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PETITIONER: GOMATHINAYAGAM PILLAI AND ORS.

       Vs.

RESPONDENT: PALLANISWAMI NADAR

DATE OF JUDGMENT: 02/09/1966

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. BACHAWAT, R.S.

CITATION:  1967 AIR  868            1967 SCR  (1) 227  CITATOR INFO :  R          1977 SC1005  (5)

ACT: Contract,  Act, 1872, s., 55-Time to be regarded as  essence of  contract--Conditions  for-Specific   performance-Whether decree can be granted unless party claiming can show he  was ready and willing at all times to perform his part.

HEADNOTE: G  and  his  son C, the first and  second  appellants,  were owners of a plot of land which they verbally agreed to  sell to  the  respondent  on March 5, 1959, at  a  time  when  P, another  son  of G, was on trial for murder and  the  latter urgently  needed  funds for his defence.  On that  date,  as against the total agreed price of Rs. 15,106 the  respondent paid them Rs. 1006 as an advance amount for which a  receipt was  executed by the two appellants.  No time was fixed  for the completion of the sale.  On April 4, 1959, upon  receipt of another amount of Rs. 2,000 from the respondent, the  two appellants executed a writing stipulating that the sale deed would be executed on or before April 15, 1959.  This writing also  incorporated a default clause imposing a penalty  upon the  party failing to complete the sale by the agreed  date. The  sale  deed was however not executed by  that  date  for which different reasons, were given by each of the  parties. On  April 15, another agreement was executed whereby it  was agreed  to complete the sale by 30th April 1959 on the  same terms and conditions, but it was not completed by that  date either.   On July 30, 1959, appellants 1 and 2 wrote to  the respondent stating that the agreement was subject to a  spe- cific  undertaking  that  time was of  the  essence  of  the agreement  and since the respondent had failed to carry  out the  agreement  by  April  30,  1959,  the  agreement  stood cancelled   and   the  advance   amount   stood   forfeited. Thereafter on July 9, 1959 appellants 1 and 2 agreed to sell the  land  to  the 3rd appellant.  On  August  3,  1959  the respondent  deposited the balance of the amount  payable  by him in a bank and informed the appellants that he was  ready and  willing to carry out his part of the contract-, and  he called  upon  appellants 1 and 2 to execute  the  sale  deed within  3 days against payment of the balance of the  price.

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The  appellants having failed to execute the sale  deed  the respondent  instituted the present suit against them  for  a decree for specific performance of the agreement. The High Court reversed the decision of the Trial Court, and decreed   the   claim  of  the   respondent   for   specific performance. On appeal to this Court, HELD:     (By   Wanchoo   and  Shah,   JJ.,   Bachawat,   J. dissertation) Although the High Court had rightly held  that time was not of the essence of the contract, the finding  of the  Trial Court that after entering into the  contract  the respondent was not ready and willing to perform his part  of the  contract  must  be  accepted;  a  decree  for  specific performance of the contract could not therefore be granted. The agreements dated April 4 and April 15 did not express in unmistakable language that time was to be of the essence and existence  of  the  default  clause  would  not  necessarily evidence  such  intention.  Fixation of  the  period  within which  the  contract is to be performed does  not  make  the stipulation  as  to  time of the essence  of  the  contract. Intention to make 228 time  of  the essence of the contract may  be  evidenced  by either  express stipulations or by circumstances  which  are sufficiently  strong  to displace the  ordinary  presumption that  in a contract of sale of land stipulations as to  time are  not of the essence.  In the present case theme  was  no express stipulation, and the circumstances were not such  as to  indicate that it was the intention of the  parties  that time  was  intended to be of the essence, of  the  contract. [233E-H; 238 E-F] Jamshed  Khodaram  Irani v. Burjorji Dhunjibhai,  I.L.R.  40 Bom.  289  and Stickney v. Keeble.  L.R.  [1915]  A.C.  386, referred to. Before   he   could  be  awarded  a  decree   for   specific performance,  the respondent had to prove his readiness  and willingness continuously from the date of the contract  till the date of hearing of the suit to complete his part of  the contract,  and if he failed in that, his suit was liable  to fail.   The Trial Court had found on the evidence  that  the respondent  was at no time ready and willing to perform  his part  of  the contract.  This finding was  never  challenged before  the High Court and the High Court did not hold  that the finding was incorrect. [234 C] Ardeshir Mamna v. Flora Sassoon, L.R. 55 I.A. 360,  referred to. (Per  Bachawat J. dissenting) : There was no specific  issue on the question whether the respondent was ready and willing to perform the contract.  The Trial Court was clearly  wrong in  inferring that the respondent was not ready and  willing to  perform the contract from the fact that from  April  30, 1959  upto  the middle of July 1959 the respondent  had  not taken  any  steps  in the matter and  from  his  failure  to explain  the delay.  If the respondent was guilty of  aches, it  was the duty of the appellants to fix a reasonable  time for the completion of the sale.  Mere delay, short of waiver or  abandonment of the contract, is no ground  for  refusing relief,  nor  is  it  evidence of  lack  of  readiness  -and willingness.  The materials on the record clearly  indicated that  the  ’respondent was at all material times  ready  and willing to perform the contract. [239 E; 241 D-F] Jamshed  v.  Burjorji, (1916) L.R. 43 I.A. 26  and  Bank  of India Ltd. v.  Jamsetji  A. H. Chiney and M/s.   Chinoy  and Company, (1949) L.R.77   I.A. 76, referred to.

