Alagammal And Ors. vs Ganesan And Anr.

2024 INSC 28 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.8185 OF 2009

ALAGAMMAL AND ORS. … APPELLANTS VERSUS

GANESAN AND ANR. … RESPONDENTS

A1: ALAGAMMAL A2: PALANIAMMAL A3: MARIAMMAL A4: PATTAYEE AMMAL A5: KARUPPARAJ A6: LAKSHMI A7: THANGAM A8: MARUTHAMBAL

R1: GANESAN R2: MAGUDEESWARI

J U D G M E N T

Signature Not Verified AHSANUDDIN AMANULLAH, J. Digitally signed by POOJA SHARMA Date: 2024.01.10 15:42:58 IST Reason: Heard learned counsel for the parties. 2

2. The present appeal is directed against the

Final Judgment dated 28.04.2009 (hereinafter

referred to as the “Impugned Judgment”) passed by

the Madurai Bench, Madras High Court (hereinafter

referred to as “the High Court”) dismissing a

Second Appeal [S.A. (MD) No.1127 of 2008] filed by

the appellants/original defendants.

BRIEF FACTS:

3. The appellants no.1, 2 and 3 entered into a

registered Agreement of Sale (hereinafter referred

to as the “Agreement”) with the respondents on

22.11.1990 to sell the suit property for a

consideration of Rs.21,000/-, against which

Rs.3000/- had been received in advance. Further,

six months’ time was fixed for completion of the

transaction. The appellants No.1, 2 & 3, in the

meantime, had executed a Sale Deed with regard to

the property in question with appellant no.7 on 3

05.11.1997 for a consideration of Rs.22,000/-. On

18.11.1997, the respondents sent a Notice to the

appellants calling upon them to execute the

Agreement. This led to the respondents filing of

Original Suit No.165 of 1998 before the Munsif,

District Court, Dindigul against the appellants

for specific performance of the Agreement, damages

and for recovery of money with interest. The suit

stood dismissed by the Principal District Munsif

Judge, Dindigul by order dated 10.09.2000. An

appeal bearing A.S. No.258 of 2008 filed by the

respondents was allowed by the First Appellate

Court, and the same has been upheld by the High

Court by the Impugned Judgment dated 28.04.2009.

SUBMISSIONS BY THE APPELLANTS:

4. Learned counsel for the appellants submitted

that as per the Agreement, the balance

consideration amount of Rs. 18,000/- was to be

paid within six months which was admittedly not 4

done. He submitted that the so-called subsequent

payments on 16.12.1990 of Rs.1,000/-; on

15.04.1991 of Rs.3,000/-, and; on 17.09.1991 of

Rs.2,500/- though were not actually paid to the

appellants and even without admitting the same and

accepting it for the sake of argument, the same is

incorrect as the fingerprint expert has found the

thumb-impression of the appellant no.1 as not

matching the admitted actual sample thumb-

impression of the appellant no.1. and, thus, the

very basis of holding that time was not the

essence of the agreement gets washed away. It was

submitted that the Agreement stipulated that if

there was default on the part of the respondents,

the advance paid would be forfeited, and the

entitlement to obtain the Sale Deed and get

possession free from all encumbrances would also

end.

5

5. It was submitted that once the fingerprint

has been disapproved of by an expert and such

report has been brought before the First Appellate

Court, the claim based on such a document on which

forgery has been committed itself renders the

whole transaction inadmissible in law on the well-

settled principle that the respondents did not

come before the Court with clean hands as the

entire claim was based on a forged document.

6. It was submitted that the claim of the

respondents to have paid Rs.3,000/- on 18.09.1992;

Rs.1,800/- on 24.07.1996; Rs.1,300/- on 25.07.1996

and Rs.1,000/- on 29.07.1996 i.e., a total of

Rs.20,425/- and ultimately Rs.1,000/- on

21.04.1997 i.e., an excess of Rs. 425/- over the

amount indicated in the Agreement, was false.

7. Learned counsel submitted that the

endorsement(s) made not having been proved, it

cannot be assumed that the respondents were ready 6

and willing, or that they had, in fact, paid the

excess amount.

