Party not entitled to specific performance.

The suit, out of which this appeal arises, was filed by the appellant for specific performance of contract dated 31st January, 1958, for the sale of a house, No. 17-25, Raja Street, Coimbatore, which belonged to the first respondent. The price settled was Rs. 23,750 of which Rs. 4,000 was paid as advance on the date of the agreement. It was agreed that the sale was to be completed within a period of three months from the date of the agreement, the stipulation in that regard being:

“The party of the first part (first respondent) shall execute and have the sale deed registered within a period of three months from this day. The said period of three months cannot be extended for any reason whatsoever, save by the consent in writing by both the parties.”

But nothing, however, happened within the period aforesaid. On 30th April, 1958, the last day specified for the performance of the contract, the first respondent sent a telegram to the appellant "House sale agreement date expires to-day. Finish sale deed to-day". There was no response to this telegram from the appellant. Correspondence, to which we shall have occasion to refer later, followed, each party accusing the other of the breach of the terms of the agreement. On 24th December, 1958, the appellant, by a notice sent through his advocate, called upon the first respondent to execute the sale deed and deliver possession of the property along with its title deeds. The first respondent decline to do so, on which the suit was instituted.

The substantial defence to the action was two-fold: (1) Time was the essence of the contract and as the appellant did not perform his part of the contract within the time stipulated by tendering the balance of the purchase money and giving the draft sale deed, there was no obligation on the part of the first respondent to abide by the terms of the contract. (2) The appellant not having been contiguously ready and willing to perform the contract, he could not obtain relief by way of specific performance.

The learned Subordinate Judge found that, notwithstanding the specific terms of the contract, time could not be considered as its essence, but that inasmuch as the appellant had himself committed a breach of the contract, the first respondent having been at all time ready and willing to perform the same, his claim should fail.

We are by no means satisfied that the view taken by the learned Subordinate Judge that time was not the essence of the contract was entirely correct. But it is unnecessary for us to go into that question, in the view we take of the other question.

There can be very little doubt, on the evidence in the case, that the appellant, who claimed a remedy by way of specific performance, was not continuously ready and willing to perform his part of the contract. We shall presently refer to the evidence in the case.

There is little controversy as to what happened subsequent to 30th April, 1958 when the first respondent sent the telegram calling upon the appellant to complete the sale. On 17th May, 1958 the first respondent, by his registered notice sent to the appellant, accused the latter of having failed to perform the contract and claimed that he would be entitled to forfeit the advance of Rs. 4,000 paid to him and further stated that the appellant would be liable to recoup any loss he (first respondent) might sustain by sale of the property to a third party. Evidently, as a reply thereto, on 22nd May, 1958, the appellant, through his advocate sent a notice complaining that the first respondent had failed to deliver up the title deeds of the property and had further defaulted in delivering possession of the property in spite of demands. There is, however, no substance in either of these two complaints, as it has been proved that the only title deed which the first respondent had with him had been delivered to the appellant, who was himself a mortgagee of the property. As regards delivery of possession, a fair readin