This second appeal has been filed against the judgment and decree, dated 26. 2008, made in A.S.No.76 of 2007, on the file of the First Additional District Court, Erode, confirming the judgment and decree of the First Additional Subordinate Court, Erode, dated 21. 2005, made in O.S.No.68 of 2003.

.2. Thedefendant in the suit, in O.S.No.68 of 2003, is the appellant in the present second appeal. The respondent had filed the suit praying for a decree directing the defendant to execute a sale deed, in respect of the suit schedule property, in favour of the plaintiff or his nominees, on receipt of the balance sale consideration, within the time fixed by the Court and to put the plaintiff in the possession of the property.

3. It hadalso been prayed that in case the defendant fails to execute the sale deed the Court concerned may be pleased to execute the sale deed on behalf of the defendant, in favour of the plaintiff or his nominees and in the alternative to direct the defendant to refund the sum of Rs.2,56,640/- to the plaintiff, with interest at the rate of 12% per annum, from the date of the suit, till the date of the realization of the said amount and to create a charge over the suit property towards due payment of the said amount and for costs.

4. The plaintiff had stated that the suit properties are agricultural lands and that the defendant is the absolute owner of the said properties, by virtue of registered sale deeds, dated 21. 1993, and 4. 1999, registered as Document Nos.95/99 and 761/99, on the file of the Sub Registrar, Avalpoondurai.

5. It had also been stated that the defendant had offered to sell the suit property to the plaintiff for a sum of Rs.2,50,000/- and he had insisted that an amount of Rs.2,40,000/-be paid as advance. The plaintiff, having accepted the offer made by the defendant agreed to purchase the property for a sum of Rs.2,50,00/- and on 26. 2002, the plaintiff and the defendant had entered into a written agreement for sale.

6. Pursuant to the said agreement the defendant had received a sum of Rs.2,40,000/-, as advance, as part of the sale consideration, in the presence of the attestors. On receipt of the said amount the defendant had handed over the original sale deeds, dated 21. 1993, 28. 1981, 4. 1999, and 22. 1975, pertaining to the properties covered under the agreement.

7. The agreement for sale had been presented for registration, on 26. 2002, and registered as Document No.1401 of 2002, on the file of the Sub Registrar, Avalpoondurai. The period fixed under the said agreement was three years for the execution of the sale deed and the agreement contains certain other conditions, as well. Time is not the essence of the said agreement.

8. It had also been stated that, from the date of the execution of the agreement of sale, the plaintiff has always been ready and willing to perform his part of the contract, by paying the balance of sale price and to register the sale deed, at his cost, as per the terms and conditions of the agreement. Thereafter, the plaintiff had tendered the balance amount to the defendant and he had also expressed his desire to register the sale deed. However, the defendant was not willing to perform his part of the contract by registering the sale deed.

.9. In such circumstances, the plaintiff had issued a legal notice, dated 1. 2003, calling upon the defendant to receive the balance of sale consideration and to execute the sale deed. Having acknowledged the receipt of the notice, on 1. 2003, the defendant had sent a reply notice, dated 1. 2003, through his counsel. On receipt of the reply, the plaintiff had sent a rejoinder notice, dated 11. 2003, along with a xerox copy of the said agreement. Even after the receipt of the rejoinder notice the defendant had not chosen to execute the sale deed, as per the terms of agreement. In such circumstances, the plaintiff had filed the suit, on the file of the First Additional Subordinate Court, Erode, in O.S.No.68 of 2