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JUDGMENT: CIVIL,  APPELLATE  JURISDICTION : Civil Appeal No.  1043  of 1965. Appeal  by special leave from the judgment and  order  dated December  17, 1964 of the Madras High Court in  Appeal  Suit No. 375 of 1961. H.   R. Gokhale and R. Ganapathy Iyer, for the appellants. A.   K. Sen and R. Gopalakrishnan, for the respondent. The Judgment Of WANCHOO and SHAH, JJ. was delivered by SHAH, J. BACHAWAT, J. delivered a dissenting Opinion. Shah, J. This appeal with special leave is filed against the judgment of the High Court of Judicature at Madras reversing the  decree  of  the  Subordinate  Judge,  Ramnathapuram  in original suit No. 30 of 1959.  Gomathinayagam Pillai and his son  Chinnathambia hillai-hereinafter collectively  referred to as appellants 229 1 & 2 -were owners of a plot of land Survey No. 1155/2-3  in village Periyakulam, District Ramnathapuram.  In March 1959, Palaniappa  Pillai son of the first appellant  was  standing trial in a Criminal Court for the offence, of murder and the first  appellant  was in need of funds to  defend  him.   On March  5, 1959 appellants 1 & 2 agreed verbally to  sell  S. No.  II  5 5/2-3 to Palaniswami Nadar  -respondent  in  this appeal-for  Rs.  15,106/- and received Rs.  1006/-  in  part payment  of the price.  No time was fixed for completion  of the sale.  A receipt Ext.  A-1 was executed by appellants  1 & 2 reciting  that  the land was  agreed  to  be  sold  by appellants 1 & 2 to the respondent and that Rs. 1006/-  were received  as "advance amount." On March 31, 1959  Palaniappa Pillai was convicted of the offence of murder and  sentenced to imprisonment for life.  On April 4, 1959 appellants 1 & 2 received  Rs.  2,000/- from the respondent  and  executed  a writing  stipulating that the sale deed will be executed  on or  before April 15, 1959.  It was recited in  that  writing that  appellants 1 & 2 had agreed to sell on March  5,  1959 and had received Rs. 1006/- on that date, and Rs. 2,000/- on April 4, 1959 and it was further recited that appellants 1 & 2  "s hall  settle the aforesaid sale within  2nd  Chittiral, Vikhari (15th April 1959) in favour of" the respondent "that the  amount  shall  be paid as per the  particulars  of  the receipt of sale consideration; that even though"  appellants 1 & 2 "are prepared to settle the sale accordingly, if"  the respondent  "raises  any objection whatever  to  settle  the sale, he shall lose the advance amount of Rs. 3006/- (Rupees Three  thousand  and six only); and that, even  though"  the respondent "is prepared to settle the sale, if" appellants 1 &  2 "raise any objection whatever to settle the sale,  they shall  add  a  sum of Rs. 3000/- to  the  aforesaid  advance amount  of  Rs. 3006/- and pay in all, a sum of  Rs.  6006/- (Rupees six thousand and six only) to" the respondent.   The agreement  clearly  incorporated a default  clause  imposing penalty upon the party failing to carry out the terms of the contract.   But the sale deed was not executed on or  before April 15, 1959.  Different reasons were given by the parties for not completing the sale by the date stipulated.  It  was the  case of the respondent that appellants 1 & 2 wanted  to consult  a lawyer and to ascertain whether it was  necessary to   secure  attestation  by  the  first   appellant’s   son Palaniappa and his daughters because the property originally belonged to Ulagammal, wife of the first appellant.  It  was the  case of appellants 1 & 2 that they were full owners  of the  land  agreed to be sold and that the  children  of  the

