1. The present regular second appeal has been preferred by the defendant/appellant against the judgment and order dated 29.11.1997 passed by the learned Additional District Judge, North Tripura, Dharmanagar in Money Appeal No. 4 of 1993 (Shri Kandarpa Mohan Adhikari v. Sri Sailendra Chandra Kar and Others) upsetting the judgment and order dated 30.6.1993 passed by the learned Assistant District Judge, North Tripura, Dharmanagar in Money Suit No. 3 of 1990 which was filed by the plaintiff/respondent herein. While admitting the second appeal on 31.3.1998 this court has indicated the following substantial questions of law for adjudication of the appeal: -

(1) whether the time was essence of the contract ?

(2) whether oral evidence considered by the courts below was barred by the provisions of sections 91 and 92 of the Evidence Act ? and

(3) whether the first appellate court ignored the points raised before him in passing the judgment after about 9 months of the closure of the arguments ?

2. In order to deal with and adjudicate the present second appeal it is necessary to narrate the facts as below: -

There was an agreement executed by the appellant principal-defendant No. 1 Sailendra Chandra Kar on 21.12.1988 in favour of the respondent plaintiff Kandarpa Mohan Adhikari for sale of some land as described in the schedule to the plaint against the stipulated consideration of Rs. 95,000 representing that the principal-defendant was exclusive owner and possessor of the land by amicable partition with the other co-sharers (pro forma defendant Nos. 2 to 4). It was also settled in the agreement that the principal defendant No. 1 would take an amount of Rs. 30,000 in advance towards the consideration money from the plaintiff and would execute and register the lawful sale-deed in favour of the plaintiff within two months from 21.12.1988 on receiving the balance amount of Rs. 65,000 from the plaintiff. A "Bainapatra" was, thus, executed on 21.12.1988 by the principal-defendant No. 1 in favour of the plaintiff after taking payment of Rs. 30,000 as advance under the above terms/conditions.

Subsequently, it came to the knowledge of the plaintiff that there was no registered partition deed of the common property including the land for sale of the principal defendant No. 1 and the other co-sharers and the principal-defendant No. 1, was, thus found to be not in lawful and exclusive owner and possessor of the land so as to convey appropriate title/possession thereof to the plaintiff by any sale, and the other co-sharers had actually raised objection to any such transaction to be given effect to. The plaintiff was, thus, put to serious prejudice whereas he was always ready and willing to get the lawfully registered sale deed from the principal-defendant No. 1 provided that latter could procure marketable title/possession on the land by way of a registered partition deed between him and co-sharers which he could not do.

When the period of said "Bainapatra" was coming to the close because of the failure of the principal-defendant No. 1 to perform his part of obligation the plaintiff issued a lawyer's notice on 14.2.1989 on the principal-defendant No. 1 asking him to perform his part of the obligation within the period of agreement or else to be liable to repay the amount of Rs. 30,000 to the plaintiff with interest at the rate of 18 per cent per annum till realization and it was also mentioned in the .said notice that in the event of failure on the part of the'defendant No. 1 to complete the formalities the agreement shall be treated as revoked on the ground of fraud. The copies of the notices were sent to the pro forma-defendant by registered post.

Having come to know the contents of the notice the defendant No. 1 with an ulterior motive to grab the amount of Rs. 30,000 taken by him as advance from the plaintiff managed to get a registered partition deed on 21.2.1989 in collusion with pro-defendants of the common property including land proposed for sale a

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