The essence of time in contracts is crucial; unless proven otherwise, plaintiff's willingness to perform can be accepted through personal knowledge of family members.

J U D G M E N T

A.Muhamed Mustaque, J.

The defendant in a suit for specific performance has approached this Court in this appeal challenging the decree of specific performance. The defendant is the owner of certain extent of land in Kurichikkara Village in Thrissur Taluk. On 6/5/2010, the defendant agreed to sell 3 Acres 84.5 cents of land to the plaintiff. The consideration was calculated at Rs.26,497/- per Cent. Rs.1 lakh was paid as earnest money. The plaintiff agreed to pay Rs.29 lakhs in the bank where the property was mortgaged. It was also agreed that the agreement will be performed on or before 6/9/2010. The plaintiff had paid Rs.29 lakhs as agreed. The agreement was extended on 6/9/2010 until 10/10/2010 for the reason that certain extent of land in the resurvey records had not been changed in the name of the defendant. Again the agreement was extended until 30/10/2010. Lastly, the agreement was extended on 23/2/2011 with an understanding that if the resurvey issue is not resolved on or before 7/3/2011, the agreement will not be extended further and if law permits, the undisputed land will be registered before 10/3/2011. It is admitted by the parties that a total amount of Rs.45 lakhs was paid on various occasions by the plaintiff to the defendant.

2. The plaintiff appears to have expressed his willingness to perform this agreement. Accordingly, the plaintiff sent a lawyer's notice on 19/5/2011 demanding specific performance of the agreement.

3. The defendant did not respond to the notice. Accordingly, the suit was laid for specific performance.

4. The defendant's case was that on 10/3/2011, agreement was rescinded on mutual agreement by making an endorsement on the 7th page to the agreement dated 6/5/2010 on a condition that the defendant would return Rs.45 lakhs with 7%

interest to the plaintiff.

5. Trial Court found in favour of the plaintiff and granted specific performance except in relation to 39.03 Cents of land. The trial court found that with respect to the 39.03 Cents of land referred in the Commission report, there exists a dispute in the survey reports. Further, in the light of the agreement dated 23/2/2011 between the parties, there is no difficulty for the defendant in executing a deed in respect of undisputed land. The trial court also noted that the defendant failed to prove the last of the endorsement claimed by the defendant that rescinded the contract itself.

6. In this appeal, the learned counsel for the appellant raised the following points for consideration:

i. Non examination of plaintiff in a suit for specific performance is fatal to grant the relief of specific performance ii. Time being the essence of the contract, the contract itself ran out by efflux of time; therefore, the plaintiff was not entitled to the relief of specific performance.

7. The plaintiff was not examined. His son was examined as PW1. According to the defendant, the son has no personal knowledge of the matter. The learned counsel for the appellant relied on the judgment ofMan Kaur (Dead) by Lrs. v. Hartar Singh Sangha [ (2010) 10 SCC 512 ] and argued that oral testimony of a person who has no personal knowledge of the transaction cannot be relied upon by the Court. According to the learned counsel regarding the readiness and willingness, the plaintiff alone can speak about it. We perused the evidence of PW1. He was cross-examined at length. It was deposed by PW1 that his father, the Plaintiff was laid up. He minutely deposed about the transaction and recollected every detail of the transaction without any error. As rightly pointed out by the respondent-plaintiff, the veracity of the testimony has to be tested by its credibility. We cannot eschew the oral evidence of PW1 in this appeal. The Apex Court inMan Kaur's case supra referred to the legal position as to who should give evidence in regard to matters involving personal knowledge and summarized the law as follows:

12. We may now summarise for convenience, the position as to who s