Inordinate delay in seeking relief of specific performance.

(Appeal against judgment and decree of the Sub-Court, Arni in A.S.No.10 of 1998 dated 25.09.2000 in confirming the judgment and decree of the Additional District Munsif, Arni in O.S.No.170 of 1996 and dated 18.06.1997.)

The unsuccessful plaintiff in O.S.No.170 of 1996 on the file of the Additional District Munsif, Arni is the appellant in the above second appeal.

2. For the sake of convenience the parties are referred to as per their ranking in the suit.

3. The case of the plaintiff in brief is as follows:-

The plaintiff and defendant are brothers; the defendant under an agreement of sale dated 26.12.1990 agreed to sell the suit properties to the plaintiff for a consideration of Rs.19,000/-; an advance of Rs.6,000/- was paid on the same day, the plaintiff was having the balance amount of Rs.13,000/- and had always been ready and willing to perform his part of the contract, due to the pendency of a partition suit in O.S.No.105 of 1984 between the plaintiff, defendant and others, the matter was dragging and ultimately the properties were allotted to the share of the defendant; because of the uncertainty regarding the allotment of these properties to the defendant, the defendant could not convey the property to the plaintiff and now the properties have been allotted to the share of the plaintiff for which he can have no excuses; for the legal notice sent by the plaintiff a reply was sent containing false averments and hence the suit for specific performance.

4. The suit was resisted by the defendant by filing a written statement with the following defence:-

The agreement is admitted and as per the agreement the plaintiff has to pay the full consideration within 25.03.1991 but the plaintiff failed to pay the balance sale consideration within the stipulated time and get the sale deed executed, time is the essence of the contract and hence the advance amount is forfeited. It was further contended that the defendant was ready to perform his part of the contract but the plaintiff was not prepared to pay the balance sale consideration for 2½ years from the date of agreement hence the plaintiff cannot ask for advance amount; the defendant sustained loss because of the breach committed by the plaintiff; the property value has considerably increased and the suit is liable to be dismissed with exemplary costs.

5. The following issues were framed by the trial court namely:-

(i) Whether the agreement has become unenforceable because of the failure of the plaintiff to pay the amount before 25.03.1991 as per the suit agreement?

(ii) Whether the plaintiff cannot claim refund of the advance amount?

(iii) Whether the plaintiff has committed breach?

(iv) Whether the plaintiff is entitled for specific performance?

(v) To what other reliefs the plaintiff is entitled?

6. During trial the plaintiff got himself examined as P.W.1 and marked Exs.A-1 to A-13. On the side of the defendant, the defendant was examined as D.W.1 and Ex.B-1 was marked. On a careful consideration of the oral and documentary evidence adduced in the case the trial court rejected the prayer for specific performance but granted the relief of refund of the advance money. Being aggrieved by that the plaintiff filed an appeal in A.S.No.10 of 1998 before the Sub-Court, Arni but the lower appellate court also dismissed the appeal and being aggrieved by that the above second appeal has been filed.

7. When the appeal came up for admission on 22.03.2001 notice of motion had been ordered and in response to that the respondent had entered appearance through his counsel and thereafter the above second appeal is listed for hearing now.

8. Heard Mr. V.Raghavachari learned counsel appearing for the appellant and Mr. P.Valliappan learned counsel appearing for the respondent.

9. Mr. V.Raghavachari learned counsel appearing for the appellant submitted that the Courts below have erred in holding that time is of the essence of the contract when the settled principle of law is that time is not of the essen