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first  appellant  were not interested in the  land  and  the respondent  set up false excuses and neglected to  take  the sale  deed  as  stipulated.   On  April  15  1959,   another agreement was executed.  It was recited in the agreement :               As   certain  unforeseen  circumstances   have               arisen  to settle the sale on this day as  has               been fixed as per the               230               Agreement  executed  on 4th April 1959  by  us               three Individuals, we have decided to  consult               the Vakil so as to settle the sale within 30th               April 1959 and to settle the sale and to  bind               ourselves  as per the conditions mentioned  in               the previous Agreement should whomsoever  fail               to finalise the sale." The  sale was not completed even on April 30,1959.  On  July 30,1959,   appellants  1  &2  addressed  a  letter  to   the respondent stating that the agreement of sale was subject to a "specific undertaking" that time was of the essence of the agreement  and it was twice extended at the request  of  the respondent, and since the respondent had failed to carry out the  agreement even by April 30, 1959, the  agreement  stood cancelled  and  the  amount  of  Rs.  3006/-  paid  by   the respondent stood forfeited.  On July 31, 1959 the Appellants agreed  to sell the land to P.K. Banarusami  Naidu-who  will hereinafter be referred to as appellant No. 3. On August  3, 1959  the  respondent deposited the balance payable  by  him under  the agreement of sale in a Bank ,and by letter  dated August  4, 1959 informed appellants 1 & 2 that time was  not of  the essence, and that he was ready and willing to  carry out his part of the contract, and the respondent called upon appellants 1 & 2 to execute a sale deed within three days of the receipt of the letter against payment of the balance  of the price.  He also offered to purchase the stamp paper  and to have the sale deed prepared for execution. Appellants 1 & 2 having failed to execute the sale-deed  the respondent  instituted original suit No. 30 of 1959  in  the Court  of  the  Subordinate  Judge,  Ramnathapuram,  against appellants, 1, 2 & 3 and one Sethuramalingam Pillai (who was implemented  on  the ground that he was a mortgagee  of  the property  by  deed executed on September 15,  1952  for  Rs. 6000/-)  for  a  decree  for  specific  performance  of  the agreement, alleging that he was at all material times  ready and  willing  to  perform his part of the  contract  and  to obtain  the  sale  deed and it was only at  the  request  of appellants  1 & 2 that execution of the sale deed was  twice postponed and that appellants 1 & 2 had committed breach  of the contract.  The suit was resisted by appellants 1, 2 & 3. The  learned  Trial Judge dismissed the  suit  holding  that under the agreements dated April 4, 1959 and April 15,  1959 time  was of the essence, that even if it be held  otherwise the  respondent "was never ready and willing to perform  his part  of  the contract", that he had  committed  default  in carrying out his part of the bargain, that delay on the part of the respondent to claim his rights under the agreement of sale  had  caused  the interest of the  third  appellant  to intervene  and on that account the respondent  was  estopped from enforcing the agreement, and that delay was evidence of abandonment  of  the contract or of waiver of the  right  to ,enforce the contract.  The Trial Judge accordingly rejected the  ,claim of the respondent for specific performance,  but awarded on                             231 a concession made by appellants 1 & 2 a decree for  recovery of Rs. 3006/- with interest at 6 per cent. from the date  of

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the  decree  till  realisation against  appellants  1  &  2. Against  the  decree, the respondent appealed  to  the  High Court  of Judicature at Madras.  The High Court opined  that time  was not of the essence of the contract, that delay  on the  part of the respondent in claiming completion  of  sale between April 30, 1959 and July 30, 1959 was not undue delay and  there  was  neither abandonment of  the  contract,  nor waiver,  and that "even as a defaulting party", as found  by the Trial Court, the respondent was entitled to a decree for specific  performance  of the agreement of sale.   The  High Court  accordingly reversed the decree passed by  the  Trial Court, and decreed the claim of the respondent for  specific performance. In this appeal with special leave, two questions fall to  be determined:  (1) whether under the agreement of  sale,  time was   of  the  essence;  and  (2)  whether  as  alleged   by appellants,  1,  2  & 3, the respondent was  not  ready  and willing to perform his part of the contract, and was on that account disentitled to a decree for specific performance. The  facts  which  have  a material  bearing  on  the  first question  have  already  been set out.  Section  55  of  the Contract Act which deals with the consequences of failure to perform  an executory contract at or before  the  stipulated time provides by the first paragraph:               "When  a party to a contract promises to do  a               certain  thing at or before a specified  time,               or  certain  things  at  or  before  specified               times,  and fails to do any such thing  at  or               before the specified time, the contract, or so               much of it as has not been performed,  becomes               voidable  at the option of the promise if  the               intention of the parties was that time  should               be of the essence of the contract." It  is  not merely because of specification of  time  at  or before  which  the thing to be done under  the  contract  is promised  to  be done and default in  compliance  therewith, that the other party may avoid the contract.  Such an option arises only if it is intended by the parties that time is of the essence of the contract.  Intention to make time of  the essence, if expressed in writing, must be in language  which is unmistakable : it may also be inferred from the nature of the  property agreed to be sold, conduct of the parties  and the  surrounding  circumstances at or before  the  contract. Specific  performance  of  a  contract  will  ordinarily  be granted,   notwithstanding  default  in  carrying  out   the contract  within the specified period, if having  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 contract relates to sale  of immovable property, it would normally  be  presumed that time was not of the 232 ,essence of the contract.  Mere incorporation in the written agreement  of a clause imposing penalty in case  of  default does not by itself evidence an intention to make time of the essence.   In Jamshed Khodaram Irani v. Burjorji  Dhunjibhai (1)  the Judicial Committee -of the Privy  Council  observed that the principle underlying s. 55 of the Contract Act  did not  differ  from  those which obtained  under  the  law  of England as regards contracts for sale of land.  The Judicial Committee observed :               "Under  that  law equity,  which  governs  the               rights  of  the parties in cases  of  specific               performance of contracts to sell real  estate,               looks  not at the letter but at the  substance

