Time is not inherently the essence of a contract unless explicitly stated; the plaintiff's readiness and willingness were established, justifying the decree for specific performance.

1. Suit bearing Special Civil Suit no. 81/2007 came to be filed by seeking specific performance of contract, which was decreed. Against the said judgment and decree, Regular Civil Appeal No. 119/2012 were preferred unsuccessfully. Against the concurrent findings and judgments and decrees, original defendant has preferred this appeal under Section 100 of Code of Civil Procedure.

2. Parties are referred to by their nominclature in the original proceedings for the sake of convenience.

3. Facts which led to filing of present appeal can be narrated in short as under :-

Defendant is owner of shop admeasuring 20 x 14 sq. ft. situated at property bearing Municipal No. 424, Iqbal Complex, Parbhani. As per the case of plaintiff, an agreement of sale (Exhibit 26) was executed between plaintiff and defendant on 7th January, 2004 in presence of witnesses. It was agreed between them that plaintiff will purchase the shop for consideration payable to defendant at the rate of Rs. 2,400/- per sq. ft. for the internal portion of the said shop. Earnest amount of Rs. 1,00,000/- was paid. It was agreed to execute the sale-deed before 31st March, 2004. Expenses of sale-deed were to be borne by plaintiff. Defendant No. 1 agreed to provide all essential documents such as P.R. card, transfer certificate and also accepted to clear municipal taxes, electricity bill etc. before executing the sale-deed. Plaintiff claims that he was ready and willing to make payment of remaining consideration to the defendant. However, defendant was not in a position to clear the dues and to handover the documents required for execution of the sale-deed. Defendant demanded Rs. 2,00,000/- from the plaintiff for the purpose of clearing dues which plaintiff agreed to pay. On payment of Rs.2,00,000/- the time for execution of sale-deed was extended upto 31st May, 2004. Thus, it is the case of plaintiff that he had paid total sum of Rs. 3,00,000/- out of total consideration and he was always ready and willing to pay balance amount of Rs. 3,72,000/-. Plaintiff further claims that he published public notice in the newspaper showing his intention to purchase the said shop. He also issued notice to the defendant indicating that he is ready to pay remaining consideration and to call upon him to execute the sale-deed.

4. Defendant, by filing written statement, though has admitted the agreement to sale but denied measurements of the suit shop. It is his contention that time is the essence of contract and plaintiff was under contractual obligation to get the sale-deed executed by making payment of balance consideration till 31st March, 2004. It is alleged that plaintiff could not arrange the balance consideration and has requested for extension of time. Plaintiff is said to have agreed to pay damages by way of rent of the shop to the tune of Rs. 21,000/- and such agreement was in presence of witnesses i.e. Bashir and others and on this condition, defendant agreed to extend time for execution of sale-deed upto 31st May, 2004. It is the case of defendant that plaintiff was never ready and willing to perform his part of the contract and that the suit is not filed belatedly as such he is not entitled for the relief of decree of specific performance.

5. Issues were framed at Exhibit 19. Plaintiff examined himself and also led evidence of three other witnesses. Defendant, on the other hand, apart from leading his own evidence, led evidence of two witnesses.

Learned Trial Court accepted the case of plaintiff and proceeded to pass decree of specific performance. Defendant was unsuccessful before the First Appellate Court. Hence, this appeal.

6. Learned counsel for defendant submits that as per the terms of the agreement to sale, time is the essence of contract as it was agreed between the parties to execute sale-deed before 31st March, 2004. It is his further contention that once the parties have agreed to make the time as essence of contract, it is not open for them to plead general princip