Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. .....

[1997 (3) SCC 1 (K.S.Vidyanandam and others v. Vairavan)

“I do not know” - is the answer given by the owner of the property, (D1/D.W.1), when he was asked to comment upon the question as to whether the plaintiff, who is seeking the relief of specific performance of the agreement, was always ready, able and willing to purchase the suit property.

2. Whether this nebulous answer could be construed as amounting to an admission that the plaintiff was ready and willing to perform his part of the contract so far as the agreement is concerned or would it imply that he was not ready and willing.

3. Based upon the sale agreement, dated 23.09.2005, the plaintiff is seeking the relief of specific performance as against the defendants. The first defendant is the owner of the property and the second defendant was the original agreement holder, from whom, the plaintiff has obtained the assignment of the agreement.

4. The suit property is the land and building to an extent of 3600 sq.ft., in Plot No.27, in S.No.443, Velacherry, Chennai – 600 042. The first defendant offered to sell the property in favour of the second defendant and the second defendant accepted to purchase the property for a sale consideration of Rs.66 lakhs.

5. The first and second defendants entered into an agreement on 23.09.2005. The plaintiff was also present at the time of the sale agreement and as such aware of all the terms and conditions of the agreement. In fact, the plaintiff is the witness, who has signed in the sale agreement.

6. The second defendant paid an advance of Rs.3 lakhs on 23.09.2005 and paid a sum of Rs.50,000/- on 20.12.2005 and a sum of Rs.50,000/- on 06.02.2006. The first defendant extended the time for another three months for performance of the contract.

7. The second defendant nominated the plaintiff, as the purchaser, and from the plaintiff, the second defendant received an amount of Rs.4 lakhs, which was the advance paid by her.

8. The plaintiff sent a notice, dated 27.11.2006, demanding copies of title deeds and documents, relating to the suit property. The first defendant received the notice on 28.11.2006. Even after the receipt of the notice, the first defendant did not produce the copies of documents and did not send the reply also. As the first defendant was trying to sell the property, the plaintiff was compelled to file the suit.

9. The claim made by the plaintiff has been objected by the first defendant on the following grounds:-

(i) The plaintiff, having deliberately suppressed the truth and having not approached the Court with clean hands, is not entitled to the discretionary remedy of specific performance.

(ii) There was an urgency to sell the property and therefore, even on 18.09.2005, this defendant received a sum of Rs.3 lakhs as advance and at a later point of time, the sale agreement, dated 23.09.2005, was brought into existence.

(iii) The time is an essence of the contract. The three months time as mentioned in the agreement would indicate that the time is the essence of the contract.

(iv) The second defendant was never ready and willing to perform her part of the contract. Just before the expiry of three months, the second defendant paid a sum of Rs.50,000/-. Though she agreed to perform the contract within a extended period of three months, even that was not done.

(v) Though the second defendant is authorized to assign the agreement in favour of anybody, but that option is available, only so long as the assignment is in time. The second defendant