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             of the agreement in order to ascertain whether               the parties, notwithstanding that they named a               specific  time within which completion was  to               take  place, really and in substance  intended               more  than that it should take place within  a               reasonable time. . . . Their Lordships are  of               opinion  that this is the doctrine  which  the               section  of  the  Indian  Statute  adopts  and               embodies  in reference to sales of  land.   It               may  be stated concisely in the language  used               by  Lord Cairns in Tilley v. Thomas (1867)  L.               R. 3 Ch. 61               "The  construction is, and must be, in  equity               the  same  as in a Court of law.  A  Court  of               equity   will  indeed  relieve  against,   and               enforce, specific performance, notwithstanding               a  failure to keep the dates assigned  by  the               contract,  either for completion, or  for  the               steps towards completion, if it can do justice               between  the parties, and if (as Lord  Justice               Turner said in Roberts v. Berry (1853) 3 De G.               M. & G. 284), there is nothing in the ’express               stipulations  between the parties, the  nature               of   the   property,   or   the    surrounding               circumstances,’    which   would    make    it               inequitable  to interfere with and modify  the               legal  right.  This is what is meant, and  all               that is meant, when it is said that in  equity               time  is not of the essence of  the  contract.               of  the  three  grounds    mentioned  by  Lord               Justice Turner express stipulations’  requires               no  comment.  The ’nature of the property’  is               illustrated by the case of reversions,  mines,               or  trades.  The  ’surrounding  circumstances’               must  depend on the facts of  each  particular               case."               Their Lordships will add to the statement just               quoted   these  observations.    The   special               jurisdiction of equity to disregard the letter               of  the  contract  in  ascertaining  what  the               parties  to  the contract are to be  taken  as               having really               (1)   I.L.R. 40 Bom. 289.                                    233               and in substance intended as regards the  time               of  its  performance may be  excluded  by  any               plainly  expressed stipulation.  But  to  have               this  effect the language of  the  stipulation               must  show that the intention was to make  the               rights of the parties depend on the observance               of  the  time limits prescribed in  a  fashion               which is unmistakable.  The language will have               this effect if it plainly excludes the  notion               that   these  time  limits  were   of   merely               secondary importance in the bargain, and  that               to  disregard  them  would  be  to   disregard               nothing  that lay as its  foundation.   "Prima               facie,  equity treats the importance  of  such               time  limits as being subordinate to the  main               purpose  of  the parties, and it  will  enjoin               specific performance notwithstanding that from               the  point  of  view of a  Court  of  Law  the               contract  has not been literally performed  by               the  plaintiff  as  regards  the  time   limit               specified."

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The  Trial Court relied upon three circumstances in  support of  its  conclusion  that time was of  the  essence  of  the contract of sale : (i) though no time was prescribed by  the oral  agreement,  in the agreements writing dated  April  4, 1959  and  April 15, 1959 there were  definite  stipulations fixing dates for performance of the contract; (ii) that  the second  and  the third agreements  contained  clauses  which imposed  penalties  upon the party guilty  of  default;  and (iii) that appellants 1 & 2 were in urgent need of money and it  was  to meet their pressing need that  they  desired  to effect sale of the property.  But the agreements dated April 4 and April 15 do not express in unmistakable language  that time  was to be of the essence and existence of the  default clause   will  not  necessarily  evidence  such   intention. Fixation  of the period, within which the contract is to  be performed  does not make the stipulation as to time  of  the essence  of the contract.  It is true that appellants 1 & 2 were badly in need of money, but they had secured Rs. 3006/- from  the  respondent and had presumably  tided  over  their difficulties  at  least temporarily.  There is  no  evidence that   when  the  respondent  did  not  advance   the   full consideration  they  made other  arrangements  for  securing funds for their immediate needs.  Intention to make time  of the  essence  of  the contract may be  evidenced  by  either express   stipulations   or  by  circumstances   which   are sufficiently  strong  to displace the  ordinary  presumption that  in a contract of sale of land stipulations as to  time are  not  of the essence.  In the present case there  is  no express  stipulation, and the circumstances are not such  as to  indicate that it was the intention of the  parties  that time was intended to be of the essence of the contract.   It is true that even if time was not originally of the essence, the  appellants could by notice served upon  the  respondent call  upon him to take the conveyance within the time  fixed and  intimate  that  in  default  of  compliance  with   the requisition the contract will be treated as can- 234 celled.   As observed in Stickney v. Keeble (1) where  in  a contract for the sale of land the time fixed for  completion is  not made of the essence of the contract, but the  vendor has  been  guilty of unnecessary delay,  the  purchaser  may serve  upon  the  vendor a notice limiting  a  time  at  the expiration of which he will treat the contract as at an end. In  the  present case appellants 1 & 2 have served  no  such notice; by their letter dated July 30, 1959 they treated the contract  as  at an end.  If the  respondent  was  otherwise qualified to obtain a decree, for specific performance,  his right could not be determined by the letter of appellants  1 & 2. But  the  respondent  has  claimed  a  decree  for  specific performance  and  it is for him to establish  that  he  was, since  the  date  of the contract,  continuously  ready  and willing to perform his part of the contract.  If he fails to do  so,  his claim for specific performance must  fail.   As observed  by the Judicial Committee of the Privy Council  in Ardeshir Mama v. Flora Sasson(2):               "In  a suit for specific performance,  on  the               other hand, he treated and was required by the               Court   to   treat  the  contract   as   still               subsisting.   He had in that suit  to  allege,               and if the fact was traversed, he was required               to    prove   a   continuous   readings    and               willingness, from the date of the contract  to               the  time  of  the  hearing,  to  perform  the               contract  on his part.  Failure to  make  good

