Plaintiff cannot seek for enforcement of contract after committing breach of conditions of sale.

K. MOHAN RAM, J.

Being aggrieved by the judgment and decree dated 27.6.1991 made in O. S. No. 561 of 1985 on the file of the III Additional Sub-Court, Coimbatore, the first defendant has filed the above 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 as pleaded in the plaint is set out below:

(i) The first defendant in or about January 1985 called for tenders and invited offers from the general public for the purchase of two building sites Nos. 2 and 10 of an extent of about 9 cents each, the former at the minimum rate of Rs.18,000/- per cent and the latter at the minimum rate of Rs. 15,000/-, fixing 14.2.1985 as the last date for receiving tender. The plaintiff sent its tender forms for the purchase of plot No. 10B measuring about 8.425 cents and enclosed a bankers cheque, dated 13.2.1985 for Rs. 10,000/- representing initial deposit amount.

(ii)The first defendant accepted the plaintiffs offer by sending its letter of confirmation, dated 11.5.1985 and required the plaintiff to remit the balance price of Rs. 1,97,338/- by means of a demand draft and further required the plaintiff to purchase the necessary stamp papers to enable the first defendant to prepare and execute the document early. The plaintiff by letter dated 23.5.1985 requested the first defendant to send the plan of the site showing the measurements and boundaries so that the plaintiff could prepare and send the draft sale deed for the first defendants approval and indicated thereby that it was ready and willing to perform its part of the obligation.

(iii) Ever sincethe time when the contract was concluded and confirmed, viz., on and from 11.5.1985, the plaintiff was, has been, and continues to be ready and willing to perform its part of the obligation under the contract and the plaintiff even now has the money ready, in the form of bank deposit receipts standing in the names of the partners.

(iv)The plaintiff bona fidely expected the first defendant to furnish the plan of the suit property to enable the plaintiff to incorporate the description of the property in the sale deed and the partners of the plaintiff were in touch with the officers of the first defendant between 11.5.1985 and 22.6.1985. The first defendant made the plaintiff to understand that its office would send the needed particulars in due course and the plaintiff could wait to discharge its obligations till then.

(v)While so, the plaintiff received the first defendants letter, dated 22.6.1985 on 24.6.1985, stating that in view of the alleged non-compliance of Clauses (8) and (9) of the tender terms, the plaintiffs offer was treated as cancelled and the deposit amount of Rs. 10,000/-was forfeited. The plaintiff was made to believe that it would take some time for finalizing the draft sale deed itself and the question of payment of balance price could arise only after approval of the draft sale deed. The first defendants cancellation of the contract is untenable in law, unreasonable and unjustified in the light of their confirmation letter, dated 11.5.1985, in and by which, the plaintiff was required to pay the entire balance price and not as per Clauses (8) and (9). The first defendant ought to have given the notice of cancellation before 30 days from 11.5.1985, expressing its intention to avoid the contract for the alleged non-performance of payment, assuming without admitting that time was the essence of the contract. In contracts relating to immovable property, time is not the essence of the contract. In the instant case, time was never agreed to be the essence of the contract and at any rate not expressly agreed to be so. Nor did the first defendant purport to treat time as the essence of the contract at any time before 22.6.1985.

(vi) The plaintiff immediately approached the first defendant on 26.6.1985 itself with the bank draft for Rs.1,97,338/- drawn in favour of the first defendant and tendered it