JUDGMENT - A.A. DESAI, J.:---By this appeal the original defendants have challenged the judgement and decree dated 18th of July, 1983, ordering them to execute a sale deed, pursuant to the agreement of safe dated 11th of October, 1978 in favour of the respondent/original plaintiff. This appeal amongst other requires us to ascertain, on construction of the agreement, as to whether the intention of the parties was to make the time as the essence of the contract. 2. The appellants/defendants since having various shares, are the joint owners of the suit property known as Laxmi Talkies, Sitabuldi, Nagpur. The respondent/plaintiff, a private limited company deals in exhibition of films and also owns cinema theatres. The parties after negotiations for a considerable period settled the terms and conditions of the agreement of sale. The defendants on 5th of October, 1978 received Rs. 1,00,000/- as an earnest money. The parties thereafter on 11th of October, 1978 recorded (Exh. 90) an agreement of sale. Accordingly, the plaintiff agreed to purchase the suit property for a total consideration of Rs. 15,00,000/- (Rs. 12,00,000/- for Talkies and Rs. 3,00,000/- for moveables, fixtures etc.). The balance consideration of Rs. 14,00,000/- was to be paid on or before 15th of March, 1979 at the time of execution and registration of a sale deed. 3. According to the plaintiff, for execution of a deed of sale, the defendants were required to obtain permission from the Income Tax Department, clearance from Reserve Bank of India for payment of consideration to some of the non-residents-defendants and also permission for sale from the competent authority under the Urban Ceiling Act. The defendants, however, failed to obtain the requisite permissions and clearance before 15th of March, 1979. The defendants by a letter 17th of February, 1979 sought extension upto 22nd of March, 1979 for executing the sale deed. They have by another letter dated 6th March, 1979 asked the plaintiff to indemnify them to the extent of Rs. 5,75,000/- against the contemplated liability of Income Tax on the capital gain. However, by a telegram dated 16th of March, 1979 they have informed that since the sale deed could not be executed before 15th of March, 1979 the agreement had come to an end. The plaintiff by a letter dated 25th of March, 1979 had shown their willingness to get the sale deed executed. However, the defendants did not reply. However, by a telegram dated 16th of March, 1979 they have informed that since the sale deed could not be executed before 15th of March, 1979 the agreement had come to an end. The plaintiff by a letter dated 25th of March, 1979 had shown their willingness to get the sale deed executed. However, the defendants did not reply. The plaintiff has, therefore, filed the suit claiming specific performance of the agreement dated 11th October, 1978. 4. The defendants by their written statement resisted the claim. According to them, the sale deed was to be executed on or before 15th of March, 1979, i.e. the period stipulated under the agreement. According to them, the period of Finance Act, 1978 was to expire by 31st of March, 1979. The period from 16th of March, 1979 to 31st of March, 1979 was required so as to enable them to invest sale-proceeds in securities as provided under section 54(E) of the Income Tax Act, 1961. They would have then saved payment of tax on the capital gain estimated at about 5.75 lakhs. It was further stated that the plaintiff has committed defaults by not furnishing the Bank guarantee and by not paying Rs. 4,00,000/- in terms of the agreement. The defendants asserted that as per Clause 6, the agreement failed since the sale-deed was not executed on or before 15th of March, 1979 for whatever reason. According to the defendants the time was made the essence of the contract. 5. The parties after the agreement, have exchanged correspondence through their lawyers which they have filed on record. Parties have also examined the P.W. 1 Kamalkishore Rathi who is a Director of the plaintiff Company. P.W. 2 Mohan an employee of the Punjab National Bank, P.W. 3 P.P. Deo Advocate who represented the plaintiff, D.W. 1 Shri Sane the defendant, D.W. 2 Shri Joshi, Tax Consultant of the defendant, D.W. 3 Advocate Padhye who represented the defendant and D.W. 4 Tambe, a Bank employee. 6. The learned trial Judge amongst other framed issue No. 3 as to whether the defendants prove that the time was the essence of the contract ? The learned Judge discussed this question in paras 27 to 38 of the impugned judgment and answered the same in negative. 6. The learned trial Judge amongst other framed issue No. 3 as to whether the defendants prove that the time was the essence of the contract ? The learned Judge discussed this question in paras 27 to 38 of the impugned judgment and answered the same in negative. The learned trial Judge for his reasonings and finding sought guidance from the rulings reported in (Gomathinayagani Pillai v. Palani Swami Nadar)1, A.I.R. 1967 Supreme Court Page 868, (Govind Prasad Chaturvedi v. Palai Dutt Shasi)2, A.I.R. 1977 Supreme Court, page 1003 and (State of Maharashtra v. Digamber Balwant Kulkarni)3, A.I.R. 1979 Supreme Court Page 1339. The learned Judge has observed that Supreme Court has laid down that even where the parties have expressly provided that the time is the essence of the contract, such a stipulation will have to be read alongwith other provisions of the contract, and such other provisions made on construction of the contract may exclude the inference that the performance of something by a particular date was intended to be a fundamental. The intention to make time as the essence if expressed in writing must be in a language which is unmistakable. It may also be inferred from the nature of the property agreed to be sold, conduct of the parties and surrounding circumstance at or before the contract. 