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             that  averment brought with it the  inevitable               dismissal of his suit." The respondent must in a suit for specific performance of an agreement  plead and prove that he was ready and willing  to perform  his part of the contract continuously  between  the date  of the contract and the date of hearing of  the  suit. On  this part of the case the Trial Court recorded  a  clear finding against the respondent that he was at no time  ready and  willing to perform his part of the contract.  The  High Court  did not consider the effect of this finding upon  the claim of the respondent and without expressing dissent  with that  finding granted a decree for specific  performance  to the. respondent. It  is necessary to consider the pleadings of  the  parties, the issues raised, the findings recorded by the Trial  Court and  the  basis on which the appeal was pressed  before  the High Court by counsel for the respondent.  In paragraphs  of the  plaint the respondent averred that he was always  ready and willing to perform his part of the contract and to  have the sale deed executed, but at the request of appealing 1 & 2 exec ution of the sale deed was postponed.  This was denied by appellants 1, 2 & 3. They pleaded that the respondent was not ready and willing to get the sale deed executed and that he  was deliberately putting off payment of the  balance  of the  consideration  and  was  delaying  performance  of  the agreement.  They (1) L.R. [1915] A.C. 386. (1) L.R. 55 I.A. 360, 372. 235 also  pleaded that appellants 1 & 2 were "badly in  need  of money",  but the respondent committed default in  completing the  sale as stipulated.  The Trial Judge raised two  issues which are material on this part of the case               "2.  Whether the plaintiff is not entitled  to               the  specific performance of the sale  of  the               suit properties in his favour ?               5.    Whether  the breach of the  contract  is               due to the fault of the dependents (appellants               1 & 2) or due to the fault of plaintiff  (the               respondent) ?" No  specific  issue  was  raised  about  the  readiness  and willingness  of  the respondent to perform his part  of  the contract,  but the second issue included trial of  the  plea raised  by  appellants,  1,  2 & 3.  The  parties  were,  it appears, fully aware of what was required to be proved,  and led  evidence  in  support of their  respective  cases.   No objection  was  raised  in  the  Court  of  First   Instance protesting against the trial of that plea without a specific issue thereon. At the trial the respondent asserted that on April 15,  1959 be was willing to take the sale deed from appellants 1 & 2, but on April 30, 1959 he was not ready to purchase the stamp paper  or  take the sale deed.  Somewhat  inconsistently  he stated  that on April 30, 1959 he met appellants 1 &  2  and called  upon them to execute the sale deed and  appellant  1 told  him  that "he had urgent need to go for the  case  and that  he would get possession only later and the  sale  deed would  be executed after his return".  The trial Court  con- sidered  the  plea  that the respondent was  not  ready  and willing  to perform his part of the contract on the  footing that time was not of the essence.  The Court referred to the admission made by the respondent that he was not willing  to take  the sale deed on April 30, 1959, and  then  considered the question whether the sale was not completed by April 30, 1959 on account of default on the part of the respondent  or

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of appellants 1 & 2. On a consideration of the evidence, the Trial  Court came to the conclusion that the respondent  was not  ready to complete the sale by April 30, 1959, since  he wanted time for consulting his lawyer as to the desirability of obtaining attestation of the children of appellant No.  1 in the proposed sale deed and that appellants 1 & 2 did  not ask  for  postponement.  The Trial Court then  proceeded  to consider whether default was committed by the respondent  or by appellants 1 & 2, and observed that mere assertion in the plaint that he was ready and willing to perform the contract was not sufficient and his readiness and willingness had  to be  judged  from  what  he had  done  or  from  his  conduct subsequent to the agreement, and on a review of the evidence came to the conclusion that the respondent committed default by not carrying out the contract on April 30, 1959, and that even  after  April 30, 1959 he was not willing to  have  the contract completed.  The learned  Sup.C.1./66n-2 236 Judge observed that the reasons set up by the respondent for the  delay  in taking steps in the  matter  were  "obviously untrue.",  and  that the respondent was trying  to  put  the blame on the appellants and inventing excuses to explain the omission   in  taking  the  sale  deed.   He  concluded   in paragraph-18  of  his judgment : "The consideration  of  the evidence  in the case discloses only one thing,  viz.,  that the  plaintiff (the respondent) was never eager,  prompt  or desirous  or  willing to take a sale deed  in  pursuance  of Exts.   A-2 and A-3.  It is the plaintiff  (the  respondent) who  committed  default in performance of his  part  of  the agreement." The learned Judge then observed that in his view time  was of the essence of the contract and even if it  was not, the contract must be performed within a reasonable time after  the date fixed in the agreement dated April  4,  1959 and  the  agreement dated April 15, 1959, and this  was  not done.  The Trial Court thereafter summarised the evidence as to  the conduct of the respondent and appellants 1 & 2  and held  that  the respondent was "never ready and  willing  to perform his part or the contract at any time." The  Trial Judge apparently confused two independent  issues one  of  default  in  performance of  the  contract  by  the respondent and the other of readiness and willingness of the respondent  to  carry  out his part  of  the  contract.   As observed  earlier,  if  time is not of the  essence  of  the contract, default occurs when a party serves a notice making time  of the essence and requires the other party  within  a reasonable  time fixed by the notice to carry out the  terms of the contract, and the party served with the notice  fails to comply with the requisition.  In this case no such notice was  served,  and  from  the  mere  delay  in  calling  upon appellants  1 & 2 to complete the contract, default  on  the part  of the respondent cannot be inferred.  But  the  Trial Court  also came to the conclusion that the conduct  of  the respondent  as evidenced by his statement and his  witnesses proved that he was not ready and willing to perform his part of the contract.  This the Court inferred from the delay  of three months after April 30, 1959 and the evidence given  by the   respondent   to   explain   that   delay   and   other circumstances. The Trial Court expressly recorded a finding on issue No.  2 adverse to the claim of the respondent.  The respondent had, as  already observed, claimed that he was ready and  willing to perform his part of the contract and appellants 1, 2 &  3 had denied that claim.  Before he could be awarded a  decree for  specific performance, the respondent had to  prove  his readiness and willingness continuously from the date of  the

