JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 29.09.2000 of the learned Additional District Judge, Chengalpet made in A.S.No. 5 of 2000 confirming the Judgment and Decree dated 24.09.1999 of the learned Subordinate Judge, Poonamallee in O.S.No. 8 of 1985.)

1. The plaintiff in O.S. No. 8 of 1985 on the file of the Sub Court, Poonamallee is the appellant herein.

2. O.S. No. 8 of 1985 had been filed seeking specific performance of an agreement dated 12.06.1981. The suit was decreed by judgment dated 17.07.1987.

3. The defendant then filed A.S. No. 1064 of 1987 before this Court. A Learned single Judge of this Court by judgment dated 12.08.1999, had allowed the appeal suit, set aside the decree dated 17.071987 and remanded the matter back to the trial court for fresh disposal on analysis of the pleadings and oral and documentary evidence.

4. Arguments were heard afresh in O.S. No. 8 of 1985. By judgment dated 24.09.1999, the suit was dismissed.

5. The plaintiff then filed A.S. No. 5 of 2000 which came up for consideration before the Additional District Judge cum Chief Judicial Magistrate, Chengalpattu. By judgment dated 29.09.2000, the appeal suit was dismissed. The plaintiff then filed the present second appeal.

6. The second appeal had been admitted on the following substantial questions of law :

“1. Whether the Courts below were right in dismissing the suit on the ground that time is the essence of the contract when the respondent/defendant deliberately evaded to execute the sale deed within the specified period ?

2. Whether the Courts below were right in dismissing the suit without appreciating the exhibits marked by the plaintiff ?

3. Whether the Courts below were right in concluding that the appellant had not deposited the balance consideration even after filing of the suit when the Court had not ordered the same and when the appellant had deposited the amount subsequent to the decree ?”

7. Pending the appeal, the respondent/defendant died and his legal representatives were brought on record as 2nd to 5th respondents. O.S. No. 8 of 1985 (Sub Court, Poonamallee):

8. The plaintiff, A. Kamalammal stated in the plaint that she had entered into an agreement on 12.06.1981 with the defendant K.R. Balasubramanyam to purchase the property at No.69, Bharathi Nagar Main Road, Zameen Pallavaram, Saidapet for a total consideration of Rs.40,000/. She claimed that an advance of Rs.5,000/- had been paid on the date of the agreement. She stated that the defendant should produce a nil encumbrance. It was agreed that the sale transaction will be completed within 3 months from the date of the agreement. The plaintiff claimed that she was ready and willing to pay the balance sale consideration. She further stated that she, along with her husband and others visited the defendant on 10.09.1981 and demanded performance of the agreement. The defendant postponed performance and stated that he would execute the sale deed on 21.09.1981. However, on 15.09.1981, the defendant caused an Advocate notice to be sent, wherein it was stated that since time was the essence of the agreement, and since the plaintiff had not come forward to pay the balance sale consideration, the agreement stood cancelled. The plaintiff issued a reply denying and disputing the contentions, and then filed the suit seeking specific performance.

9. In the written statement, the defendant admitted to the agreement. However, it was stated that time was the essence, since he had committed himself to purchase an Engineering Workshop. He specifically stated that the plaintiff had understood that time was the essence of the agreement. He denied the averments that the plaintiff was ready and willing to pay the balance sale consideration. He denied that the plaintiff visited him on 10.09.1981. He stated that on 12.09.1981, when the plaintiff and her husband and others visited him, they had only offered to pay a sum of Rs.