8. It was contended that the Legal Notice sent

on behalf of the respondents dated 18.11.1997 was

clearly to get over the fatal lapses on their part

and to give life to a dead cause i.e., revive the

Agreement, which already stood incapable of being

executed through Court due to efflux of time. On

this issue, the contention was that readiness and

willingness must be pleaded and proved which has

not been done as is clear from the averments made

in the plaint filed by the respondents. Thus, it

was submitted that the trial court and even the

First Appellate Court not recording any finding on

the aspect of the readiness and willingness on the

part of the respondents, the High Court’s

observation in the Impugned Judgement on readiness

and willingness of the respondents is without

basis.

7

9. Learned counsel submitted that readiness and

willingness has to be specifically pleaded and

proved as per Section 16(c) of the Specific Relief

Act, 1963 (hereinafter referred to as the “1963

Act”) and there cannot be any question of drawing

inference. Thus, he submitted that the respondents

were obliged to obtain stamp-paper and draw up the

Sale Deed, of which there is no indication in the

plaint. It was urged that this establishes that

there was no readiness and willingness to comply

with their obligations in terms of the Agreement.

10. Learned counsel submitted that the thumb-

impression(s) in the endorsement(s) have neither

matched nor been found to be identical as per the

fingerprint expert’s report which has been

referred to in the judgment of the First Appellate

Court.

8

11. Learned counsel submitted that as per the

judgment rendered by the First Appellate Court and

affirmed by the High Court, the last payment made

and endorsed on 17.09.1991 has been accepted and

thus three years from such date would be

16.09.1994 but the suit was instituted only on

23.03.1998, which is clearly barred by limitation.

12. It was submitted that the Trial Court had

found that the endorsements were silent regarding

extension of time, which finding has not been

disturbed either by the First Appellate Court or

the High Court and looking at the issue from such

angle, six months’ time under the Agreement would

expire on 21.05.1991 and a three-year limitation

would end on 22.05.1994. On this, learned counsel

submitted that the contention of the respondents

that the limitation would start from the judgment

rendered in Original Suit No.551 of 1992 dated

24.07.1996, filed by appellant no.1 for seeking 9

possession and eviction of her husband and mother-

in-law from the suit property, is not the correct

legal perspective, as mere absence of possession

would not have defeated the passing of title from

the appellants in favour of the respondents by the

execution of a Sale Deed. The object of the

Agreement was only for conveying the title of the

property in question.

13. Learned counsel submitted that neither

Original Suit No.551 of 1992 nor the judgment

rendered therein have been mentioned by the

respondents in Original Suit No.165 of 1998 for

computing the cause of action for filing suit in

the year 1998 with regard to the Agreement, which

was entered into in 1990. Further, it was urged

that it was incumbent upon the respondents to have

obtained the Sale Deed and possession through

Court as set forth in the Default Clause in the

Agreement and thus, the Legal Notice dated 10

18.11.1997 by the respondents would not extend the

time as it had expired much before and such

unilateral issuance of notice would not get over

the legal bar of Article 54 of the Limitation Act,

1963 (hereinafter referred to as the “Act”).

14. Learned counsel summed up arguments by

contending that in any view of the matter, prior

to filing of the suit, the property in question

had already been sold under registered Sale Deed

to the appellant no.7 and the suit for specific

performance was required to be dismissed as the

Sale Deed to appellant no.7 has not been

challenged.

15. Learned counsel relied upon the decision of

this Court in K.S. Vidyanadam v Vairavan, (1997) 3

SCC 1, at Paragraphs 10, 11 and 13 for the

proposition that Courts in India have consistently

held that in the case of agreement of sale

relating to immovable property, time is not the 11

essence of the contract unless specifically

provided to that effect, and the period of

limitation prescribed by the Act for filing a suit

was 3 years.

16. It was contended that in the aforesaid

judgment, the terms of the agreement therein were

identical to the instant Agreement, inasmuch as

there was no reference to any tenant in the

building and it was stated that within six months,

the plaintiff should purchase the stamp-papers and

pay the balance consideration upon which the

defendants shall execute the Sale Deed either in

his name or the name(s) proposed by him before the

Sub-Registrar. It was restated that there was no

prior letter/notice from the plaintiffs

(respondents) to the defendants (appellants)

calling upon them to get the Sale Deed executed

till the issuance of the Legal Notice dated 12

18.11.1997 i.e., after a gap of 6 ½ years,

identical to the facts in K.S. Vidyanadam (supra).

