A.Gunasekaran v. K.Damayanthi

of Rs.30,100/-; on receipt of the registered notice, the respondentissued a reply notice, admitting the receipt of a sum of Rs.10,000/-as advance and alleging that she had sent a notice to the appellanton 27.02.1988. According to the appellant, no such notice was eithertendered or served on him. (c)Since the respondent did not come forward to complete thesale, the appellant filed a suit in O.S.No.249 of 1990 for adirection to the respondent to execute the sale deed in his favourfor Rs.40,100/- receiving the balance of Rs.30,100/- and put him inpossession of the property, failing which, direct an officer toperform the said part of the execution of the sale deed on behalf ofthe respondent in favour of the appellant and put the appellant inpossession thereof.3.The respondent in her written statement has denied theaverment of the appellant that he is always willing and ready toexecute the sale deed. According to her, she entered into a contractfor sale of the suit property under an agreement dated 03.05.1987with the appellant as she was having a pressing need for money atthat time; her sons were young and she had to incur heavy expenditurefor their education and her husband was also unemployed then. Sincethe appellant had not performed his part of the contract as per theterms and conditions embodied in the agreement dated 03.05.1987, therespondent had sent a notice on 27.02.1988 to the appellant askinghim to execute the sale by paying the balance amount of Rs.34,180/-within a period of 15 days from the date of notice. She had furthernotified the appellant that the original document of Sale Deed dated01.07.1981 should be returned to her in the event of his notcomplying with the demand made in the notice dated 27.02.1988. 3a.According to the respondent, the period fixed in theagreement had expired and the claim is barred by time, as time wasmade the essence of contract and therefore, the appellant is notentitled to a decree for specific performance. She has furtherstated that she is an illiterate woman, doing coolie work and leadinga hard life and the suit property is the only property which shepossesses, which she banks for putting up a dwelling shelter. It isher further case that if the suit property is knocked away by theappellant, then she will be in great difficulties.4.The Trial Court on consideration of the facts andcircumstances of the case and on analysis of the material records,framed issues and dismissed the suit in favour of the respondent,thereby directing the respondent to pay the advance amount ofRs.10,000/- to the appellant with interest at the rate of 12% fromthe date of suit till the date of payment. Hence, this appeal. https://hcservices.ecourts.gov.in/hcservices/

5. Learned counsel for the appellant has contended that thelearned Subordinate Judge has erred in law in dismissing the suitfor specific performance in respect of sale agreement dated03.05.1987, particularly when the sale agreement is admitted and thecontract sought to be enforced is a valid one. He also contendedthat the Court below failed to appreciate that it is well settled lawthat in respect of sale of immovable property the ordinarypresumption is "time is not the essence of the contract". Accordingto the learned counsel, the Court below ought to have seen that thequestion of hardship must be judged as on the date of the contractand not on the subsequent events, the hardship should be onecollateral to the contract and not in relation to a term of thecontract such as quantum of consideration. 5a.It is also the contention of the learned counsel for theappellant that the Court below ought to have seen that neither in thereply notice marked as Ex.A-4 nor in the plaint, the appellant hascome forward with the case that the transaction is a commercialtransaction as such time is the essence of the contract; when thereis neither plea nor evidence to support the case of commercialtransaction, the learned Subordinate Judge erred in law in assumingthat the transaction is a commercial one and time is the of theessence of the contract. 5b.Learned counsel for the appellant in support of hiscontentions has relied on the following decisions:(i) In 65 L.W. 25 (DB) in the case of S.V.Sankaralinga Nadarvs. P.T.S.Ratnaswamy Nadar, this Court has held as under:"Where in a suit for specific performance of anagreement to sell certain properties the defendant allegedthat the plaintiff was guilty of inordinate delay andlaches in bringing the suit and therefore was not entitledto the discretionary relief of specific performance. ...Under S.22(2) of the Specific Relief Act thequestion of hardship must be judged as on the date of thecontract and not on the subsequent events. The hardshipshould be one collateral to the contract and not inrelation to a term of the contract such as quantum ofconsideration. Where at the time when a transaction wasentered into, it was for proper consideration the fact thatthe value of the properties had considerably risensubsequently will not be a basis for the Court to refuse arelief for specific performance."