7. The learned Judge has observed that the defendants have not made the application to the Urban Ceiling Authorities well in time and these applications were lying with Advocate Padhye from 29th of December, 1978 to 14th of January, 1979. Besides this Vendors, i.e. defendants have not obtained the certificate from the Income Tax Authorities before 15th March, 1979, which is required under the provisions of the Income Tax Act, 1961. Clearance certificate was not obtained from the Reserve Bank of India for payment of sale consideration to the non-residents by that date. Moreover, Mrs. Sandhya Desai (one of the defendant) was not available at Nagpur on or before 15th of March, 1979 to execute the sale deed. The learned trial Judge has held that taking these, factors into consideration, it was evident that the parties did not treat time as the essence of the contract. However, before 15th of March, 1979 there was no notice from the appellants-defendants ceiling upon the plaintiff to execute the sale deed. The learned trial Judge has held that taking these, factors into consideration, it was evident that the parties did not treat time as the essence of the contract. However, before 15th of March, 1979 there was no notice from the appellants-defendants ceiling upon the plaintiff to execute the sale deed. They have also not disclosed their intention that the agreement would come to an end if the deed is not executed before that date. 8. The learned trial Judge while examining various stipulations under the agreement has observed that clause 6 which says that the time is the essence of the contract, is to be read alongwith Clauses 8 and 14. It is observed that clause 8 merely shows that if deed is not executed by 15th of March, 1979 for any reason even beyond the control of Vendor and Purchaser the agreement will fall through. However, according to the learned trial Judge, Clause 14 begins with non-obstante clause which shows that the operation of clause 6 is subject to Clauses 8 and 12. The learned Judge, therefore, held that whatever might have been written in clause 6, the contents of clauses 8 and 12 will prevail. The learned Judge, therefore, reached to the conclusion in para 38 "in my opinion when clause 6 is read with clauses 8, 12 and 14, it becomes apparent that the intention of the parties was not to treat the date 15th March, 1979 as a deadline for all purposes and thus I hold that the time was not the essence of the contract. 9. Mr. Palshikar, the learned Counsel appearing for the appellants defendants very vehemently assailed the reasoning and findings recorded by the trial Court in holding that the time was not made the essence of the contract. According to Shri Palshikar, the learned trial Judge has completely misread the stipulations in various clauses of the agreement, Mr. Palshikar submitted that the parties unequivocally settled the terms with a definite intention to make time as the essence of the contract and the learned Judge has completely misconstructed agreement. Mr. Manohar, the learned Counsel appearing for the respondent/plaintiff on the other hand supported the reasoning and findings recorded by the trial Court. It is submitted that in a matter of transfer of immovable property the time is normally not presented to be the essence of the contract. According to Mr. Mr. Manohar, the learned Counsel appearing for the respondent/plaintiff on the other hand supported the reasoning and findings recorded by the trial Court. It is submitted that in a matter of transfer of immovable property the time is normally not presented to be the essence of the contract. According to Mr. Manohar, the defendants have not brought any circumstance on record, to deviate from this settled presumption. Even the various stipulations in the agreement do not indicate to the contrary. 10. We propose to examine the circumstances and also the situation as prevailing at the time or before the execution of the agreement, keeping in view of the guidelines tendered by the Supreme Court. It is revealed that the defendant No. 1, a civil engineer who was for some time in the service of the Municipal Corporation and then entered into business as a Contractor. He built up the suit property i.e. Laxmi Theatre in 1952. He leased out the theatre and there was a prolong litigation for seeking possession. He ultimately obtained the possession some time in 1973. It is a common knowledge that the business of exhibitor has always been flourishing. The defendant pleaded that because of his old age and he had none to support, he thought of disposing of the Laxmi Theatre. He had negotiations with the plaintiff few months before the agreement. The defendants in para 7 has pleaded that 15th of March, 1979 as a date of