Time is not of the essence in a contract for sale of immovable property if the seller accepts late payments, indicating a waiver of the stipulated time frame.

JUDGMENT :

Aggrieved over the Judgement and Decree dated 04.10.2017 made in O.S.No.32 of 2012 by the Principal District Judge, Vellore, the defendants have preferred the appeal suit.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. Suit for specific performance of contract, Permanent injunction and alternative relief of return of advance amount.

4. The defendants in O.S.No.32 of 2012 on the file of the Principal District Court, Vellore, are the appellants herein.

5. The plaintiff's case is as follows:

The Plaintiff filed the suit for specific performance to be enforced against the defendants as per the terms of a sale agreement released to an immovable property. Since the plaintiff is a businessman which entails frequent trips to other places, he had appointed an attorney by name Arumugam S/o. P.K. Nagappan, through a deed of special power of attorney to enable the attorney to prosecute the train in this case since he is conversant with all facts of this case. The Plaintiff entered into an agreement with the defendants on 02.07.2008 to purchase their immovable property for a total sale consideration of Rs.15,62,000/-. This sale agreement was reduced to writing on stamped paper on the same day (i.e..) 02.07.2008 and tendered Rs.2,00,000/- as part of sale consideration agreeing to accomplish the execution of sale deed on or before 01.09.2008. Though a fixed time for performance was in the sale agreement neither of the parties intended to strictly act upon as stipulated. This is evident from the fact that the defendants had accepted deferred payments even after 01.09.2008 to a sum of Rs.4,50,000/- (Rupees Four Lakhs only) on 20.08.2008 Rs.2,00,000/- on 26.03.2009 and a further sum of Rs.50,000/-on 08.07.2010. All these receipts of part sale consideration were duly endorsed in the sale agreement by 1^st defendant on behalf of himself and other defendants. Some portion of sale consideration was spent to meet out the 1^st and 3^rd defendants. The 1^st defendant and other defendants being descendants of a single family. The 1^st defendant exercised power of control on other defendants as the eldest member in the family. Hence, the various payments of part sale consideration were remitted to the 1^st defendant who made the endorsements on behalf of other defendants also hence they are bound by the entries. Further it is more often viewed that "Time is not the essence" of this type of contract. The defendants have received a total sum of Rs.9,00,000/- as part sale consideration and balance of Rs.6,62,000/-remains to be paid.

5.1.The defendants, after receiving the major portion from the total sale consideration and after satisfying their immediate and pressing needs and necessities, started behaving in a different manner. The plaintiff has been always willing and ready to perform his contract, whereas the defendants atleast thwarted their performance. The plaintiff visited the defendants atleast 50 times to persuade them to do their part of the contract. The 1st defendant met with an accident and sought some more time to execute the sale deed. In another occasion, he cited the March 2011, general election to the Tamil Nadu Assembly and pleaded to postpone the sale deed execution after the election is over. The defendants delayed the sale deed execution as per his whims and fancy. Hence the plaintiff caused to issue a legal notice on 16.05.2011 calling the defendants to perform their part of contract after receiving the balance sale consideration. But the defendants approached the plaintiff through one Mr.Narasimhan who was president of Vanjur Panchayat and requested to defer the sale deed execution due to some personal Inconvenience. As requested by the defendants, the plaintiff waited for some more time, having the required money, in his hand to conclude this contract of sale deed. Therefore, the plaintiff sent a second legal notice on 31.01.2012 calling upon the defendants to come forward to