(ii)In 1977 (4) SCC 2262 in the case of Chander Kali Bai andothers v. Jagdish Singh Thakur and another, the Supreme Court hasheld as under: https://hcservices.ecourts.gov.in/hcservices/ "6.... In Siddik Mahomed Shah v. Mt Saran1 it hasbeen pointed out that where a claim has never been made inthe defence presented on amount of evidence can be lookedinto upon a plea which was never put forward. If it couldbe so even at the trial stage, undoubtedly, such a newquestion of fact could not be entertained at any appellatestage. This decision has been followed by this Court inBhagat Singh v. Jaswant Singh. To the same effect is theview expressed in another decision of this Court in BachanSingh v. Dhian Dass. Hegde, J. pointed out in para 6 of thejudgment that a contention involving determination ofquestions of fact ought not to have been allowed to beraised for the first time in the second appeal in the HighCourt. In this case we may add further that neither anyissue was struck nor was any evidence adduced by theparties on this question. The case proceeded to trial onthe admitted footing that the business which the plaintiffwanted to shift to the suit shop was his business."(iii)This Court, in yet another judgment in 1995 Supp. MLJ599 in the case of Rajam Gopalakrishnan vs. Kumudam and another, hasheld as under:"12.... The appellant contends that time was theessence of the contract and the sale ought to have beenconcluded within the extended period under Ex.P2. Ex.P1agreement of sale was executed between the plaintiff andthe defendant on 12.07.1979 in respect of the suit propertyto sell the same for a consideration of Rs.2,05,000. A sumof Rs.25,000 was paid as advance by the plaintiff to thedefendant on the same day. Three months' time was fixed inEx.P1 for completion of the sale. Again, the period forcompletion of sale was extended by 45 days i.e. From12.10.1979 to 25.11.1979 by mutual agreement between theparties under Ex.P2. The sale was not completed till25.11.1979. For the notice sent by the plaintiff underEx.P3 dated 08.02.1979 calling upon the defendant toapprove the draft sale deed, and register and documentafter receiving the balance of sale consideration, thedefendant has sent reply under Ex.P5 stating that thedefendant is prepared to sell the property without vacantpossession as she is unable to get vacant possession. So,the conduct of the defendant as evidenced by Ex.P5 is tothe effect that the parties were willing for extension oftime and there was no mutual understanding between theparties that time was made essence of the contract. Theagreement is with regard to sale of immovable property. https://hcservices.ecourts.gov.in/hcservices/ So, the principle, time is the essence of the contract isnot normally applicable. Further, there is no recital inEx.P1, agreement that time is the essence of contract.Clause 5 of Ex.P1 recites that the sale should be completedwithin a period of three months from the date thereofunless otherwise agreed upon is writing. Clause 3 of Ex.P1states that the vendor shall deliver vacant possession ofthe suit property on or before the date of registration ofthe sale deed. Clause 6 of Ex.P1 states that the vendorshall discharge the mortgage debt due under the deed ofmortgage in faovur of South Madras Co-operative HousingSociety. The defendant who has received the advance amountof Rs.25,000/- from the plaintiff has discharged thatmortgage. She has got back the original mortgage deeddocument Ex.P12 on 16.10.1979 with the endorsement ofdischarge dated 16.10.1979."(iv)The Bombay High Court in AIR 2000 Bombay 410 in the case ofSwarnam Ramachandran and another vs. Aravacode Chakungal Jayapalanhas held as under:"14.... The law on the point is well settled.Ordinarily, time is not the essence of a contract for thesale of immovable property. The parties, in a given casemay make time of the essence either expressly in termswhich unmistakably provide unmistakably that they intendedto do so. Alternately, making of time as the essence of acontract may be inferred from the nature of the contract,the property or the surrounding circumstances. A merestipulation in a contract laying down the time forperformance is not sufficient to make time the essence of acontract for sale of immovable property. A party to acontract cannot by his unilateral act make time of theessence unless the circumstances are such as wouldestablish that the other party to the contract had delayedor defaulted in the performance of his obligations underthe agreement."(v)In yet another judgment of the Supreme Court reported inAIR 2002 SC 771 in the case of P.Purushottam Reddy and another vs.M/s.Pratap Steels Ltd., it was held as under:"The issue as to whether time is of the essence of thecontract in contracts for sale of immovable property cameup for the consideration of the Constitution Bench and itwas held:It is a well-accepted principle that in the caseof sale of immovable property, time is never regardedas the essence of the contract. In fact, there is apresumption against time being of the essence of the https://hcservices.ecourts.gov.in/hcservices/ contract. This principle is not in any way differentfrom that obtainable in England. Under the law ofequity which governs the rights of the parties in thecase of specific performance of contract to sell realestate, law looks not at the letter but at thesubstance of the agreement. It has to be ascertainedwhether under the terms of the contract the partiesnamed a specific time within which completion was totake place, really and in substance it was intendedthat it should be completed within a reasonable time.An intention to make time the essence of the contractmust be expressed in unequivocal language.