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

17. In opposition to the appeal, learned counsel

for the respondents submitted that on 23.03.1992,

appellant no.1 had filed Original Suit No.551 of

1992 against her husband, mother-in-law, second

wife of her husband and the son of the second

wife, which was decreed. He submitted that

appellants even after accepting Rs.425/- over and

above the amount indicated in the Agreement and

even after getting a decree for declaration and

possession of the suit property in her favour on

24.07.1996, did not execute the Sale Deed due to

which Legal Notice was sent to her on 18.11.1997.

As no action was taken, the respondents were

forced to file a suit on 23.03.1998 seeking

specific performance.

13

18. Learned counsel submitted that the First

Appellate Court had recorded that the Sale Deed

executed by appellant no.1 in favour of appellant

no.7 dated 05.11.1997 was not bonafide as the said

sale was effected after getting an order for

declaration and recovery of possession of the suit

property in favour of appellant no.1 on 24.07.1996

in Original Suit No.551 of 1992.

19. Learned counsel submitted that the issue

whether time is the essence of the contract i.e.,

the Agreement would depend also on the conduct of

the parties and in the present case, when money

was accepted by appellant no.1, much after the

stipulated time, clearly the Agreement’s validity

so as to culminate in sale could not be said to

have been extinguished, as by accepting money

later, the time indicated for completion of the

transaction by execution of Sale Deed had been

relaxed.

14

20. It was contended that the actual intention of

the parties was not only to execute the Sale Deed

but also handover the possession which is an

implied term of every sale of immovable property

and thus only when on 24.07.1996, the appellant

concerned became capable of handing over

possession, limitation would start from such date

as otherwise even if the Sale Deed was executed in

favour of the respondents, it would have been of

no real consequence in the absence of possession

being capable of hand over.

21. Learned counsel contended that the stand

taken by the appellants, that the proposed sale

was only for transfer of title and not possession,

cannot be accepted since the sale of immovable

property is always for the transfer of possession

from the seller to the buyer in terms of Section 5

read with Section 54 of the Transfer of Property

Act, 1882 (hereinafter referred to as the “TP 15

Act”). Further, it was submitted that Section

55(f) of the TP Act contemplates duty of the

seller to hand over possession of the property at

the time of sale, and if the seller is not in

possession of the property at the time of the

agreement to sell or thereafter, it is a “material

defect” in the property necessarily to be

disclosed to the purchaser at the time of sale in

accordance with Section 55(1)(a) of the TP Act.

Thus, according to him, it is the obligation of

the seller to hand over possession at the time of

sale, as was stipulated in the Agreement.

22. On the question of whether time is of the

essence in such a contract, it was contended that

when a party is not in possession to hand over the

same at the time of execution of an agreement for

sale, then time would not be of the essence as the

right to sue would accrue in favour of the person

to whom the suit property is required to be sold 16

only upon the vendor being in a position to hand

over possession of the property to the buyer. It

was further submitted that subsequent conduct of

parties is also relevant for testing whether time

is of the essence of the contract in question. It

was submitted that in the present case, the

acceptance of money much after the expiry of the

six-month period by the appellant no.1 from the

respondents leaves no doubt that time was not the

essence and the time for performance of the

Agreement would commence only after obtainment of

physical possession by the appellants.

23. In support of his contentions, learned

counsel relied upon the decision of this Court in

Godhra Electricity Company Limited v State of

Gujarat, (1975) 1 SCC 199, the relevant paragraphs

being 11 to 16; of the United Kingdom Supreme

Court in The Commissioners for Her Majesty’s

Revenue and Customs v Secret Hotels2 Limited 17

(formerly Med Hotels Limited), [2014] UKSC 16

dated 05.03.2014, the relevant being paragraph 331,

and; The Interpretation of Contracts, 7th Edition

by Sir Kim Lewison, the relevant being paragraph

3.189.

ANALYSIS, REASONING AND CONCLUSION:

24. Having considered the matter, this Court

finds that the Judgment impugned cannot be

sustained. The moot question revolves around

whether the Agreement dated 22.11.1990 discloses a

fixed time-frame for making payment in full by the

respondents that is, in terms of the recitals in

the agreement for sale executed by the appellant

no.1 in favour of the respondents. The admitted

position is that the time indicated in the

‘33. In English law it is not permissible to take into account the subsequent behaviour or statements of the parties 1

as an aid to interpreting their written agreement – see FL Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC

