JUDGMENT Ram Nandan Prasad, J The plaintiff is the appellant. She had filed the suit for specific performance of contracts of sale of the suit lands (described in Schedules A-1 to A-6 of the plaint) in her favour by the defendants by execution of registered sale deeds and in case of failure of the defendants to execute the deeds, she has prayed that the transfer may be duly made through the agency of the Court. Her suit was, however, dismissed by the learned Sub-Judge, hence the appeal. Certain facts which are admitted. The plaintiff as owner of raiyati lands, executed five sale deeds on 24-3-69 in favour of the defendants (respondents) in respect of lands described in Schedules A-1 to A-5 respectively of the plaint, each for a consideration of Rs. 2,000 and she executed another sale deed in respect of the land of Schedule A-6 on 25-3-69 in favour of the defendants for a consideration of Rs. 1,000. The first five sale deeds were registered on 25-3-69, and the sixth sale deed in respect of the lands of Schedule A-6 was registered on 26-3-69. The execution of the sale deeds was on condition that the defendants will reconvey the suit lands to the plaintiff if the consideration money is returned to the defendants in the month of Magh in any year within five years of the sale and in pursuance of this agreement, the defendants executed and registered six deeds of reconveyance. The deeds of reconveyance in respect of lands of Schedule A-1 to the A-5 (Exts. 4 to 4/e) embody the condition that if the money is tendered by the plaintiff in the month of Magh of any year from 24-3-69 to 23-3-74, the defendants will reconvey the lands to the plaintiff by executing registered sale seeds in her favour. Likewise, deed of reconveyance in respect of Schedule A-6 lands (Ext. 4/e) stipulates that if the money is tendered by the plaintiff in the month of Magh in any year between 25-3-69 to 24-3-74, the defendants shall execute the sale deed in her favour. The plaintiff's case is that she tendered the entire amount of Rs. 11,000 through her men to the defendants during the month of Magh in 1973 and also in 1974 several times but the defendants avoided to receive the money and put off the matter. The plaintiff's case is that she tendered the entire amount of Rs. 11,000 through her men to the defendants during the month of Magh in 1973 and also in 1974 several times but the defendants avoided to receive the money and put off the matter. The plaintiff then sent a lawyer's notice dated 6-2-74 to the defendants by registered post requesting them to accept the money and reconvey the suit lands and although the notice was received by the defendants personally on 11-2-74 they neither gave any reply nor performed their part of the contract by executing the sale deeds in her favour and this indicates their mala fide intention of not fulfilling the contract between the parties. It is also asserted in the plaint that she is ready to perform her part of the agreement and is ready to pay or deposit the consideration money if ordered to do so. Both the defendants filed a joint written statement. They admit having executed the registered deeds of reconveyance (Exts. 4 to 4/e) but their contention is that the plaintiff being the daughter of the ex-landlord of the village where the defendants are the raiyati got the deeds executed by them by exercising undue influence. Their further case is that the consideration money was never tendered by the plaintiff or her men at any time and her story of tender in the months of Magh in 1973 and 1974 is false. Since she was not ready with the money the question of tender and refusal to accept the same does not arise. The notice - sent by the plaintiff was served upon the defendants on 11-2-74, i.e., in the month of Falgun after the expiry of the contractual period and as such the defendants are not bound to act in accordance with the request made in the notice. The allegations made in the notice regarding tender are also false. According to the defendants, the plaintiff neither had any money nor any intention to make payment of the consideration amount and so she has not made any deposit of the same although she mentions in the notice that she would deposit the money in the Court. The defendants also contended that since plaintiff did not perform her part of the contract, she has no cause of action. The defendants also contended that since plaintiff did not perform her part of the contract, she has no cause of action. They further asserted that after mutation of their names they are in legal and valid possession of the suit lands and they were not bound now to convey the same. The learned Sub-Judge came to the finding that the plaintiff had failed to prove that she had tendered the money at any time during the period of the contract as such she could not now claim specific performance of the same. He, therefore, held that she has no cause of action and dismissed the suit. While discussing the point at issue, the learned Sub-Judge, made reference to the terms in the reconveyance deeds (Exts. 4 to 4/e) which are to the effect that after the expiry of the period stipulated in the deeds, the agreement will become unenforceable and in the light of this stipulation he expressed the view that time was essence of the contract in the deeds of reconveyance and as such the defendants could not be held bound to execute the sale deeds on the receipt of the notice after the expiry of the stipulated period. In this appeal, the following points have been submitted : (i) The finding of the learned Sub-Judge that the plaintiff had not tendered the money in Magh 1973 or 1974 is not correct. (ii) That time was not the essence of the contract and when there was no issue on this point and no opportunity was given to the parties to lead evidence, the finding should not have been given by the trial Court. While making submission on the point of tender it was argued on behalf of the appellant that under Section 16 of the Specific Relief Act there is no legal requirement of actually tendering the money and what is necessary is to convey the readiness and willingness to tender the money and hence the plaintiff - appellant