S SHUNMUGAM CHETTY Vs. SUBBA REDDI

JUDGEMENT

(1.) The plaintiff is the appellant in the second appeal here. He sued for specific performance of a contract whose terms according to the plaint were as under: (1 The purchase-money was fixed at Rs. 4,600 on the 11th November 1909 out of which the plaintiff gave an advance of Rs. 200; (2a) Of the remaining Rs. 4,400, Rs. 900 should be deposited before the Sub- Registrar before whom the sale-deed of the plaint properties had to be registered; (2b) For the remaining Rs. 3,500, the plaintiff (vendee) was to execute a mortgage-deed to the defendants (vendors) mortgaging the properties that were to be sold, and fixing a period of three years for the repayment of the Rs. 3,500 with interest at 81/2 per cent, per annum; and (3) That the defendants should go to Satur with the title-deeds of the properties on 1st December 1909 and execute the sale-deed and register it.

(2.) The lower Appellate Court found that the contract between the plaintiff and the defendants was not on the terms 2 (a) arid 2 (6) mentioned above, but that the term was that the plaintiff should pay the Rs. 4,400 (the balance of purchase-money) in cash before the 1st December 1909 and obtain the sale-deed, and that the plaintiff s case as to his being entitled to obtain the sale-deed by merely tendering a hypothecation deed for Rs. 3,500 of the purchase-money repayable in three years was false and that it was due to the default made by the plaintiff in not being ready to pay the whole Rs. 4,400 that the contract was rightly put an end to by the defendants. On these findings, the plaintiff s suit was dismissed with costs.

(3.) We must accept the findings of fact by the learned District Judge including the finding that the plaintiff was not ready and willing to pay the Rs. 4,400 on or before the 1st December 1909. But then it is contended by the plaintiff s learned Vakil (a) that time in this case is not of the essence of the contract; and (b) that the plaintiff ought to have been at least given a decree for the specific performance of the contract with the terms as found by the District Court.