( 1 ) THERE is delay of 40 days in filing the appeal. The application for condonation of delay is taken up along with the main matter.

( 2 ) THE respondents 1 and 2 have filed objections to the IA for condonation of delay and has strongly objected for the same. We have considered the reasons assigned by the appellant in the affidavit filed by her in support of the prayer for condonation of delay. We are of the view that sufficient cause is made out and the delay of 40 days in filing the appeal deserves to be condoned in the facts and circumstances of this case. Hence, application I. A. I of 2002 is allowed and delay of 40 days in filing the appeal is condoned. The matter is heard for final hearing with the consent of the parties.

( 3 ) SUIT for specific performance of the contract filed by respondents 1 and 2 herein has been decreed. The defendants 1 and 2 (appellant and respondent 3 in this appeal respectively) are directed to execute registered sale deed in respect of the suit property and to deliver vacant possession of the same in favour of the plaintiffs. Defendant 1 being aggrieved by the said judgment and decree has filed this regular first appeal. The parties in this appeal will be referred to by their ranks as obtained in the Trial Court, for the sake of convenience.

( 4 ) THE facts which are relevant for the disposal of this appeal as pleaded by the respective parties are that plaintiffs 1 and 2 are husband and wife. Defendant 1-Saraswathamma is the owner of the suit schedule property. The 2nd defendant is the developer with whom the 1st defendant has entered into an agreement to develop the suit property. The 3rd defendant is the brother of the 1st defendant. The suit schedule property is described as property bearing No. 77/1 measuring 45 ft. x 75 ft. (350 sq. yards) situated at 4th Main, Malleshwaram, Bangalore.

( 5 ) DEFENDANT 1-Saraswathamma is the absolute owner of the property in question. The 2nd defendant has entered into an agreement and has joined hands with the 1st defendant to develop the schedule properties on certain terms and conditions set out in the agreement dated 6-2-1988 entered into between them. As per the said agreement, a building consisting of 6 flats along with six car parking spaces was required to be constructed and the premises to be constructed was known as Rajsa Apartments. Out of the six flats and six car parking spaces, the defendant 1 was to be given one flat bearing flat No. 3 and the corresponding car parking space and the remaining were agreed to be sold to third party, the profits to be shared between defendants 1 and 2, after defraying the expenses.

( 6 ) IT is pursuant to this agreement that the defendants 1 and 2 being desirous of selling the flats and the car parking spaces, offered to sell flat No. 4 along with the car parking space in favour of the plaintiffs herein. An agreement for sale was entered into on 21-10-1989 where under the plaintiffs agreed to purchase the property in question for a total consideration of Rs. 3,90,000/ -. The plaintiffs paid a sum of rs. 90,000/- by way of cheques dated 21-10-1989 and 25-10-1989 drawn in favour of defendant 2. The balance consideration of Rs. 3 lakhs was agreed to be paid after obtaining loan from the Canfin Homes Limited. The balance amount was required to be paid at the time of registration of sale deed. It was agreed that the l/6th undivided share in the suit property was required to be handed over in favour of the plaintiffs with the constructed flat completed in all respects and with all facilities and amenities in a habitable condition. The defendants were required to complete the construction of the apartments and deliver the possession to the plaintiffs within ninety days from the date of agreement. The time was agreed to be the essence of the contract.

( 7 ) THE plaintiffs applied and obtained loan of Rs. 3,00,000/- from canfin Homes Limited well-within the stipulated period of 90 days. Loan was sanctio