***25. ... in the case of sale of immovableproperty there is no presumption as to time being theessence of the contract. Even if it is not of theessence of the contract the Court may infer that itis to be performed in a reasonable time if theconditions are:1. From the express terms of the contract;2. from the nature of the property; and3. from the surrounding circumstances, for example: the object of making the contract.”(vi)In AIR 2003 SC 1905 in the case of Bondar Singh and othersvs. Nihal Singh and others, it was held by the Supreme Court asfollows:"7. As regards the plea of sub-tenancy (shikmi) arguedon behalf of the defendants by their learned counsel, firstwe may note that this plea was never taken in the writtenstatement the way it has been put forth now. The writtenstatement is totally vague and lacking in materialparticulars on this aspect. There is nothing to supportthis plea except some alleged revenue entries. It issettled law that in the absence of a plea no amount ofevidence led in relation thereto can be looked into.Therefore, in the absence of a clear plea regarding sub-tenancy (shikmi), the defendants cannot be allowed to buildup a case of sub-tenancy (shikmi). Had the defendants takensuch a plea it would have found place as an issue in thesuit. We have perused the issues framed in the suit. Thereis no issue on the point."(vii)In one another judgment of the Supreme Court reportedin AIR 2003 SC 4319 in the case of Rajagopal (dead) by L.Rs. vs.Kishan Gopal and another, it was held as under: https://hcservices.ecourts.gov.in/hcservices/ "9.... As such a case was never pleaded in theplaint, there was no occasion for the defendants to pleadin the written statement as to who gave Goverdhan Das inadoption and accordingly, the defendants in the writtenstatement only denied that adoption was in“dwyamushyayana” form and according to them, the same wasin ordinary form. In the absence of any pleadingwhatsoever on the question as to whether Goverdhan Das wasgiven in adoption by his father Moti Lal or brother KishanLal, there was no lis between the parties on thisquestion, as such courts could not have gone into the sameeven if some evidence was adduced and the lower appellatecourt rightly decided this question against theplaintiffs. Reference in this connection may be made to adecision of the Privy Council in the case of SiddikMahomed Shah v. Mt. Saran1 in which it was held (AIR p. 57) that “where a claim has been never made in thedefence presented no amount of evidence can be looked intoupon a plea which was never put forward”. The said casehas been referred to by this Court with approval in thecase of Bhagat Singh v. Jaswant Singh2. In that case, someevidence was led but the High Court refused to go into thequestion observing that where no plea was taken, it cannotbe said that there was any lis between the partiesthereon. This Court upheld the decision of the High Courtobserving that the same was supported by a decision of theJudicial Committee in the case of Siddik Mahomed Shah1.Thus we do not find any error in the findings recorded bythe first appellate court on this point."6.In response, learned counsel for the respondent submittedthat the allegation of the appellant that he was ready and willing toperform his obligation is totally false. She further submitted thatthe period fixed in the agreement has expired and therefore, theappellant is not entitled to the relief of specific performance underthe agreement. According to the learned counsel, the Trial Court hasrightly dismissed the suit taking into the account the fact that theappellant has committed a breach of contract by not executing thesale within the time fixed in the agreement and also within theperiod given in the notice. Learned counsel finally submitted thatthe appeal deserves dismissal on the ground that "time is the essenceof contract".6a.In support of her case, the counsel for the respondent hasrelied on the following judgments:(i)In the case of AIR 1967 SC 868 in the case ofGomathinayagam Pillai and others vs. Palaniswami Nadar, the SupremeCourt has held as under: https://hcservices.ecourts.gov.in/hcservices/ "Section 55 of the Contract Act which deals with theconsequences of failure to perform an executory contract ator before the stipulated time provides by the firstparagraph:“When a party to a contract promises to do a certainthing at or before a specified time, or certain things ator before specified times, and fails to do any such thingat or before the specified time, the contract, or so muchof it as has not been performed, becomes voidable at theoption of