Time is not the essence of a contract for sale of immovable property unless expressly stated; mere delay does not bar specific performance if circumstances justify it.

JUDGMENT :

1. Original Defendant in Regular Civil Suit No. 271/1977 has preferred this appeal under Section 100 of Code of Civil Procedure taking exception to the judgment and decree of specific performance of contract passed therein and confirmation thereof by First Appellate Court in Regular Civil Appeal No. 158/1985 by order dated 10.11.1981.

2. Parties are referred to as Plaintiffs and Defendant for the sake of convenience.

3. It is the case of the Plaintiffs that Defendant is the owner of the land bearing Survey No. 52 (New Survey No. 46) situated at Wagholi, Tq. Ausa. It is further averred that there was an agreement of sale executed between Plaintiffs and Defendant on 13.03.1964 whereby Defendant had agreed to sell land admeasuring 18 Acres 10 R from Survey No. 52 on payment of total consideration of Rs. 6,000/-. It is their further case that at the time of execution of agreement to sale, a sum of Rs. 5,500/- was paid to Defendant as earnest money. The balance consideration was to be paid at the time of execution of the sale-deed. Since at the relevant time, there was restriction for sale of the suit land without prior sanction from the competent authority under Hyderabad Tenancy and Agricultural Lands Act (for short ‘HTAL Act’), a condition was included in the agreement to sale that the sale-deed would be executed after obtaining permission from the competent authority. It is the case of the Plaintiffs that in the year 1965-1966, a condition of permission before effecting sale of the suit land was removed and hence the Plaintiffs time and again approached the Defendant with a request of accept balance consideration of Rs. 500/- and to execute sale-deed. It is alleged by the Plaintiffs that Defendant did not accept the balance consideration and failed to execute sale-deed. The suit came to be filed as Defendant finally refused to accept balance consideration and infact issued notice dated 17.11.1977 to the Plaintiffs revoking agreement to sale. In the plaint, it is claimed that notice of termination of issued by Defendant is not valid.

4. Defendant, by filing written statement, though accepted execution of agreement to sale however, it is denied that he has received amount of Rs. 5,500/- as alleged by Plaintiffs by way of earnest money. It is his specific case that he received only Rs. 2,500/- at the time of execution of the agreement. He further contends that affidavit was obtained by Plaintiffs from Defendant for submission to the competent authority for seeking permission for sale of the suit land. It is denied by Defendant that Plaintiffs have ever approached him with a request to accept balance consideration and on the contrary it is alleged that Defendant was time and again approached the Plaintiffs for payment of consideration, which they failed to concede. It is claimed that the agreement to sale is repudiated by notice dated 17.11.1977 and as such Plaintiffs are not entitled for any relief of specific performance. Counter claim is filed by the Defendant for seeking possession of the suit land.

5. Learned Trial Court framed issues at Exhibit 28. Plaintiffs and defendants led oral as well as documentary evidence. Learned Trial Court accepted the contention of Plaintiffs and decreed the suit by holding that the suit is filed within limitation so also the notice of termination of agreement to sale issued by Defendant is not valid. Being aggrieved by said judgment and decree, Defendant filed appeal being Regular Civil Appeal No. 158/1985 unsuccessfully. Hence, this appeal.

6. Learned counsel for Defendant submits that though technically it