In a contract of sale, the time for payment is not deemed to be the essence of the contract unless there is a stipulation to the contrary. Therefore, the vendor cannot cancel the contract for non-payment of the price within the time stipulated by it unilaterally.

RAMANUJAM, J.:- The plaintiff in O.S. No.336 of 1973, on the file of the Sub-Court, Madurai, who has failed in that court, is the appellant herein.

2. The appellant-Mill filed the suit for recovery of a sum of Rs. 18,500/-, as damages for the breach of a contract which it had entered into with the defendant on 30-3-1972. The appellant's case as set out in the plaint is that on 30-3-1972, the defendant's representative attended the Sales Committee meeting held by the plaintiff at Madurai District Central Co-operative Bank Ltd., Madurai, for fixing the price of sugar and gave a written tender on that day to purchase 500 bags of E. 30 sugar at Rs. 262 per bag. The said tender was accepted by the plaintiff and that acceptance was duly communicated to the defendant's representative who deposited then and there a sum of Rs. 5000/- representing Rs.

10 per bag as advance, agreeing to pay the balance of the sale price by 10th April 1972, and take delivery of the entire 500 bags of E. 30 sugar thereafter. Since the defendant did not remit the balance of sale consideration till 8th April 1972, a telegram was sent by the plaintiff to the defendant calling upon the defendant to remit the balance of the cost of the sugar before 10th April, 1972, and lift the goods before 20th April, 1972. The defendant in his reply telegram assured the remittance shortly. Thereafter the plaintiff extended the time for payment and for performance of the contract by the defendant till 20th April, 1972, and the defendant was asked to perform his part of the contract by 20th April 1972. But the defendant by a telegram through his lawyer on 29th April, 1972, repudiated the contract on the ground that the contract is not a concluded contract and therefore the defendant is not bound to pay the sale consideration. Subsequently the price of sugar had fallen and the plaintiff had sold the sugar at a price ranging from Rs. 215 to Rs. 217 per bag exclusive of excise duly and therefore the plaintiff has been put to a loss at the rate of Rs. 47 per bag and the total loss suffered by the plaintiff as a result of the defendant's breach of the contract is Rupees 23500/-. Deducting a sum of Rs. 5000/-, paid as advance by the defendant, the balance of Rs. 18500/- is payable by the defendant as and by way of damages for his breach of contract.

3. The defendant resisted the suit contending that there was no concluded contract between the plaintiff and the defendant on 30th March, 1972, as alleged in the plaint, that the defendant never agreed to take delivery of the goods before 30th April, 1972, that there was no specific agreement to remit the full price on or before 10th April, 1972, and that the fixing of time for payment of the price and for taking delivery of the goods has been done unilaterally by the plaintiff long after the defendant submitted his tender and the same was accepted. Thus according to the defendant, there was no consensus between the parties as to the time for payment of the balance of sale consideration and as to the time for taking delivery and that there is no question of the defendant committing breach of the contract which has not been duly concluded. The defendant also reserved his right to recover the advance amount of Rs. 5000/-, paid by him to the plaintiff.

4. On these pleadings the Court below set out the following three issues for consideration :1. Whether it is true that the defendant has committed breach of contract as alleged by the plaintiff?

2. Is the plaintiff entitled to claim damages? if so, to what amount?

3. To what relief?

Under issue No. 1, the Court below held that since there was no concluded contract between the plaintiff and the defendant on 30th March, 1972, under Ex. A. 2, the tender given by the defendant's representative, there is no question of any breach of any contract and in view of the said finding on issue No. 1, the rest of the issues were found against the plaintiff and the suit was dismissed.

5. In this appeal th