PADMAKSHY AMMA Vs. DR. K. N. MALLINATHAN

JUDGEMENT

(1.) Defendant in Order Sec. 282 of 1993 on the file of the Court of the Additional Sub Judge, Kochi is the appellant. The suit was one for specific performance. As per Ext. A1 agreement, the plaint schedule property measuring 15 cents was agreed to be sold by the appellant-defendant to the plaintiff for a total sale consideration of Rs. 2,70,000.00, viz; at the rate of Rs. 18,000.00 per cent. Out of the total sale consideration of Rs. 2,70,000.00 so payable, Rs. 2,00,000.00 was paid as advance to the appellant on the date of Ext. A1 agreement 1.e. 15-2-1991. As per the terms of Ext. A1, the sale shall be executed within two years from the date of agreement before which the defendant is to cause the property to be measured at her cost so as to satisfy its extent to the plaint and to hand-over the document of title, incumbrance certificate, income-tax clearance certificate, tax receipt etc. to the plaintiff. On performance of defendant's obligations, the plaintiff shall pay the balance sale consideration of Rs. 70,000.00 and shall get the sale deed executed at his cost. Since the defendant failed to measure out the property and also failed to hand over the title deed and encumbrance certificate, the plaintiff issued Ext. A2 lawyer notice to the defendant demanding execution of the sale deed. However, the defendant did not issue any reply to Ext. A2. The plaintiff would allege that the period of Ext. A1 agreement was extended by six months as requested by the defendant as per Ext. A5 agreement dated 13-2-1993 entered into between the parties. Since the defendant failed to execute the sale deed even after the expiry of the extended period as per Ext. A5, the plaintiff issued Ext. A6 lawyer notice calling upon the defendant to execute the sale deed. In the back-drop of the above facts and circumstances, the instant suit for specific performance was filed by the plaintiff.

(2.) The defendant filed a written statement contending inter-alia that time was the essence of the contract. The period of Ext. A1 agreement was extended not on the request of the defendant and, and she was ready and willing to perform her part of the contract and the plaintiff never offered the balance sale consideration and the suit is liable to be dismissed. The evidence in this case consists of PW-1, DW-1 and Exts. At to A7 and Ext. B1. The trial Court on an appreciation of evidence on record decreed the suit with costs and hence this appeal.

(3.) The learned counsel for the appellant contended before us that the time was the essence of the contract and since the plaintiff having failed to perform his part of the contract within the stipulated time, he is not entitled to a decree for specific performance. We do not find that the defendant can succeed on this ground. The fact that Ext. A1 sale deed was agreed to be executed within two years from the date of agreement does not by itself make the stipulation as to time the essence of contract. The question as to whether the time is the essence of contract will depend upon whether the parties to the contract in fact intended it to be so and that intention may be evidenced either by express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in contract for sale of land stipulation as to time is not of essence. Applying the aforesaid principle to the facts of the present case, it has to be held that time is not the essence of the contract. It has come out in evidence that the agreement could not be performed during the period stipulated in Ext. A1 on account of the default on the part of the defendant in measuring out and demarcating the land and her failure to make available the title deed of the property. Therefore, Ext. A1 agreement had to be extended at the instance of the defendant for a further period of 6 months as per Ext. A5. The defendant having agreed to extend the period of the original agreement cannot turn round and say that time is the essence of the contract. In the aforesaid view, we are satisfied that the parties never treated time as essence of the contract. Accordingly, we find that time is not the essence of the contract entered into between the plaintiff and defendant.