JUDGMENT :

(Prayer: This Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree in A.S.No.13 of 2011 dated 16.07.2012 on the file of the District Court, Krishnagiri, confirming the judgment and decree made in O.S.No.100 of 2010 dated 01.11.2010 on the file of the Subordinate Court, Krishnagiri.)

1. The unsuccessful plaintiff is the appellant herein.

2. The brief facts leading to filing of Second Appeal:-

(a) The plaintiff has filed a suit in O.S.No.100 of 2010 before the Subordinate Court, Krishnagiri, for specific performance of Ex.A1/Suit Sale Agreement in respect of the schedule mentioned property of an extent of 10 cents in Survey No.283/3B1 and as per the terms of the said Agreement of Sale, he had already paid a sum of Rs.3,00,000/- on the date of agreement viz., 01.09.2006; on 02.09.2006, he has paid a sum of Rs.50,000/-; on 05.09.2006, he has paid a sum of Rs.1,00,000/-. In toto, Rs.4,50,000/- was paid to the defendant.

(b) Originally, the sale consideration was fixed at Rs.6,90,000/- and the plaintiff has already part paid with Rs.4.5 lakhs. Based upon the part payment of sale consideration, the respondent/defendant has discharged the housing loan with Cooperative Department and obtained original sale deed and handed over the original sale deed and other Revenue documents of the land and building in the suit property to the plaintiff/agreement holder. As per Ex.A1, three months time is fixed for payment.

(c) Thereafter, Ex.A6/Legal notice was issued by the plaintiff on 18.01.2007 by expressing his readiness and willingness to execute his part of the contract and subsequently, the same was returned on 05.02.2007. The defendant/owner also issued a legal notice that he is willing to refund the advance amount, since the sale had not been completed within the stipulated time as per the terms under Ex.A1/Suit Sale Agreement.

(d) Thereafter, the plaintiff has filed the said suit in O.S.No.100 of 2010 with the above prayer and the same was dismissed in respect of the main relief and in view of the willingness expressed by the defendant/owner, it appears that learned Subordinate Judge has granted return of the advance amount paid with interest, though there is no specific prayer in this regard. Aggrieved by the said order, the plaintiff has filed an appeal in A.S.No.13 of 2011 before the District Court, Krishnagiri and the same was dismissed and hence the Second Appeal is filed by the plaintiff.

3. The above Second Appeal was admitted on 21.11.2012 on the following Substantial Questions of Law:

“1. Whether the Courts below are justified in holding that the time is essence of the contract, when the same is not pleaded by the respondent?

2. Whether the Courts below are justified in relying on the evidence of the respondent, which was not pleaded in the written statement, for dismissing the suit?

3. Whether the Courts below are justified in holding that the appellant is not ready and willing to perform his part of contract, when the appellant has proved by documents that he is always ready and willing to perform his part of contract?”

4. Mr.Om Prakash, learned Senior Counsel appearing for the appellant contended that though Ex.A1/Suit Sale Agreement, is for an extent of 10 cents, 2 1/2 cents were already acquired for Highways and available extent of land is 7 1/2 cents. He further contended that, in view of the reduction in the extent of land covered under Ex.A1/Suit Sale Agreement, the sale consideration has come down to Rs.67,500/-, viz. the balance amount to be paid and he is already willing to deposit the said amount and since it is meager amount, non payment of such amount cannot be put against the plaintiff/agreement holder.

5. The terms of Ex.A1/Suit Sale Agreement have been invited to my attention. Based upon the part of the sale consideration paid and received by the defendant, the existing loan in cooperative Bank was discharged on 30.09.2006, as could be seen from Ex.A5/loan discharge receipt.

6.