Time is not always of the essence in land sale contracts unless expressly stipulated or strongly implied by circumstances.

1. This appeal by the defendant is from the judgment and decree of the learned Subordinate Judge, Cachar at Silchar. The plaintiff filed that suit for specific performance of an agreement dated 10-3-1962. The plaintiff sold the jote right of the suit land by a registered sale deed on 10-3-1962 to the defendant and delivered possession thereof. On the same date there was an agreement between the plaintiff and the defendant to the effect that within three years the defendant would reconvey the suit land in favour of the plaintiff on receiving the sale price and accordingly the defendant executed a registered Ekrarnama on 10-3-1962. Notwithstanding repeated demands the defendant failed to reconvey the suit land. The plaintiff tendered the consideration but the defendant did not accept the same Hence the plaintiff filed the suit for specific performance.

2. The defendant contested the suit on grounds inter alia that the plaintiff never approached the defendant and made no demand for reconveyance of the suit land and that the plaintiff never tendered the consideration to the defendant, but he deposited the amount in court only after the expiry of the time of the contract. Hence according to the defendant, the plaintiff was not entitled to any decree for specific performance.

3. Several issues were framed on the pleadings of the parties and the learned trial court dismissed the suit holding that the plaintiff made no tender of the consideration within time and his deposit in court was not valid in law.

4. An appeal was preferred before Munsiff. The learned Subordinate Judge allowed the appeal, reversed the judgment and decree of the learned trial court and decreed the plaintiff's suit. Hence this appeal by the defendant.

5. Mr. K.P. Bhattacharjee, the learned counsel appearing for the appellant submits that in the instant case time was of the essence of the contract and since the plaintiff failed to pay the consideration to the defendant or to deposit the same within the stipulated period, the contract ceased and there could be no decree for specific performance of the contract. Mr. M.H. Choudhury, the learned counsel appearing for the plaintiff respondent submits on the other hand that on a proper construction of the agreement Ext.1 time was not of the essence of the contract and that the plaintiff was ever ready to make the payment but the defendant did not accept the same and therefore he had to deposit the consideration money in court in terms of the agreement itself. But as the challan was not passed by the court on the date of filing the suit but it was passed by the court on 15-3-1965, the plaintiff could make the required deposit in treasury on 16-3-1965 and therefore the deposit was within time.

6. The first point that arises for consideration in this case is whether time was of the essence of the contract in the instant case. In Gomathinayagam Pillai v. Palaniswami Nadar , AIR 1967 SC 868 Shah J. delivering the majority judgment observed as follows:
"S.55 of the Contract Act which deals with the consequences of failure to perform an executory contract on or before the stipulated time provides by the first paragraph:
"When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee If the intention of the parties was that time should be of the essence of the contract."
It is not merely because of specification of time at or before which the thing to be done under the contract is promised t