In the case of sale of immovable property, there is no presumption as to time being the essence of the contract. However, the court may infer that time is to be performed in a reasonable time if the conditions are: (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances.

Tarun Kumar Gupta, J.

This second appeal is directed against judgment dated 5th December, 2009 and decree thereof passed by learned Additional District Judge, Fast Track Court (III) Sealdah in Title Appeal No.12 of 2008 affirming in part the judgment dated 29th March, 2008 and decree thereof passed by learned Civil Judge (Senior Division) Sealdah in connection with Title Suit No.108 of 1993.

2. The original plaintiff Smt. Sunanda Roy filed said suit for specific performance of contract against the original defendant No.1 Smt. Rama Chakraborty. During pendency of the suit both the plaintiff and defendant died and their heirs were substituted in their places. During pendency of the suit the present appellants were added as defendant Nos. 2 and 3 on the basis of their application under Order 1 Rule 10 of the Code of Civil Procedure.

3. The original plaintiffs’ case, in short, is that the original defendant Smt. Rama Chakraborty being owner in possession of the suit premises made a registered agreement dated 14th of December, 1987 agreeing to sell the suit premises to the original plaintiff for a sum of Rs.87,000/- and she received a payment of Rs.12,000/- being earnest money out of said consideration amount. It is further case that as per terms of said registered agreement the registration of the sale deed should be completed within one year from the date of execution of said agreement subject to extension of further time if required due to unavoidable circumstances. It is further case that the original defendant could not execute the conveyance deed within one year and executed another agreement dated 14.12.1988 extending time for two years from said date with further stipulation that extension of further time would be made by the parties, if required. It is further case that though the original defendant received payments from the plaintiff of different denominations on different dates against receipts towards consideration money but she could not execute kobala. Though the plaintiff paid in total a sum of Rs.62,700/- to the original defendant out of consideration money of Rs.87,000/- and the plaintiff was all along ready and willing to make payment of balance amount towards execution and registration of sale deed, but the defendant could not execute the same in spite of repeated requests. Though the original defendant gave vacant possession of the two rooms of the suit premises to the original plaintiff but she could not execute a kobala and the plaintiff ultimately sent a registered letter to the defendant praying to fix a date for execution and registration of kobala but the original defendant did not pay any heed to said request. Hence was the suit for specific performance of contract and in the alternative for refund of the amount paid together with interest thereupon.

4. After addition of defendant Nos. 2 and 3 the plaint was amended by inserting that added defendant Nos. 2 and 3 knowing fully well about the agreement and the pendency of the Title Suit No.108 of 1993 filed a suit being Title Suit No.165 of 1995 in the same Court on 22.09.1995 against the heirs of Rama Chakraborty alleging that Rama Chakraborty had an agreement of the sale of the suit property to them and obtained an ex parte decree in said case suppressing the fact that the present suit being Title Suit No.108 of 1993 on the self-same subject matter was pending. It is further case of the plaintiff that said added defendant Nos. 2 and 3 also filed a Title Execution Case No.8 of 1997 and managed to obtain a kobala in respect of the suit property registered through Court. It is further alleged that said judgment of Title Suit No.165 of 1995 was not binding upon the plaintiff and that plaintiff was entitled to get a decree for specific performance of contract or in the alternative a decree for Rs.62,700/- together with interest against the defendants.

5. The original defendant Smt. Rama Chakraborty filed a written statement admitting execution of agree