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contract  till  the date of hearing of the suit  and  if  he failed in that, his suit was liable to fail.  And the  Trial Court  dismissed the respondent’s suit on that ground  also. The High Court could grant a decree for specific performance in favour of the respondent against appellants 1 & 2 only if the Court 237 was satisfied that the respondent was continuously ready and willing to perform his part of the contract from the date of the suit tin the date of hearing.  But the respondent in the High  Court did not apparently challenge the finding of  the Trial  Court  on that question against the  respondent.   He merely  invited the High Court to decide the appeal  on  the footing  that even if the respondent "had defaulted  in  the sense  that  on  April  30, 1959 or  before  that  date  the respondent  was  not ready with the necessary  funds  to  go through  the sale" he was entitled to a decree for  specific performance.  The statement so recorded is somewhat  obscure : a ground for rejecting the respondent’s claim for specific performance will not arise merely because the respondent was not  ready  with the necessary funds on April 30,  1959,  if time  was not of the essence.  But if the respondent was  on April 30, 1959 not ready and willing to, perform his part of the contract, his suit must fail. The  Trial  Court found that the  respondent  had  committed default  in performing his part of the contract.   This  the Court inferred from his statement made before the Court  and the evidence that for three months after the date fixed  for performance  no  steps  were taken  by  the  respondent  for completion of the contract.  That inference however does not necessarily   follow  from  mere  delay  in   calling   upon appellants  1 & 2 to perform the contract.  But  the  Trial Court  also found that the respondent was at no  time  ready and  willing  to  perform his part of  the  contract.   This finding  was never challenged before the High Court and  the High  Court  did not hold that the  finding  was  incorrect. Counsel  for  the respondent urged that the finding  by  the Trial  Court on the issue of readiness and  willingness  was "without evidence, vague and perverse" and that the  learned Judges  of  the  High Court were  justified  in  "completely ignoring" it and in granting a decree to the respondent  for specific  performance, notwithstanding that finding.  It  is difficult  to characterise the finding as perverse  or  even vague  or without evidence.  The Trial Judge on his view  of the  evidence held that the respondent was at no time  ready and  willing to perform his part of the  contract.   Whether the evidence justified that conclusion is a matter of  which we  may for the present defer consideration.  But it is  one of the grounds on which the suit was dismissed by the  Trial Court.  Without considering the evidence and without setting aside that finding, a decree for specific performance  could not  be granted, and there is, in the judgment of  the  High Court  no  discussion of the evidence on this  part  of  the case. Counsel  for  the respondent then urged that  the  inference raised by the Trial Judge on the second issue, insofar as it relates to the readiness and willingness for the  respondent to perform his part of the contract, could not be raised  on the findings recorded by him, The respondent had stated that he  was on April 30, 1959 not ready to purchase  the  stamp- paper or to take the sale deed.  After April 238 30,  1959 also according to the Trial Judge  the  respondent took no steps to call upon appellants 1 & 2 to perform their part of the contract, and did not purchase the stamp  paper.

