Time is not automatically the essence of a contract unless expressly stated; the plaintiff's readiness and willingness to perform must be established.

JUDGMENT :

(R.N. MANJULA, J.)

The appellant is the plaintiff, who has filed the suit for specific performance against the defendants and got his suit decreed by the trial Court. The first appeal preferred by the defendants got allowed and the judgment and decree of the trial Court also got set aside. Hence, the plaintiff has filed the second appeal.

2. The short facts reveal from the plaintiff's case:-

The first defendant is the father of the defendants 2 to 4 and the suit property belonging to the defendants. On 23.08.2004 the defendants executed a sale agreement with the plaintiff for selling the suit property for a sum of Rs.73,700/-. On the date of the sale agreement itself, the plaintiff has paid Rs.10,000/- as advance and the time for completing the contract has been agreed as three months. Time was not considered as the essence of the contract. The plaintiff has been all along ready and willing to pay the balance sale consideration and get the sale deed executed. Despite the plaintiff approached the defendants on several occasions and asked the first defendant to receive the balance sale consideration, he evaded and did not come forward to complete the sale transaction. The plaintiff has sent a legal notice on 11.01.2005 and demanded the defendants to get the sale consideration and execute the sale deed. The defendants 1 to 3 received the notice and the fourth defendant refused to receive the notice. On 13.01.2005, the first defendant sent a reply notice with false allegations. In the reply sent by the first defendant, he has stated that the time limit for the contract has expired and that the plaintiff was not ready and willing and the sale agreement got cancelled. But the plaintiff was all along ready and hence, he has filed the suit for specific performance.

3. The defendants resisted the suits by filing the written statement which is given as brief as under:-

It is true that the sale agreement has been executed on 23.08.2024 in respect of the house site measuring 3 cents 222 square feet belonging to the defendants for a sum of Rs.73,700/- and that the plaintiff has paid an advance amount of Rs.10,000/- on the same day. The period for completing the contract is three months, but the plaintiff failed to pay the balance sale consideration within the time limit of 3 months. It is false to state that the time was not the essence of the contract. It is also not true that the plaintiff was not ready and willing to perform his part of contract. The plaintiff did not approach the defendant to tender the balance sale consideration and get the sale deed registered. After the time got expired the plaintiff has sent a legal notice with false allegations for which the defendants have sent a suitable reply. The first defendant has been keeping good health and in fact, he had been to the VAO office on 17.11.2004 and got Patta in his name. So, it is false to state that the defendants has disagreed by citing the health reason. The plaintiff is not entitled to the above relief.

4. On the basis of the above statement during the course of the trial, on the side of the plaintiffs, two witnesses were examined as PW1 and PW2, and Exs.A1 to A19 were marked. On the side of the defendants one witness was examined as DW1 and Ex.B1 was marked.

5. At the conclusion of the trial and on considering the materials available on record, the trial Court has decreed the suit and the first appeal preferred by the defendants got allowed by reversing the judgment of the trial Court. Thus, the plaintiff has preferred this second appeal and the same was admitted on the following substantial questions of law:-

“(1) When the appellate Court has come to the conclusion that time is not the essence of the Court negativing the plea of the defendants, is it just and correct on the part of the appellate Court to non-suit the plaintiff?

(2) Whether it is mandatory to deposit the balance sale consideration in the Court or unless and until directed by the Courts?

(3) When the pla