JAGADAM PARAMESU Vs. JAGADAM MARIDAYYA AND ORS.

JUDGEMENT

(1.) This second appeal which is filed by the defendant arises under the following circumstances. The respondent filed a suit O. S. No. 71 of 1963 in the court of the Subordinate Judge, Amalapuram for specific performance of an agreement of sale dated 16-4-1961 (Ex. A. 1.) executed by the defendant in favour of the plaintiff agreeing to sell an extent of Ac. 4-32 cents of land for a sum of Rs. 5184/- A sum of Rs. 600/-.was paid as advance on the date of agreement and it was stipulated that within a period of two months from the date of the agreement, the balance should be paid and that the sale deed should be executed. Subsequently after the expiry of the period of two months, as the plaintiff did not tender the amount, the defendant vendor himself issued a registered notice Ex. A. 2. dated 14-7-61 providing therein that time was made the essence of the contract by virtue of the said notice and also indicating grounds for making time the essence of the contract. Accordingly, the defendant in the said notice gave one week's time to the plaintiff to pay the balance of the sale price so that the sale deed may be executed. After receiving this notice, the plaintiff gave a reply Ex. B. 1. dated 21-7-1961 stating that he came to know that there were certain disputes regarding the property and gave one month's time to the defendant to produce the title deeds and satisfy him regarding the title, but that he was neverthe-less always ready and willing with the money to perform his part of the contract. Thereafter nothing happened and the plaintiff filed the suit on 20-11-1963 for specific performance of the agreement. It is alleged in the plaint that though the plaintiff, was always ready to obtain the sale deed, it was only the defendant that was evading performance. The suit was contested on the ground that the time was made the essence of the contract, that the plaintiff was never ready with the money and that the suit should be dismissed. Both the courts below decreed the suit rejecting the plea of the defendant.

(2.) In this second appeal, it is contended by the learned counsel for the appellant firstly, that time was made the essence of the contract by virtue of the notice Ex. A. 2. and that in the absence of any complaint from the plaintiff that the said period of one week was unreasonable, it is not for the lower appellate court to say that the time fixed was unreasonable; and secondly that the plaintiff was never ready with the money even on his own admissions.

(3.) Taking up the first point for consideration whether time was made the essence of the contract it is now settled law that even though time was not made an essential term in the original agreement which relates to sale of land it is open to either party at a subsequent date to make time an essential condition of the bargain subject to the only requirement that the time subsequently fixed is reasonable. In the registered notice Ex. A. 2 the defendant fixed one week's time for the performance of the contract making time an essential condition. A reading of the reply notice Ex. B. 1 shows that the plaintiff had no ground of complaint as regards the reasonableness of the time fixed by the defendant. For the first time in the reply notice, he stated rather vaguely that he came to know that there were certain disputes regarding the property and that he asked the Karnam to make an investigation regarding the disputes. There is not even an averment in the said notice that the defendant's title was doubtful and it is not stated what the particular disputes were which he wanted the Karnam to investigate. The main ground on which the lower appellate court rejected the condition imposed in Ex. A. 2 was that the period of one week was unreasonable. I do not think that it is for the court to say that it is unreasonable when the plaintiff himself never complained that the period fixed was unreasonable. Even assuming that the period of one week was unreasonable, the plaintiff never tendered the money within any further time which could be regarded as reasonable, except that at the time of his filing the suit in 1963 he stated that he was ready and willing to perform the contract. Hence on the first point I find that under law time was properly made an essential term of the bargain and it was the plaintiff who committed breach of the contract by not complying with the conditions imposed by the defendant. It is urged on behalf of the plaintiff-respondent that even assuming that time was made the essence of the contract under Ex. A. 2 the said time limit was being extended from time to time as a result of mediations and that the said mediations having been upheld by the courts below, he is entitled to say that time was no longer an essential term of the bargain. A reading of the plaint and the registered notice Ex. B. 1 clearly indicate that this theory of extension of time is a pure afterthought and was never pleaded in the plaint. Hence I do not think that the courts below are justified in finding a case which was not pleaded by the plaintiff. The main ground of the plaintiff in his plaint is that inspite of repeated demands, the defendant never agreed to execute the sale deed. There was no whisper in the plaint that time was asked for and that it was extended.