Time is essence of contract.

S.M. Ali Mohamed, J.

These two original side appeals arise out of a common judgment of a learned single Judge of this Court in C.S.No.232 of 1981 dated 7.6.1984.

2. The plaintiff is the appellant in O.S.A.No.166 of 1985 and the first defendant is the appellant in O.S.A.No.9 of 1986. The appellant P.C.Martin in O.S.A.No.166 of 1985 instituted a suit on the original side of this Court for specific performance of contract for sale against the defendants. The first defendant has filed O.S.A.No.9 of 1986 against the impugned judgment insofar as the counter-claim made by the 1st defendant against the plaintiff was not decreed in its entirety.

3. The respective pleadings of the plaintiff and the defendants are summarised by the learned trial Judge which are as follows:

‘ ‘The plaint mentioned house belongs to the first defendant and the second defendant who is the husband of the first defendant. The house was newly constructed and the plaintiff was put in possession of the same as a tenant on 3.9.1977 on a monthly rent of Rs.800. Since the defendants have purchased another house in some other locality, they have decided to dispose of this house to the plaintiff who is in occupation of the same as a tenant. There were prolonged negotiations and for some reasons or other, the agreement of sale was pending and finally on 29.11.1979 the agreement was entered into under which the defendants agreed to sell the house to the plaintiff at Rs. 1,75,000. The plaintiff paid a sum of Rs. 10,000 as advance on 29.11.1979. It was agreed that the balance of payment shall be made within six months from that day, and if time were to be extended, the plaintiff, will pay interest on the amount upto a limit of Rs.800 being the rent for the premises. A further sum of Rs.25,000 was paid as consideration by the plaintiff on 22.2.1980.

As per the agreement of sale the tenancy came to an end and the plaintiff was a purchaser and possessor of the property in part-performance of the contract. When the plaintiff wrote to the defendants on 7.11.1980 offering to pay the balance of sale consideration, the letter repudiated the contract and cancelled the same. The plaintiff was all along ready and willing to perform his part of the contract and to pay the balance of sale consideration on receipt of the documents of title. But the defendants were postponing the same and the defendants are now trying to wriggle out of the contract. Hence, the suit for specific performance of the contract sale.

The first defendant/ Jambagalakshmi who is the owner of the suit property filed a written statement as follows:

The house in question was a newly constructed one and completed in or about 1977. The plaintiff is a friend of her husband and the plaintiff became a tenant of the property in September, 1977 on a rent of Rs.800 per month. The plaintiff wanted to purchase the property himself and was negotiating with this first defendant’s husband, viz., second defendant. But the plaintiff took his own time and he never evinced any eagerness to purchase the same, and he was putting it of endlessly. Therefore, in the middle of 1979, this defendant, wanted to know from the plaintiff ‘whether he was interested in purchasing the house at all, and if not whether it can be sold to third parties in which case the plaintiff will have to vacate the premises. It was in this context, after a considerable delay, an agreement of sale was entered into between the parties under which the first defendant agreed to sell the house at a concessional price of Rs. 1,75,000. The plaintiff had no money to make the purchase and he has only paid a small sum of Rs. 10,000 as advance on 29.11.1979 on which date he was already in arrears of rent. The receipt-cum-agreement was written on 29.11.1979 and it was agreed that the plaintiff should pay the balance of the sale consideration within six months and take sale deed. Besides the sum of Rs. 10,000 paid on the date of agreement, the plaintiff could pay only a