the promisee if the intention of the parties wasthat time should be of the essence of the contract.”It is not merely because of specification of time ator before which the thing to be done under the contract ispromised to be done and default in compliance therewith,that the other party may avoid the contract. Such an optionarises only if it is intended by the parties that time isof the essence of the contract. Intention to make time ofthe essence, if expressed in writing, must be in languagewhich is unmistakable: it may also be inferred from thenature of the property agreed to be sold, conduct of theparties and the surrounding circumstances at or before thecontract. Specific performance of a contract willordinarily be granted, notwithstanding default in carryingout the contract within the specified period, if havingregard to the express stipulations of the parties, natureof the property and the surrounding circumstances, it isnot inequitable to grant the relief. If the contractrelates to sale of immovable property, it would normally bepresumed that time was not of the essence of the contract.Mere incorporation in the written agreement of a clauseimposing penalty in case of default does not by itselfevidence an intention to make time of the essence. InJamshed Khodaram Irani v. Burjorji Dhunjibhai 1 the JudicialCommittee of the Privy Council observed that the principleunderlying Section 55 of the Contract Act did not differfrom those which obtained under the law of England asregards contracts for sale of land. The Judicial Committeeobserved:“Under that law equity, which governs therights of the parties in cases of specificperformance of contracts to sell real estate, looksnot at the letter but at the substance of theagreement in order to ascertain whether the parties,notwithstanding that they named a specific timewithin which completion was to take place, reallyand in substance intended more than that it should https://hcservices.ecourts.gov.in/hcservices/ take place within a reasonable time. TheirLordships are of opinion that this is the doctrinewhich the section of the Indian Statute adopts andembodies in reference to sales of land.""(ii)In yet another judgment reported in AIR 1993 SC 1742 in thecase of Chand Rani (dead) by L.Rs. vs. Kamal Rani (dead) by L.Rs.,the Supreme Court has held as under:"19.... When a party to a contract promises to do acertain thing at or before a specified time, or certainthings at or before specified times, and fails to do anysuch thing at or before the specified time, the contract,or so much of it as has not been performed, becomesvoidable at the option of the promisee if the intention ofthe parties was that time should be of the essence of thecontract. It is not merely because of specification of time ator before which the thing to be done under the contract ispromised to be done and default in compliance therewith,that the other party may avoid the contract. Such anoption arises only if it is intended by the parties thattime is of the essence of the contract. Intention to maketime of the essence, if expressed in writing, must be inlanguage which is unmistakable: it may also be inferredfrom the nature of the property agreed to be sold, conductof the parties and the surrounding circumstances at orbefore the contract. Specific performance of a contractwill ordinarily be granted, notwithstanding default incarrying out the contract within the specific period, ifhaving regard to the express stipulations of the parties,nature of the property and the surrounding circumstances,it is not inequitable to grant the relief. If the contractrelates to sale of immovable property, it would normally bepresumed that time was not of the essence of the contract.Mere incorporation in the written agreement of a clauseimposing penalty in case of default does not by itselfevidence an intention to make time of the essence. ... "24.From an analysis of the above case-law it isclear that in the case of sale of immovable property thereis no presumption as to time being the essence of thecontract. Even if it is not of the essence of the contractthe Court may infer that it is to be performed in areasonable time if the conditions are:1.From the express terms of the contract;2.from the nature of the property; and https://hcservices.ecourts.gov.in/hcservices/

3.from the surrounding circumstances, for example: the object of making the contract. "(iii)In yet another judgment of the Supreme Court reportedin 1997 (1) CTC 628 in the case of K.S.Vidyanandam and others vs.Vairavan, it was held as under:"10. It has been consistently held by the courts inIndia, following certain early English decisions, that inthe case of agreement of sale relating to immovableproperty, time is not of the essence of the contract unlessspecifically provided to that effect. The period oflimitation prescribed by the Limitation Act for filing asuit is three years. From these two circumstances, it doesnot follow that any and every suit for specific performanceof the agreement (which does not provide specifically thattime is of the essence of the contract) should be decreedprovided it is filed