upon in Govind Prasad Chaturvedi v. Hari Dutt Shastri to the following effect makes the position clear:"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 immoveable property it will normally be presumed that the time is not the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract. "

( 6 ) TIME is not always the essence of the contract. But if circumstances mentioned in the recitals indicate the intention of the parties as time being the essence of the contract, then time in that particular contract shall be construed to be the essence of that contract. In the above case it is also seen that there was neither pleading nor evidence. It was contended that time was the essence of the contract and the party did not come to the trial on that basis. No issue was framed in that regard. Neither terms of the agreement nor correspondence indicate that the time is the essence of the contract. Therefore, the view held by t

Click Here to Read the rest of this document