235. The subsequent behaviour or statements of the parties can, however, be relevant, for a number of other reasons.

First, they may be invoked to support the contention that the written agreement was a sham – ie that it was not in fact intended to govern the parties’ relationship at all. Secondly, they may be invoked in support of a claim for rectification of the written agreement. Thirdly, they may be relied on to support a claim that the written agreement was subsequently varied, or rescinded and replaced by a subsequent contract (agreed by words or conduct). Fourthly, they may be relied on to establish that the written agreement represented only part of the totality of the parties’ contractual relationship.’ 18

Agreement was six months from 22.11.1990 i.e.,

till 21.05.1991 and as per the Legal Notice dated

18.11.1997 sent by the respondents to the

appellants, only Rs.7000/- was paid within the

time stipulated. Perusal of the Agreement reveals

that the respondents had agreed to pay the

appellants Rs.21,000/- for the property in

question, out of which Rs.3,000/- was already paid

as earnest money and the rest was to be paid

within 6 months. The respondents were to purchase

stamp papers at their expense and the appellants

had to register the Sale Deed either in the name

of the respondent no.1 or as proposed by him

before the Sub-Registrar after paying the

remaining/balance amount. If the appellants failed

to register the Sale Deed, respondent no.1 had a

right to deposit the balance of sale consideration

in the Civil Court and get sale with possession

effected through Court from the first party i.e.,

appellants no.1 to 3.

19

25. At this juncture, the Court would indicate

that within six months there existed the onus of

paying the entire balance amount of Rs.18,000/- by

the respondent no.1 to the appellant no.1. It is

not the case of the respondents that they had even

offered to pay the remaining/balance amount before

the expiry of the six-month period. Thus, payment

of Rs.3,000/- only out of Rs.21,000/- having been

made, or at best Rs.7,000/- out of Rs.21,000/-,

which is the amount indicated in the Legal Notice

sent by the respondents to the appellants, the

obvious import would be that the respondents had

not complied with their obligation under the

Agreement within the six-month period.

26. Pausing here, it is notable that the appellant

no.1 having accepted payment of Rs.1,000/- on

21.04.1997 i.e., after appellant no.1 had executed

a Sale Deed in favour of appellant no.7 on

05.11.1997, coupled with the fact that the 20

forensic expert found the two thumb-impressions

purportedly acknowledging payment after the expiry

of the time fixed not matching the fingerprints of

appellant no.1 is clearly indicative that time

having not been extended, no enforceable right

accrued to the respondents for getting relief

under the 1963 Act. At the highest, if the

appellant no.1 had accepted money from respondent

no.1 after the expiry of the time-limit, which

itself has not been conclusively proved during

trial or even at the first or second appellate

stages, the remedy available to the defendants was

to seek recovery of such money(ies) paid along

with damages or interest to compensate such loss

but a suit for specific performance to execute the

Sale Deed would not be available, in the prevalent

facts and circumstances. In the present case,

there is also no explanation, as to why, an excess

amount of Rs.425/-, as claimed, was paid by

respondent no.1 to the appellant no.1, when the 21

respondents’ specific stand is that due to the

appellants not being in possession of the property

so as to hand over possession to the respondents,

delay was occasioned. The submission that no

adverse effect could be saddled on the respondents

as decree for declaration and recovery of

possession was obtained by appellant no.1 in her

favour only on 27.04.1996 is not acceptable for

the reason that there is no averment that pursuant

to such decree, she had also obtained possession

through execution. Thus, the decree dated

27.04.1996 also remained only a decree on paper

without actual possession to appellant no.1. The

contention of the respondents becomes self-

contradictory especially with regard to cause of

action having arisen after such decree in favour

of the appellant no.1 since even at the time of

filing the underlying suit, actual possession not

being with appellant no.1, the Sale Deed could not

have been executed.

22

27. Another important aspect that the Court is

expected to consider is the fact that the

appellant no.7 in whose favour there was a Sale

Deed with regard to the suit premises, much prior

to issuance of any Legal Notice and the

institution of the suit in question and that no

relief had been sought for cancellation of such

Sale Deed, a suit for specific performance for

execution of sale deed qua the very same property

could not be maintained. The matter becomes worse

for the respondents since such relief was also not

sought even at the First Appeal stage nor at the

Second Appeal stage, despite the law permitting

and providing for such course of action. Even the

Legal Notice dated 18.11.1997 has been issued

after almost seven months from the alleged last

payment of Rs.1.000/-, as claimed by the

respondents to have been made on 21.04.1997.

