S.53-A of the Transfer of Property Act requires complete and unconditional willingness to perform, and a co-owner cannot construct on the property without the consent of other co-owners.

Thomas, J.

As construction of a multi-storeyed building on one of the prime sites at Ernakulam was in progress, a suit for partition was filed by one of the co-owners of the land concerned. In the suit he sought for an injunction restraining the defendants from proceeding with the construction. As the lower court granted the injunction the aggrieved first defendant - company has filed this appeal.

2. The land in dispute has an extent of 45.408 cents. It belonged to a firm called "J' Kobs" which was later dissolved and thereafter ownership of the land became vested with the erstwhile partners of the firm. Plaintiff is one among them. First defendant - a private limited company - entered into an agreement with the co-owners of the aforesaid land for purchasing the same. Ext. Al is the agreement for sale which is dated 16-9-1988. Purchase price has been fixed as Rs. 17.5 lakhs and this has to be paid to the co-owners in accordance with the share of each one of them. On the date of agreement half a lakh of rupees was paid by the first defendant. The co-owners put the first defendant-company in possession of the land and permitted the company to construct buildings thereon subject to the condition that the entire sale consideration should be cleared on or before 31-3-1990. Though it was stipulated that time was the essence of the contract, plaintiff has agreed to extend the time on a condition that interest at the rate of 18% per annum would accrue on the sale consideration remaining unpaid.

3. Plaintiff s case is that first defendant - company failed to pay his share of sale consideration even after the extended time and hence the company has no right under the agreement as against the plaintiff. As the first defendant, who got possession of the land, started construction of the building, the suit was filed for partition to safeguard the plaintiff's right in the property.

4. Substantial part of plaintiff's case seems to be undisputed. However; first defendant resisted the suit mainly on two premises. First is that the agreement for sale could not be performed due to the default of the plaintiff. Second is that the plaintiff is debarred from enforcing any right against the first defendant in view of S.53-A of the Transfer of Property Act (for short'the T.P. Act').

5. Both contentions were not prima facie acceptable to the learned Sub Judge and hence he granted the injunction prayed for.

6. Learned counsel for the appellant argued that since first defendant-company has already started construction of the multi-storeyed building in the plaint schedule property and the work has progressed considerably the balance of convenience should have been found weighing more with the refusal of the equitable relief of injunction.

7. We do not think it necessary to vex our mind with the question whether time was the essence of the contract since plaintiff, on his part, has subsequently agreed to extend the time till 14-4-1993. Ext. B23 is a letter written by the first defendant on 1-4-1993 to the plaintiff in which the latter was told that the balance amount due to the plaintiff would not be paid since plaintiff has got income tax arrears. The balance amount payable to the plaintiff, according to the plaintiff, was more than Rs. 1,75,000/- - including interest. This means that first defendant did not perform its part of Ext. Al agreement towards the plaintiff. Of course, first defendant-company has advanced an excuse for it that the income tax department has prohibited it from paying the amount to the plaintiff.

8. Ext. B5 is a communication dated 13-12-1988 received from the income tax department directing the first defendant -company to remit an amount of Rs. 45,953/- as arrears of income tax due from the plaintiff. About five years later (i.e. on 23-7-93) the tax recovery officer informed the first defendant - company that the tax arrears due from the plaintiff was only Rs. 27,570/- (vide Ext .B36 ). It is a matter for consideration whethe