within the period of limitationnotwithstanding the time-limits stipulated in the agreementfor doing one or the other thing by one or the other party.That would amount to saying that the time-limits prescribedby the parties in the agreement have no significance orvalue and that they mean nothing. Would it be reasonable tosay that because time is not made the essence of thecontract, the time-limit(s) specified in the agreement haveno relevance and can be ignored with impunity? It wouldalso mean denying the discretion vested in the court byboth Sections 10 and 20. As held by a Constitution Bench ofthis Court in Chand Rani v. Kamal Rani1: (SCC p.528, para25)“... it is clear that in the case of sale ofimmovable property there is no presumption as totime being the essence of the contract. Even ifit is not of the essence of the contract, theCourt may infer that it is to be performed in areasonable time if the conditions are (evident?):(1) from the express terms of the contract; (2)from the nature of the property; and (3) from thesurrounding circumstances, for example, theobject of making the contract.”In other words, the court should look at all therelevant circumstances including the time-limit(s)specified in the agreement and determine whether itsdiscretion to grant specific performance should beexercised. " https://hcservices.ecourts.gov.in/hcservices/ (iv)This court in 1998 (1) CTC 186 in the case of Vasantha andothers vs. M.Senguttuvan has held as under:"15.... "The respondent has claimed a decree forspecific performance and it is for him to establish that hewas, since the date of the contract, continuously ready andwilling to perform his part of the contract. If he failsto do so, his claim for specific performance must fail. Asobserved by the Judicial Committee of the Privy Council inArdeshir Mama vs. Flora Season." In a suit for specificperformance, on the other hand, he treated and was requiredby the Court to treat the contract as still subsisting. Hehad in that suit to allege, and if the fact was traversed,he was required to prove a continuous readiness andwillingness from the date of the contract to the time ofthe hearing, to perform the contract on his part. Failureto make good that averment brought with it the inevitabledismissal of his suit. The respondent must in a suit forspecific performance of an agreement plead and prove thathe was ready and willing to perform his part of thecontract continuously between the date of the contract andthe date of hearing of the suit."Even if for single day, plaintiff-agreement holder isnot ready to take the sale deed, the equitable remedyshould not be granted. Readiness and willingness must bethere continuously from the date of agreement upto the dateof hearing. In this case, the concurrent finding is thatthe appellant was not ready to take the sale deed and thatis proved by Ex.A3. 18.Even if we accept the finding of the trial Courtthat the appellant has sufficient funds since he had put upconstruction, that will not show his willingness.'Willingness' must be to implement the contract inaccordance with terms, within the stipulated period, orwithin a reasonable time thereafter. ..."(v)In yet another judgment reported in 1999 (III) CTC 724 inthe case of S.Maruthai and another vs. Gokuldoss Dharam Doss and fourothers, this Court has held as under:"23.Being in possession of the property, assuming heis in possession, may enure to his benefit to contend in asuit for possession filed by the owners that he is inpossession in part performance of the contract; that he hasdone some act in furtherance of the contract and that he is https://hcservices.ecourts.gov.in/hcservices/ ready and willing to perform the contract and thereby tryto protect his possession. This plea of being inpossession will not be available to him to save his suitfor specific performance from the law of limitation. UnderArticle 54 of the Limitation Act three years is prescribedas the time limit and it starts to run from the date fixedfor the performance of the contract or if no such date isfixed when the plaintiff has notice that performance isrefused. In this case admittedly a date is fixed namelythree months from 18.07.1975 and therefore the time to filethe suit on that contract started running from thecommencement of 18.10.1975. Under Section 9 of theLimitation Act when once time has begun to run nosubsequent disability or inability to institute a suit ormake an application would stop it. Assuming that the timeof three months fixed under the contract was not really thetime in the mind of the parties and in fact the time wouldstart running as against the buyer only when the vendorsperform all their obligations under the contract of sale,yet inasmuch as I have found that the vendors in this casehave performed all their obligations under the contract ofsale within the period three months itself, the judgmentreported in Lakshminarayana vs. Singaravelu, AIR 1963 Mad24, is of no help in this case. It is no doubt true thatin the suit for possession and in the written statement ofthe third defendant in the suit for specific performancethere is an admission that the