LexGOMATHINAYAGAM PILLAI AND ORS. versus PALLANISWAMI NADAR
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A
GOMATHINAYAGAM PILLAI AND ORS.
v.
PALLANISWAMI NADAR
September 2, 1966.
B
[K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT, JJ.]
D
E
F
ff
Contract, Act, 1872, s. 55-Tinie to be regarded as essence of contract
-Conditions for-Speci{i:c performance-Whether decree can be granted
unless party c/aim1'ng can show he was ready and willing at all times to
perform his part.
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. I 006
as an advance amount for which a receipt was executed by the two ap-
pellants. No time was fixed for the completion of the sale. On Apnl 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 imposin.g a penalty upon tJie 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 com~
plete 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 I 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 bad failed to carry out the agreement by April 30, 1959.
th~· agreement stood cancelled and the 'advance amount stood forefeitcd.
Thereafter on July 9, 1959 appellants I 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 appel-
lants that he was ready and willing to carry out his part of the contract;
and he called upon appellants I and 2 to execute the sale deed within 3
days against payment of the balance of the price. 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 reYersed 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. di<.<enting)
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 ett!<lring 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 unmis-
takable language that time was to be of the essence and existence of the
default clanse 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
SUPREME COURT REPORTS
[1967) l S.C.R.
time of tho essence of the contract may be evidenced by e'tber express
stipulations or by circumstances which are sufficiently strong to displace
the ordinary pr05umption that in a contract of sale of land stipulations as
to time are not of the essence.
In the present case thcirc was no express
stipulat:on, 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)
Jams/zed Klwdaram Irani v. Burjorji Dlzunjibhai, I.LR. 40 Born. 289
and Stickney v. Keeble. L.R. (1915) A.C. 386, referred to.
Before he could bo awarded a decree for specific performance, the reo-
ponde!ll bad 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, bis 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 findi[l,I!
was never challen~edExcerpt shown. Read the full judgment & AI analysis in Lexace.