execution sale deed was insisted with a view to avail the benefit of Finance Act, 1978 as the period thereunder was to expire by 31st of March, 1979. The plaintiff wanted to have 15 days at his disposal to invest the sale proceeds by way of security under section 54 of the Act. The vendors were thereby planning to save the tax on capital gain which they estimated to the extent of Rs. 5,75,000/-. It appears, if the sale proceeds are not invested before 31st of March, 1979, they will be liable to pay income tax on the capital gain. The defendant No. 1 also accordingly deposed in his evidence (Paragraph 15) in cross-examination by the plaintiff. Even the plaintiff has not in any manner seriously challenged this statement as taken by the defendant in their pleadings and also in depositions. The defendant No. 1 also accordingly deposed in his evidence (Paragraph 15) in cross-examination by the plaintiff. Even the plaintiff has not in any manner seriously challenged this statement as taken by the defendant in their pleadings and also in depositions. It is therefore, apparent that 15th of March, 1979 as a date for the execution of the sale deed was settled with a definite purpose. 11. The plaintiff are also the exhibitors. Exhibiting cinema films has always been a flourishing and lucrative business. It is considered to be profit making with entire certainty. It is reported that the plaintiff company also own Anand Talkies at Nagpur which is adjacent to Laxmi Theatre. Laxmi Theatre is in the heart of the city of Nagpur. The plaintiff as can be seen from the correspondence addressed to the Bank Exh. 95 dated 18th October, 1978 was expecting good returns from the transaction of purchase. 12. Taking into accounts, the position of the parties and a nature of the suit property, the execution of a sale deed, the parties cannot reasonably afford to keep for uncertain period. Even for these reasons the parties have obviously agreed to complete the transaction within the definite period. These various aspects do indicate that the parties had a definite intention to make time as the essence of the contract. The learned trial Judge has not correctly examined these pertinent aspects. 13. The Supreme Court in (Hind Construction Contractors v. State of Maharashtra)4, A.I.R. 1979 Page 720 held that the question whether or not time was of the essence of the contract would essentially be a question of the intention of the parties to be gathered from the terms of the contract. To ascertain the true nature and import of the agreement, we propose to produce the substance of the relevant clauses of the agreement. (Reproduced extenso in para 22 of the impugned judgement). (a) (Clause 2) "The vendee agrees to pay balance consideration by 15th March, 1979 at the time of execution and registration of the sale deed. The vendee further agree to furnish the guarantee by 12th December, 1978." (b) (Clause : 3) In case of failure to comply Clause 2, the vendee agreed to pay Rs. 4,00,000/- by 14th December, 1978 thereof. On default, the agreement to fail. This amount was to be kept in saving bank account of the Bank of Maharashtra, Nagpur. The vendee further agree to furnish the guarantee by 12th December, 1978." (b) (Clause : 3) In case of failure to comply Clause 2, the vendee agreed to pay Rs. 4,00,000/- by 14th December, 1978 thereof. On default, the agreement to fail. This amount was to be kept in saving bank account of the Bank of Maharashtra, Nagpur. (c) (Clause : 4) The agreement will fail through if the deed is not executed by 15th March, 1979 for any reason even beyond the control of the parties. Earnest money is to be refunded. This is the essence of the contract. (d) If on 15th March, 1979 the contracts fail through (Clause 4) for no fault of the Vendee and for beyond the control of Vendor the amount of Rs. 4,00,000/- with interest to be refunded and (Clause 5) on account of the default of the vendee than this amount of Rs. 4,00,000/- to be adjusted towards the damages. (e) (Clause : 8) The agreement will fall through if the refusal to grant permission to sale under Urban Ceiling Act, is maintained by the High Court. (f) (Clause : 9) The Vendee to pay Municipal Taxes till 15th March, 1979. (g) (Clause : 12) The Vendor to get lease deed of the land registered from Municipal Corporation before the execution of the sale deed under this statement. (h) (Clause : 14) Notwithstanding anything contained in Clause 6, in case the purchaser commits breach of this agreement and does not take the sale deed within the stipulated time subject to Clauses 8 and 12 above, then the vendor to forfeit Rs. 50,000/- out of the amount paid as the earnest money. (Emphasis is supplied by us). On going through the various stipulations, it is apparent that the parties have consciously maintained 15th March, 1979 as a date for execution of the sale deed. 14. Mr. Manohar, made a submission that Clause 6 has no doubt specifically stipulated that the time as the essence of contract. If Clause 6 is read with Clauses 8, 12 and 14, it would be clear that the parties never intended to make the time as the essence of the contract. Clause 6 has specifically laid down that on failure to execute the sale deed before 15th of March, 1979 for any reason even beyond the control of the parties, the agreement will fall through. