V. MOHTA ANOOP, J.

( 1 ) THE appellant-plaintiff has preferred the present appeal against the judgment and order dated 4th February 1989, passed by the Civil Judge, Senior Division, Ahmednagar, in Special Civil Suit No. 310 of 1987, whereby, the Suit was dismissed.

( 2 ) THE appellants is a Co-operative Sugar Factory, having its registered office at Post Sonai village Taluka Newasa, District Ahmednagar. By an agreement dated 25th September, 1983, the appellant executed the contract for erection of a paper plant at village Sonai on a turn-key basis to utilise the left over material called "bagasse" of the sugarcane with M/s. Pentagon Engineering pvt. Ltd. (for short "m/s. Pentagon" ). The total value of the contract was Rs. 3,40,00,000/ -. Time was the essence of the contract. The said Pentagon had guaranteed the performance as agreed. As per Clauses 15 to 17 of the agreement, the appellants were entitled to retain 10% of the amount and which were to be paid after 3 to 6 months after successful working of the same after it was commissioned. In view of Clauses 15. 2. 4 and 15. 2. 5, the appellant, while making payment against the performance invoice sent by M/ s. Pentagon, us