vendors have adopted theagreement though they were not parties to it. ... "(vi)In 1999 (1) CTC 409 in the case of V.S.Palanichamy ChettiarFirm vs. C.Alagappan, it was held by the Supreme Court as under:"16.The agreement of sale was entered into as farback on 16-2-1980, about 19 years ago. No explanation isforthcoming as to why the balance amount of considerationcould not be deposited within the time granted by the Courtand why no application was made under Section 28 of the Actseeking extension of time of this period. Under Article 54of the Limitation Act, 3 years’ period is prescribed forfiling the suit for specific performance of a contract ofsale from the date of the agreement or when the cause ofaction arises. Merely because a suit is filed within theprescribed period of limitation does not absolve thevendee-plaintiff from showing as to whether he was readyand willing to perform his part of the agreement and ifthere was non-performance, was that on account of anyobstacle put by the vendor or otherwise. Provisions togrant specific performance of an agreement are quitestringent. Equitable considerations come into play. Thecourt has to see all the attendant circumstances including https://hcservices.ecourts.gov.in/hcservices/ if the vendee has conducted himself in a reasonable mannerunder the contract of sale. That being the position of lawfor filing the suit for specific performance, can thecourt, as a matter of course, allow extension of time formaking payment of balance amount of consideration in termsof a decree after 5 years of passing of the decree by thetrial court and 3 years of its confirmation by theappellate court? It is not the case of the respondentdecree-holders that on account of any fault on the part ofthe vendor judgment-debtor, the amount could not bedeposited as per the decree. That being the position, ifnow time is granted, that would be going beyond the periodof limitation prescribed for filing of the suit forspecific performance of the agreement though this provisionmay not be strictly applicable. It is nevertheless animportant circumstance to be considered by the Court. Thatapart, no explanation whatsoever is coming from therespondent decree-holders as to why they did not pay thebalance amount of consideration as per the decree exceptwhat the High Court itself thought fit to comment which iscertainly not borne out from the record. Equity demandsthat discretion be not exercised in favour of therespondent decree-holders and no extension of time begranted to them to comply with the decree."(vii)In one another judgment of this court reported in 2000(IV) CTC 278 in the case of Indravathi vs. Kamala, it is held asunder:"37.As held in Vasantha vs. M.Senguttuvan, 1997 (2)MLJ 576: 1997 (2) LW 820, referred to above, "even if for asingle day, the plaintiff is not ready to take the saledeed specific performance cannot be ordered." Readinessand willingness should be there continuously from the dateof agreement till date of suit. No acceptable reason hasbeen given by the respondent as to why the secondinstalment and the third instalment were not properly paidon the stipulated dates and why the balance of Rs.60,000/-was not offered on 31.01.1980. Time was clearly agreed tobe the essence of the contract and P.W.1 also admits it tobe so. The respondent who has failed to prove readinessand willingness cannot claim specific performance.38.From the various decisions referred to above, itis clear that there cannot be a sweeping conclusion incontracts relating to immovable property that time cannotbe said to be essence of the contract. It depends upon theconsensus between the parties to the contract. Thedecision reported in K.S.Vidyanandam vs. Vairavan, J.T.1997 (2) SC 375 is clearly applicable. Specificperformance cannot be ordered merely because they are filed https://hcservices.ecourts.gov.in/hcservices/ within the period of limitation, especially where timelimits have been stipulated in the agreement forperformance of certain obligations. To disregard the timestipulation would amount to ignoring the understandingbetween the parties as though it is of no significance orvalue."7.Heard the learned counsel on either side and perused thedocuments on record.8.From the pleadings, it is seen that the suit propertybelongs to the respondent and she agreed to sell the same to theappellant for a sale consideration of Rs.40,100/- and made anagreement of sale between them on 03.05.1987, on condition that thesale has to be completed before the end of the Tamil month 'Aavani'1987. The respondent has also received a sum of Rs.10,000/- asadvance from the appellant. Though according to the appellant, hewas ready and willing to execute the sale by paying the balance saleconsideration of Rs.30,100/- and he had also caused lawyer's noticeon 17.04.1989 to the respondent calling upon her to execute the saleand since the respondent had not come forward to complete the sale,the appellant had to file the suit in question, the respondentrebutted the same in the written statement, stating that she enteredinto the contract for sale of the suit property under agreement dated03.05.1987 