cannot be non-suited on the finding that actual tender of the money had not been made. In this context, it has to be borne in mind that the plaintiff's case is that her man had actually gone to tender the money itself and the defendants had evaded to accept the same. In this context, it has to be borne in mind that the plaintiff's case is that her man had actually gone to tender the money itself and the defendants had evaded to accept the same. It is not the plaintiff's case that the readiness and willingness to tender the money was conveyed to the defendants at any time apart from the alleged occasions when her men are said to have gone with the money itself and had made tender of the same. Hence the question of readiness and willingness of the plaintiff is linked with the alleged tender of the money itself and not separate or independent of it. Therefore, it is in this context that the learned Sub-Judge has considered the evidence as to whether there was any tender by the plaintiff and having disbelieved her story he has come to the finding that there was no tender at any time. Out of the five witnesses examined on behalf of the plaintiff, the first three are formal witnesses. P.Ws. 4 and 5 only are witnesses on the point of the alleged tender. Before I refer to the evidence, it is pertinent to note that the case of the plaintiff in the plaint regarding tender is rather vague. She has not mentioned in the plaint how many times tender was made in the month of the Magh in the year 1973 or in the year 1974. She has not specified the day or date of the alleged tenders nor she has stated as to who were the persons who had gone to make the tender. Thus the claim of tender has been left vague and indefinite in the plaint. If she could specifically state the date of sending the notice and date of its receipt by the defendants, there appears to be valid reason why the dates or days of the alleged tender were not mentioned in the plaint. In evidence, the case put forward by the plaintiff through her employees P.Ws. 4 and 5, is that tenders were made on two occasions in the month of Magh 1973 and on one occasion in the month of Magh, 1974. Both P.Ws. 4 and 5 have made general statements to this effect, neither of them being able to say the date or day of the alleged tenders. 4 and 5, is that tenders were made on two occasions in the month of Magh 1973 and on one occasion in the month of Magh, 1974. Both P.Ws. 4 and 5 have made general statements to this effect, neither of them being able to say the date or day of the alleged tenders. It is very easy for any person to come and say that he had gone twice in one year and once in the next year without specifying any date or day. The learned Sub-Judge has, therefore, rightly observed that no reliance can be placed on such statements. A close scrutiny of the evidence makes the assertions of these two witnesses quite incredible. While P.W. 4 speaks that he along with P.W. 5 and one Amanat Noor had gone to the defendants to make the alleged tenders, P.W. 5 does not say that either P.W. 4 or Amanat Noor had gone along with him on any of the occasions, he only speaks about himself having gone with the money for the alleged tenders. P.W. 4's evidence shows that defendant Mahesh Rai is son-in-law of Nunu Rai who is brother of defendant, Daulat Rai and he has also said that Nunu Rai and Daulat Rai are separate from each other in all respects. Both P.Ws. 4 and 5 have merely made general statements that they had gone to make tender to the house of the defendants; they do not say to whose house they had actually gone on each occasion. P.W. 5 does not seem to have any idea of the Hindi months and so the learned Sub-Judge is not unjustified in observing that this makes the evidence of the witness all the more incredible. The defendant Mahesh Rai deposing as D.W. 3 has categorically stated that there was never any tender either to him or to the other defendant Daulat Rai. Both P. Ws. 4 and 5 have admitted that the plaintiff resides at Patna. When questioned as to who had arranged for the money which they are supposed to have carried with them on the alleged three occasions, P.W. 4 stated that the plaintiff's husband, who is employed as an Inspector in the Excise Department, had arranged for the money while P.W. 5 says that he has no knowledge how money had been arranged. When questioned as to who had arranged for the money which they are supposed to have carried with them on the alleged three occasions, P.W. 4 stated that the plaintiff's husband, who is employed as an Inspector in the Excise Department, had arranged for the money while P.W. 5 says that he has no knowledge how money had been arranged. This again throws doubt on the plaintiff's case that her men had actually gone to tender the money to the defendants. There is nothing to show that either she or her husband had sent the money through any messenger or otherwise to her employee for tendering the same to the defendants. In view of all the facts and circumstances. I hold in agreement with learned Sub-Judge, that the plaintiff has failed to prove that she had ever made tender of the consideration money to the defendants in the month of Magh in 1973 or 1974. The grievance of the appellant is that learned Sub-Judge without framing issue on the point and without allowing parties to lead evidence, should have held that time was of the essence of the contract. On behalf of the appellants, some citings have been placed to show that in contract of sale time should not be regarded as essence of the contract. It has to be remembered that in this case the contracts are based on deeds of reconveyance, hence the decisions which related to ordinary sale deeds and not deed of reconveyance are not applicable to the present case. The only relevant ruling cited on behalf of the appellant is reported, in Shambu Nath Chakravarty v. Smt. Sushama Sinha ( AIR 1980 Cal 5 ). This is a decision of a single Judge and it deals with the case of reconveyance. The decision is based on certain rulings of the Supreme Court which are not relating to deeds of reconveyance but ordinary sale deeds. On the other hand a Division Bench ruling reported