JUDGMENT :

(Prayer: Second Appeal filed under section 100 of the Code of Civil Procedure against the judgment and decree of Sub Court, Kallakurichi dated 30.11.2012 made in A.S.No.14 of 2012 confirming the judgment and decree of Principal District Munsif, Kallakurichi dated 23.11.2011 made in O.S.No.393/2009.)

1. The defendant is the appellant in this Second Appeal.

2. The respondent/plaintiff filed a suit for specific performance based on the agreement of sale dated 18.5.2007.

3. The case of the plaintiff is that the defendant is the owner of the suit property and she entered into an agreement of sale with the defendant on 18.5.2007. A sum of Rs.60,000/- was fixed as the sale consideration and the plaintiff paid an advance amount of Rs.50,000/- on the date of the agreement. The further case of the plaintiff is that the balance sale consideration of Rs.10,000/- must be paid to the defendant within a period of 2 years and on receipt of the same, the defendant has to execute a sale deed in favour of the plaintiff.

4. It is stated that the plaintiff started approaching the family manager of the defendant one month prior to the expiry of 2 years as fixed in the agreement and was informing that she is ready and willing to pay the balance sale consideration. The defendant was not coming forward to execute the sale deed after receiving the balance sale consideration. Hence, a legal notice was issued on 4.7.2009 to the defendant, calling upon the defendant to receive the balance sale consideration and execute the sale deed in favour of the plaintiff. Since the defendant did not act upon the legal notice, the suit came to be filed on 15.7.2009 seeking for the relief of specific performance.

5. The defendant filed a written statement and took a stand that the plaintiff did not come forward to pay the balance sale consideration within 2 years that was fixed in the sale agreement and hence, the plaintiff is not entitled for the relief of specific performance. The defendant also volunteered to repay back the advance amount of Rs.50,000/- received from the plaintiff.

6. Both the Courts below on appreciation of oral and documentary evidence, found that the plaintiff has made out a case and granted the relief of specific performance in favour of the plaintiff. The defendant aggrieved by the same, has preferred this Second Appeal.

7. This Court framed the following substantial questions of law:

(a) Whether the Courts below committed a Legal error in construing that the time fixed in the suit agreement is not essence of the contract over looking the availability of forfeiture clause?

(b) Whether the plaintiff who failed to prove her readiness and willingness to pay the balance sale consideration before expiry of time stipulated in the agreement is entitled to specific performance of this contract?

8. The learned counsel for the appellant submitted that the time was the essence of the contract since the agreement itself fixed a time limit of 2 years for the plaintiff to pay the balance sale consideration and get the sale deed executed in her favour. This time limit expired on 17.5.2009. Only after the expiry of the period, the plaintiff took the first step of issuing a notice on 4.7.2009 and even without waiting for a reply from the defendant, rushed to the Court and filed the suit on 15.7.2009. Therefore according to the learned counsel for the appellant, the plaintiff was not ready and willing to perform her part of the contract.

9. The learned counsel for the appellant further submitted that both the Courts below allowed the suit only on the ground that the defendant did not give a reply for the legal notice and hence, adverse inference was drawn against the defendant. Yet another ground that was put against the defendant was that the sale agreement had a forfeiture clause if the plaintiff fails to perform her part of the contract within the stipulated time and whereas, there was no such stipulation that imposed any penalty against the defendant if he d