with the appellant as she was having a pressing need formoney at that time; her sons were young and she had to incur heavyexpenditure for their education; her husband was also unemployed thenand it was only in those pressing circumstances, she offered to sellthe property. It is also stated in the written statement that hadthe appellant performed his part of contract as per the termsembodied in the agreement dated 03.05.1987, the respondent would havesolved all her pressing problems, but the appellant put off undersome pretext of other, particularly was going about telling that theproperty in question was likely to be acquired by the Housing Boardand therefore he was not inclined to go ahead with the sale. Thewritten statement further goes to the effect that in spite of thefact that the respondent got over her difficulties, yet, she sent anotice to the appellant on 27.02.1988, calling upon him to pay thebalance of Rs.34,180/- within 15 days from the date of notice viz.,27.02.1988. She had also notified in the notice that the appellantthat the original document of sale deed dated 01.07.1981 should bereturned to her in the event of his not complying with the demandmade. However, the appellant deliberately evaded the service of thesaid notice on him. To the said notice, the appellant sent a legalnotice on 17.04.1989 for which the respondent sent a reply on30.05.1989, stating that the period fixed in the agreement wasexpired and therefore the appellant was not entitled to the relief ofspecific performance under the agreement. In the said reply, it wasalso stated by the respondent that appellant had forfeited the sum https://hcservices.ecourts.gov.in/hcservices/ paid as advance, as he committed a breach of contract and that theclaim of the appellant was barred by time, as the time was made theessence of contract and as such the appellant was not entitled to adecree for specific performance.9.An analysis of the pleadings would reveal that the partieshave no dispute regarding Ex.A-1, Sale Agreement, dated 03.05.1987,and the payment of Rs.10,000/- as advance. As per the saidagreement, the sale has to be completed before the end of the Tamilmonth 'Aavani' 1987 by paying the balance sale consideration ofRs.30,100/-. Therefore, the contention of the learned counsel for theappellant that there was a mutual agreement by the parties that thetime was not the essence of the contract is rejected. It is alsoseen the respondent sent a notice to the appellant on 27.02.1988,much prior to the notice of the appellant dated 17.04.1989, callingupon him to pay the balance of Rs.34,180/- within 15 days from thedate of notice viz., 27.02.1988, wherein she had also notified in thenotice that the original document of sale deed dated 01.07.1981should be returned to her in the event of his not complying with thedemand made. In view of the earlier notice of the respondent to theappellant dated 27.02.1988, the later notice of the appellant to therespondent will not have much reliance. 10. When a party to a contract promises to do a certainthing at or before a specified time, or certain things at or beforespecified times, and fails to do any such thing at or before thespecified time, the contract, or so much of it as has not beenperformed, becomes voidable at the option of the promisee, if theintention of the parties was that time should be of the essence ofthe contract.11.A Constitution Bench of the Supreme Court in AIR 1993SC 1742 in the case of Chand Rani (dead) by L.Rs. vs. Kamal Rani(dead) by L.Rs., has held that when a party to a contract promises todo a certain thing at or before a specified time, or certain thingsat or before specified times, and fails to do any such thing at orbefore the specified time, the contract, or so much of it as has notbeen performed, becomes voidable at the option of the promisee if theintention of the parties was that time should be of the essence ofthe contract.12. Under the law of equity which governs the rights of theparties in the case of specific performance of contract to sell realestate, law looks not at the letter but at the substance of theagreement. It has to be ascertained whether under the terms of thecontract the parties named a specific time within which completionwas to take place, really and in substance it was intended that itshould be completed within a reasonable time. An intention to maketime the essence of the contract must be expressed in unequivocal https://hcservices.ecourts.gov.in/hcservices/ language, which, admittedly, in this case is present in Ex.A-1, SaleAgreement, and not adhered to by the appellant.13. Following the ratio laid down by the Supreme Court inChand Rani's case and Gomathinayagam Pillai's case (referred above)and in view of my discussion in the foregoing paragraphs, this appealis dismissed, confirming the judgment and decree of the Court below.No costs. sd/-Asst.Registrar/true copy/Sub Asst.Registrarabe/dixitTo :The Subordinate Judge, Erode.Copy toThe Record Keeper, VR Section,High Court, Madras.+1 cc To Mrs.AL.Gandhimathi, Advocate, SR.35543+1 cc To Mr.P.Valliappan, Advocate, SR.35239A.S.No.1051 of 1994gv [co]gkg/18.7