PAWAN KUMAR JAIN Vs. RAJINDER KUMAR

JUDGEMENT

(1.) THIS case is on the Regular Board of this Court since 3.1.2011. Today it is effective Item No. 6 on the Regular Board. It is 2.40 P.M. and no-one appears for the respondent. I have therefore heard learned counsel for the appellant and after having perused the record I am proceeding to dispose of the case.

(2.) THE challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 04.01.2001 whereby the suit of the appellant/proposed buyer for refund of the advance price paid of Rs. 2 lakhs along with an additional amount towards double the amount payable on account of the alleged breach of contract by the respondent/defendant of the Agreement to Sell dated 01.04.1995 was dismissed. Before I proceed, I note that the learned counsel for the appellant has very fairly stated that he only presses for recovery of advance price paid and does not press the issue with respect to double the advance price on account of default in performance of the contract by the respondent/defendant.

(3.) I may note that the trial court has also dismissed the suit on the ground that the same is time bared. Once again the finding of the trial court is clearly illegal and perverse. The admitted facts are that the Agreement to Sell was dated 01.04.1995 and as per which sale deed was to be executed by 03.07.1995. Ordinarily, in contracts for sale/purchase of immovable property, time of performance is not the essence unless and until the facts which emerge on record show that the time of performance was very much the essence of contract for example where the seller either wanted to purchase another immovable property or that he was in an urgent need of funds or other such exigency and so on. In the present case, there are no pleadings or proof that the time of performance was the essence of the contract. The facts and circumstances on record do not show that there was any grave urgency or exigency or justifiable reasons for holding that the date of performance could not have been extended. Thus, it was necessary for the respondent/defendant to make time of performance of the essence by issue of a specific notice and which was not done. Since the present case has been filed on 09.09.1998 (instead of three years from 3.7.1995), I therefore do not find that there is such great delay that it should be held that suit was barred by time, more so because there is no reason for the respondent to illegally withhold the advance amount paid in view of the ratio of the decision of the Supreme Court in the case of Fateh Chand (supra).