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The Trial Judge also found that the story of the  respondent that  appellant No. 1 requested that completion of the  sale be  postponed because he had to attend a social function  at Madurai  and thereafter he had to go about making  enquiries for a suitable match for his grand-daughter, and that in the first  week of July 1959 appellant No. 1 and the  respondent went to V. Pillai P.W. 3 for preparation of the draft  sale- deed and that the first appellant requested for time to  get the attestation of his son and daughters, was not true,  and that  the respondent was attempting to throw blame  for  the delay  on appellants 1 & 2 and was trying to invent  excuses to explain away his own unwillingness to take the sale-deed. In the view of the Trial Court the respondent was  undecided as  to whether he should go through with the ,contract,  and was  apparently willing to allow the matter to  drift.   The Trial Court has therefore come to the conclusion, having re- gard to the admission made by the respondent, his subsequent conduct and other circumstances, that the respondent was not ready  ,and willing to take the sale deed at any time.   The finding  is  based  on prima facie good  evidence,  and  the inference  raised  by the Trial ,Court  is  reasonable.   It would  be difficult for this Court to set aside the  finding without  reappraisal  of  the  evidence.   Counsel  for  the appellant  has  not  asked  us-and  we  think  that  in  the circumstances  he  was  right  in  so  doing-to  review  the evidence  on  the  record and to arrive  at  an  independent conclusion  on the plea of readiness and willingness of  the respondent  on  the evidence, as the learned Judges  of  the High  Court may have done if the question was raised  before them.   The finding of the Trial Court that  after  entering into  the contract the respondent was not ready and  willing to perform his part of the contract must be accepted. The  appeal  is allowed and the decree passed  by  the  High Court is set aside, and the decree passed by the Trial Court restored.  There will be no order as to costs in this  Court and the High Court. Bachawat,  J.  Having regard to the decision in  Jamshed  v. Burjorji (1), the High Court rightly held that time was  not of the essence of the contract.  The contract was entered on March  5, 1959.  On that day, the respondent paid a  deposit of  Rs. 1,006/-.  On April 4, 1959, the parties agreed  that the sale should be completed before April 15, 1959.  On that day,  the respondent deposited another sum of  Rs.  2,000/-. On  April 15, 1959, the time for completion of the sale  was extended  up  to  April 30,1959.  The  transaction  was  not completed within April 30, 1959.  But as the time was not of the  essence of the contract, the contract  remained  alive. On  July  30, 1959, the appellants  abruptly  cancelled  the contract (1)  (1916) L.R. 43 I.A. 26. 239 and  forfeited the deposit.  The respondent did  not  accept the  cancellation.   On  August 3, 1959,  he  deposited  the balance price of Rs. 13,906/- in a bank.  On August 4, 1959, he  called upon the appellants to perform the agreement,  On March 21, 1960, the respondent instituted the present suit. The  High Court repelled the contention that the  relief  of specific performance was barred by delay.  The appellants no longer urge that the respondent was disentitled to relief on the  ground of delay.  Counsel for the appellants  took  the new  point that the respondent was not ready and willing  to perform  his  part of the contract and his  suit  should  be dismissed on this ground.  I find no trace of this  argument in  the judgment of the High Court.  Before the High  Court, the present appellants urged two points only, viz., (a) time

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was of the essence of the contract and therefore the respon- dent was guilty of breach of contract and (b) in any  event, the  respondent was not entitled to relief on the ground  of delay.  The High Court rejected both these contentions.  The appellants did not rely upon the finding of the trial  Court that the respondent was not ready and willing to perform the contract.   If  the appellants relied on this  finding,  the High  Court  would have suitably dealt with  it.   The  High Court  could  not have decreed the suit  for  specific  per- formance  without  finding that the respondent  was  at  all material times ready and willing to perform the contract. The  trial Court framed six issues.  There was  no  specific issue  on the question whether the respondent was ready  and willing  to perform the contract.  I do protest against  any Court, be it the mofussil Court or the High Court, recording a  finding  on  such  a vital  question  without  raising  a specific  issue  on the point.  Issue No. 2  was  a  general issue.  The issue was "whether the plaintiff is not entitled to  specific performance of the sale of the suit  properties in  his  favour."  Under  this issue,  the  trial  Court  in paragraphs 17 to 20 of its judgment, discussed all kinds  of questions  such  as readiness and  willingness,  default  in performance of the contract, delay, waiver and  abandonment. The substance of the finding of the trial Court was that the time  was  of  the  essence of  the  contract,  and  as  the respondent  had failed to perform his contract by April  30, 1959,  he  was guilty of breach of contract  and  could  not claim  specific  performance.   It  further  held  that  the respondent was disentitled to relief on the ground of delay, waiver,  and abandonment.  Incidentally, as  the  respondent had failed to perform the contract by April 30, 1959 and had taken  no  steps till July 30, 1959, the trial  Court  found that he was never ready and willing to perform the contract. The  finding  with regard to readiness and  willingness  was linked up with the finding that the time was of the  essence of  the  contract  and the respondent could  not  claim  any relief  on  the ground of delay.  As we  are  reversing  the finding that the time was of the essence of the contract and also that the respondent was. 240 disentitled  to  relief  on the ground  of  delay,  we  must reverse  the finding that the respondent was not  ready  and willing to perform the contract. Counsel  for  the appellants laid stress upon  an  admission made  by  the respondent in his  cross-examination  that  on April 30, 1959, he was not ready to purchase the stamp paper or  to  take the sale deed.  Counsel also  relied  upon  the concessions made on behalf of the respondent and recorded in the following passages in the judgment of the High Court               "Before us Mr. K. S. Desikan for the appellant               made  no attempt to canvass the  finding  that               his client had defaulted in the sense that  on               April  30,  1959,  or  before  that  date  the               appellant  was  not ready with  the  necessary               funds   to  go  through  the  sale......   The               question then is, whether the appellant being,               as  found  by the trial Court,  which,  as  we               said, is not contested before us, a defaulting               party, he is entitled to a decree for specific               performance.   That would depend upon  whether               there  was  undue  delay on the  part  of  the               appellant and whether respondents 1 and 2 have               given  him  reasonable  notice  that  he  must               complete  the  agreement  within  a   definite               time."

