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TMI Blog2008 (1) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... H. 0.40 R of Village Nagaon in Hatkanangale Tahsil. The defendant had entered into an agreement for sale of the said lands to the plaintiffs for a consideration of Rs. 85,000/- per acre. The agreement was reduced into writing and according to the terms of the agreement, the sale deed was to be executed by the defendant within a period of six months. It was agreed that possession of the lands was to be delivered at the time of execution of sale deed. The defendant has also undertaken the responsibility of obtaining necessary permission for sale of the lands, if required. On the date of execution of the agreement, an amount of Rs. 20,000/- was paid by the plaintiffs to the defendant as earnest money and balance amount of the consideration was to be paid at the time of execution of the sale deed. The plaintiffs were always ready and willing to perform their part of the contract but the defendant avoided to receive the balance amount of consideration and neglected to execute the sale deed. The plaintiffs sent a legal notice on 16.07.1988 to the defendant through their advocate calling upon him to perform his part of the obligation under the contract. In spite of the notice, the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 31.07.1985, reasonings of the trial Court as well as the High Court and submissions before this Court, only two points arise for consideration of this Court, namely, (a) whether time is the essence of the contract? and (b) whether the plaintiffs were ready and willing to perform the contract? 7. In order to find an answer to the above questions, it would be useful to refer the relevant recitals from the agreement of sale. Para 3 of the agreement specifically mentions the details of the land sought to be sold such as extent and boundaries. It also refers the easement rights and the period in which the sale has to be completed. The recital reads as under: From the total consideration I have received Rs. 20,000/- as an earnest money of which no independent receipt is necessary. Rest of the amount is to be paid by you at the time of sale deed of the said lands. It is agreed between the parties that the sale deed is to be executed within 6 months from today. Possession of the land is to be handed over at the time of sale deed. It is also relevant to mention the default clause which reads as under: For completion of the sale deed the permission is required to be obtained by me. If I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the essence of the contract. [Vide Gomathinayagam Pillai v. Pallaniswami Nadar 1 (at p. 233).] It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract. 23. In Indira Kaur (Smt) v. Sheo Lal Kapoor AIR1988SC1074 in paragraph 6 it was held as under: ...The law is well-settled that in transactions of sale of immovable properties, time is not the essence of the contract. 9. It is clear that in the case of sale of Immovable property, there is no presumption as to time being the essence of the contract. Even where the parties have expressly provided that time is the essence of the contract, such a stipulation will have to be read along with other provisions of the contract. For instance, if the contract was to include clauses providing for extension of time in certain contingencies or for payment of fine or penalty for every day or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant in not strengthening his plea by placing acceptable evidence. In such circumstances, as rightly argued by learned Counsel for the appellants, the High Court should have confirmed the decree of specific performance granted by the trial Court. On the other hand, the High Court wrongly placed reliance on the decision of this Court in K.S. Vidyanadam and Ors. v. Vairavan AIR1997SC1751 as in the facts of that case, this Court found that granting for specific performance was inequitable, however such aspect of the matter was totally absent in the case on hand. Even otherwise, para 11 of the judgment shows that the subject matter of the property was an urban Immovable property and in such special circumstance relaxed the general rule that time is not the essence of the contract in the case of Immovable properties. In the case on hand, the details furnished in the agreement clearly show that the subject- matter of the property is an agricultural land situated in Kolhapur Dist., Maharastra. In such circumstances, the decision in K.S. Vidyanadam and Ors. (supra) is not applicable to the facts on hand. In the facts of the present case, which we have already adverted to, neither the te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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