JUDGMENT :

A.K. RATH, J.

1. The defendant is the appellant against a confirming judgment.

2. The plaintiff-respondent instituted the suit for specific performance of contract. The case of the plaintiff was that the defendant agreed to sale the suit house to him for a consideration of Rs.24/-per sq. ft. He executed an agreement on 25.1.92. He received Rs.50,000/-towards part consideration promising to get the land measured and to execute the sale deed within 60 days after receiving the balance consideration. The extent of land had to be demarcated by the defendant. The plaintiff approached the defendant several times, but all his persuasions ended in a fiasco.

3. The defendant resisted the claim of the plaintiff on the ground that though the agreement was executed on 25.1.92, he had not received Rs.50,000/-towards part consideration. Consideration was fixed at Rs.1,20,000/-. Earlier an agreement was executed on 1.9.1991. The same was cancelled as the plaintiff committed a breach of contract. Advance amount of Rs.50,000/-was paid in respect of the earlier amount had been forfeited. The agreement had not been acted upon and as such unenforceable.

4. On the interse pleading of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary. Learned trial court came to hold that the price quoted in the agreement, Ext.A, was @ Rs.24/-per sq. ft. The sale price was to be calculated after measurement of the land. The advance consideration of Rs.50,000/-was paid by the plaintiff on 25.1.92. The defendant was a defaulter and wanted to avoid performance of contract. Time is not the essence of contract. Held so, it decreed the suit. Feeling aggrieved, the defendant filed T.A. No.6/97 before the learned District Judge, Ganjam-Gajapati, Berhampur. Learned appellate court concurred with the finding of the learned trial court and held that in case the defendant fails to get the suit land measured, calculate the price of the land @Rs.24/-per sq. ft. and execute the sale deed after receiving the balance consideration within a month from the date of the judgment, then he would be liable to refund the advance of Rs.50,000/-to the plaintiff within a fortnight. Held so, it dismissed the appeal.

5. The second appeal was admitted on the following substantial questions of law.

“As to whether the finding of the courts below that time is not the essence of the contract is legal and/or proper.”

6. Heard Mr. S.S. Rao, learned counsel for the appellant and Mr. Maheswar Das on behalf of Mr. K. Rath, learned counsel for the respondent.

7. Mr. Rao, learned counsel for the appellant submits that the defendant executed an agreement on 25.1.92. For nonperformance of part of contract by the plaintiff, the defendant cancelled the agreement. The amount so received by the defendant pursuant to the earlier agreement stood forfeited. He further submits that in the agreement itself, there is a clause that the sale deed was to be executed within a period of two months from the date of execution of the agreement. Thus time is the essence of contract. He further submits that there is interpolation in the agreement. The plaintiff sent two letters, which were not received by the defendant. The conduct of the plaintiff disentitled for grant of any specific relief. He further submits that there is neither any pleading nor evidence on record that the plaintiff had sustained any loss. Thus the award of damages of Rs.50,000/-by the learned appellate court is perverse.

8. Per contra, Mr. Das, learned counsel for the respondent submits that time is not essence of contract in case of immovable property. Stipulation period of 60 days in the agreement itself does not mean that time is the essence of contract. There is a further clause in the agreement that the defendant has to measure the land, calculate the amount adjusting Rs.50,000/-therefrom and sell the land after receipt of balance consideration. He further submits that the defendant executed an agreement