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The effect of these admissions is this : If the time was  of the essence of the contract, the respondent had defaulted on April  30, 1959.  But if the time was not of the essence  of the contract, he had committed no breach of contract and the only question then was whether he could be refused relief of specific  performance  on  the ground of delay.   It  is  no longer  contended  that  the respondent  is  disentitled  to relief  on the ground of delay.  As the time was not of  the essence  of the contract, it was the duty of the  appellants to give to the respondent a notice fixing a reasonable  time for  the  completion  of  the sale.  They  did  not  do  so. Instead  of fixing a reasonable time for the  completion  of the  sale, they wrongfully ’cancelled the contract by  their letter dated July 31, 1959.  There was undoubtedly delay ,on the part of the respondent to complete the sale.   According to the respondent, the appellants were putting off the  sale on various pretexts, but his testimony on this point was not accepted  by the trial Court.  It follows that there was  no explanation  for  the delay in the completion of  the  sale. But the High Court rightly found that neither the delay  nor the  failure to explain the delay was a ground for  refusing relief. After discussing the evidence, the trial Court recorded  the following finding :               "The reasons for the delay or the omission  on               the part of the plaintiff to take any step  in               the  matter, are obviously untrue, and  it  is               clear that he was throwing               2 4 1               blame on defendant and finding out some reason               or  other to explain the delay or omission  to               take any sale deed.  Thus from 30-4-1959 up to               the middle of July 1959, the plaintiff has not               taken  any  step in the matter ....  The  time               expired by 30-4-1959.  Nothing was done by the               plaintiff  till  30-7-1959 for a period  of  3               months.  The plaintiff did not do anything  on               his  part to implement the agreement  for  the               said period of 3 months."               On the basis of this finding it held that  the               respondent  was  not  ready  and  willing   to               perform the contract.  It said :               "The consideration of the evidence in the case               discloses  only  one  thing,  viz.,  that  the               plaintiff was never eager, prompt or  desirous               or willing to take a sale deed in pursuance of               Exs  A-2  and A-3.  It is  the  plaintiff  who               committed  default in performance of his  part               of the agreement .... even if time was not the               essence  of  the contract, the  plaintiff  was               never ready and willing to perform his part of               the contract at any time." I  am of the opinion that the trial Court was clearly  wrong in  inferring that the respondent was not ready and  willing to  perform the contract from the fact that from  April  30, 1959  up to the middle of July 1959 the respondent  had  not taken  any  steps  in the matter and  from  his  failure  to explain  the  delay.   If the respondent     was  guilty  of laches,  it was the duty of the appellants to fix a  reason- able time for the completion of the sale.  Mere delay, short of  waiver or abandonment of the contract is no  ground  for refusing relief, nor is it evidence of lack of readiness and willingness.   The materials on the record clearly  indicate that  the  respondent was at all material  times  ready  and willing  to perform the contract.  The  total  consideration

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money  was  Rs. 15,106/-  On March 5, 1959,  the  respondent made  an advance deposit of Rs. 1,006/-.  On April 4,  1959, he  made  another  deposit of Rs. 2,000/-.  As  soon  as  he received  the letter dated July 30, 1959, he  deposited  the balance  sum of Rs. 13,906/- in a bank.  Counsel urged  that before  July 30, 1959 the respondent should have been  ready with  the money.  There is no force in this contention.   In Bank  of India Limited v. Jamsetji A. H. Chinoy and  Messrs. Chinoy  and Company (1), the Privy Council decreed  specific performance of the contract to sell shares.  On the question of  readiness  and willingness of the buyer to  perform  the contract, Lord Mcdermott observed at p. 91 of the Report :               "It  is true that the first  plaintiff  stated               that  he was buying for himself, that  he  had               not  sufficient ready money to meet the  price               and  that  no definite arrangements  had  been               made   for   finding  it  at   the   time   of               repudiation.  But to               (1)   (1949) L.R. 77 I.A. 76.               2 4 2               prove  himself ready and willing  a  purchaser               has not necessarily to produce the money or to               vouch  a  concluded scheme for  financing  the               transaction."               In  my opinion, the respondent is entitled  to               specific performance of the contract, and  the               High Court rightly decreed the suit.               In  the result, the appeal is  dismissed  with               costs.                                   ORDER In accordance with the opinion of the majority the appeal is allowed,  the decree passed by the High Court is  set  aside and  the decree passed by the trial court  restored.   There will  be no order as to costs in this Court and in the  High Court. R.K.P.S. 243