28. Pertinently, though appellant no.7 was

arrayed as a defendant in the suit, yet no relief 23

seeking cancellation of his Sale Deed was sought

for.

29. The ratio laid down in K.S. Vidyanadam

(supra) which had a similar factual matrix

squarely applies in the facts and circumstances of

the present case, on the issue that time was the

essence of contract and even if time is not the

essence of the agreement, in the event that there

is no reference of any existence of any tenant in

the building and it is mentioned that within a

period of six months, the plaintiffs should

purchase the stamp paper and pay the balance

consideration whereupon the defendants will

execute the Sale Deed, there is not a single

letter or notice from the plaintiffs to the

defendants calling upon them to the tenant to

vacate and get the Sale Deed executed within time. Further, the Legal Notice was issued after two and

a half years from expiry of the time period in 24 K.S. Vidyanadam (supra), whereas in the present

case, the Legal Notice has been issued after more

than six and a half years. The relevant paragraphs

from K.S. Vidyanadam (supra) read as under:

‘10.It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion 25

vested in the court by both Sections 10 and

20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519]: (SCC p. 528, para 25) “… 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 if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.” In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades — particularly after 1973 [ It is a well-

known fact that the steep rise in the price of oil following the 1973 Arab-Israeli war set in inflationary trends all over the world. Particularly affected were countries like who import bulk of their requirement of oil.]. In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil 26

Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The trial court has accepted the defendants' story whereas the High Court has accepted the plaintiff's story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of six months, the plaintiff should purchase the stamp papers and pay the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession of the suit house to the 27

plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months', he purchased the stamp papers and offered to pay the balance consideration. The defendants' case is that the tenant is their own relation, that he is ready to vacate at any point of time and that the very fact that the plaintiff has in his suit notice offered to purchase the house with the tenant itself shows that the story put forward by him is false. The tenant has been examined by the defendant as DW 2. He stated that soon after the agreement, he was searching for a house but could not secure one. Meanwhile (i.e., on the expiry of six months from the date of agreement), he stated, the defendants told him that since the plaintiff has abandoned the agreement, he need not vacate. It is equally an admitted fact that between 15- 12-1978 and 11-7-1981, the plaintiff has purchased two other properties. The defendants' consistent refrain has been that the prices of house properties in Madurai have been rising fast, that within the said interval of 2 1/2 years, the prices went up three times and that only because of the said circumstance has the plaintiff (who had earlier abandoned any idea of going forward with the purchase of 28

the suit property) turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2 1/2 years, he has been repeatedly asking the defendants to get the tenant vacated and execute the sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15-12-1978 till 11-7-1981, i.e., for a period of more than 2 1/2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendants' case that the values of the house property in Madurai town were rising fast and this must have induced the plaintiff to wake up after 2 1/2 years and demand specific performance.

11. Shri Sivasubramaniam cited the decision of the Madras High Court in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar [AIR 1952 Mad 389 : (1952) 1 MLJ 44] holding that mere rise in prices is no 29

ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality — and the reality is constant and continuous rise in the values of urban properties — fuelled by large-scale migration of people from rural areas to urban centres and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs 5000 and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs 5000 (as against the total consideration of Rs 60,000) the plaintiff did nothing until he issued the suit notice 2 1/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties — evolved in times when prices and values were stable and inflation was 30

unknown — requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. The learned counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non- existent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).

xxx 31

13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices — according to the defendants, three times — between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.’ (Emphasis supplied)

30. The decisions relied upon by the respondents,

relating to the conduct of parties are of no avail

to them in the circumstances, as even if the case

of later payments by the respondents to the

appellants is accepted, the same being at great

intervals and there being no willingness shown by

them to pay the remaining amount or getting the

Sale Deed ascribed on necessary stamp paper and

giving notice to the appellants to execute the

Sale Deed, it cannot be said that in the present 32

case, judged on the anvil of the conduct of

parties, especially the appellants, time would not

remain the essence of the contract.

31. For reasons afore-noted, the Impugned

Judgment of the High Court as also the judgment of

the First Appellate Court stand set aside. The

judgment/order of the Trial Court is revived and

restored.

32. The appeal is allowed accordingly.

33. In the facts and circumstances, no order as

to costs is proposed.

........................J. [VIKRAM NATH]

`

........................J. [AHSANUDDIN AMANULLAH] NEW DELHI JANUARY 10, 2024