JUDGMENT

1. This is an appeal by the Plaintiff in a suit to enforce specific performance of a contract for sale of land and machineries 43described in the schedule to the plaint. On the 25th June 1917, the first Defendant entered into an agreement with the Plaintiff to convey to him the properties in suit for a sum of Rs. 6,000. Rs. 51 was paid as earnest money and the residue was agreed to be paid at the time of the execution of the conveyance. The vendor undertook to deliver to the Attorney for the purchaser within one week from the date of agreement all documents of title in his possession. The agreement next provided as follows: (a) "the purchase shall be completed within three weeks from the date hereof, (6) should the purchaser fail to complete the contract within the time and in manner hereinbefore mentioned, notwithstanding that a good title had been made out, the vendor would be at liberty to cancel the agreement, forfeit the earnest money and claim either damages or specific performance of the contract." On the 1st August 1917, the first Defendant sold the land and the machineries to the second Defendant. Two days later the Plaintiff instituted the present suit for specific performance of the contract. The first Defendant pleaded that the Plaintiff was in default and was not entitled to a decree for specific performance. The second Defendant pleaded that he was a bond fide purchaser for value without notice. The Subordinate Judge found upon the evidence that the second Defendant had notice of the prior agreement and could not consequently claim the protection accorded by a Court of Equity to a bond fide transferee for value without notice. He held, however, that time was of the essence of the contract and that there was default on the part of the Plaintiff. In this view he dismissed the suit with costs. On the present appeal no serious effort has been made to dispute the conclusion of the Subordinate Judge that the second Defendant was not a bond fide purchaser for value. At the time of his purchase, the title deeds were, not in the possession of the first Defendant and if he had made an enquiry like an ordinary prudent purchaser, he would have discovered the existence of the prior contract. In these circumstances it is unnecessary to determine whether he had actual knowledge of the agreement between the Plaintiff and the first Defendant. The substantial question for consideration is whether time was of the essence of the contract and whether there had been such default on the part of the Plaintiff as to disentitle him to a decree for specific performance. The agreement for sale was made on the 25th June 1917. The title deeds were to be delivered to the Attorney for the purchaser on or before the 2nd July and the transaction was to be completed not later than the 16th July. The title deeds were not delivered on the appointed day, for although two documents were made over to the purchaser on the date of the agreement, two others were not sent till the 11th July. The draft of the conveyance was submitted on the 19th July and the time for its execution was extended to the 24th July. On the 23rd July, one of the officers of the Plaintiff went to see the land and the machineries of the oil-mill which stood thereon. He found that instead of 600 plates mentioned in the agreement for sale, only 532 were on the spot, and that one of the wheels was broken. He reported to his attorney the next day that the requisite number of plates had not been found and that the machinery was not in a sound condition. On that very day, the 24th July, the vendor went to the office of the purchaser's attorney probably before the latter had received intimation of the defects just mentioned. As the purchaser did not appear, the vendor left after stating that the time for completion was further extended by 24 hours. On the 26th July the attorney for the Plaintiff wrote to the solicitor for the Defendant and informed him of the defects which had bee