in AIR 1974 Bom. This is a decision of a single Judge and it deals with the case of reconveyance. The decision is based on certain rulings of the Supreme Court which are not relating to deeds of reconveyance but ordinary sale deeds. On the other hand a Division Bench ruling reported in AIR 1974 Bom. 136 , which follows the decision of the Supreme Court and the Federal Court, clearly lays down that the conditions which apply to an ordinary contract of sale are not applicable to a deed of reconveyance, and that the terms of the reconveyance deed including the term as to time have to be strictly construed and if the plaintiff fails to perform his part of the contract within the stipulated period, he cannot come forward to seek relief under the plea that time should not be regarded as essence of the contract. In my opinion, this ruling clearly applies to the present case. That both parties were fully aware and conscious of the fact that time limit had been fixed for the reconveyance is evident from the pleadings of both parties. Both in paragraphs 2 and 3 of the plaint, it is clearly mentioned that the agreement to reconvey was on condition that the money is returned to the defendants in the month of Magh in any year within five years of the sale. Likewise there are averments of the defendants in the written statement. In paragraph 4 of the W.S. it is stated that the suit had been filed after lapse of the contractual period and in paragraph 9 of the W.S. it is clearly stated that the plaintiffs case regarding her readiness to get reconveyance and her story of tender in the months of Magh in (sic) 1973 and 1794 are false and the notice Ext. 3 sent on behalf of the plaintiff was received by defendants on 11-2-74 in the month of Falgun. Further, in the notice also it is stated that the defendants have evaded to accept the tender amounts deliberately with mala fide intention so that the period of the agreement may expire. There can be no doubt, therefore, that both parties understood that the stipulation in the deeds of reconveyance required that the contract should be performed during period mentioned in the deeds and thereafter it would be unenforceable. There can be no doubt, therefore, that both parties understood that the stipulation in the deeds of reconveyance required that the contract should be performed during period mentioned in the deeds and thereafter it would be unenforceable. The learned Sub-Judge while considering the main issue (issue No. 4) in the suit, namely whether the plaintiff was entitled to a decree for specific performance examined the terms of the deed and has observed that the terms clearly indicated that time was of the essence of the contract. I do not think he was precluded from coming to this conclusion on an interpretation of the terms of the deeds even if there was no separate and specific issue in this regard. What he was doing was merely to determine the legal purport of the stipulation in the deed and I do not understand how, for considering what is stipulated in the deed, oral evidence could be led. Section 91 of the Evidence Act would operate as a bar. I, therefore, do not find any merit in this contention. Hence under S. 55, Contract Act, the defendants are fully within their rights in refusing to execute the sale deed. It was also urged on behalf of the appellant that the notice had been admittedly received by the defendants on 11-2-74 and through this notice the plaintiff indicated her readiness and willingness to tender the money and perform her part of the contract and so this should be regarded as a proper and valid tender and hence her suit should be decreed. It is argued that this tender should be deemed to be within the stipulated period as month of Magh according to the Saka calendar had not yet expired. The plaintiff does not appear to have mentioned at any time, except at the time of argument in the trial Court, that the National Saka Calendar should be deemed to apply. The learned Sub-Judge has considered this point and has observed that the Calendar which is commonly prevalent is the Sambat era and hence the plaintiff's contention was not tenable. It may be noted that the defendants clearly mentioned in the written statement that the notice had been received by them on 11-2-74 in the month of Falgun. The learned Sub-Judge has considered this point and has observed that the Calendar which is commonly prevalent is the Sambat era and hence the plaintiff's contention was not tenable. It may be noted that the defendants clearly mentioned in the written statement that the notice had been received by them on 11-2-74 in the month of Falgun. The defendants, therefore, clearly indicated that the stipulation in the reconveyance deeds about tender to be made in the month of Magh was according to the Sambat Calendar. The defendant (D.W. 3) also clearly stated in his evidence that he did not consider it necessary to send any reply to the notice as it had been received after expiry of the contractual period. The plaintiff never challenged at any stage the assertion in the W.S. or in the testimony of D.W. 3. In the evidence of any of the P.Ws., there is not even a whisper that National Saka Era was to apply. If the National Saka Era was supposed to apply, the plaintiff certainly would have controverted the defendants assertion in the written statement that the notice had been received in the month of Falgun and she would have cross-examined D.W. 3 or at least given a suggestion in this regard. But nothing of the kind has been done. It has been urged on behalf of the respondents that when the plaintiff realised that the pleadings and the evidence in the case went against her and that she was likely to be non-suited on account of expiry of the stipulated period, the point about the applicability of the National Saka Calender was raised for the first time in course of argument. Since on the basis of the pleadings and the evidence this point is untenable, the learned Sub-Judge was fully justified in rejecting in same. In view of the discussions above, I do not find any merit in this appeal and it is hereby dismissed with costs. Hearing fee Rs. 64. Appeal dismissed.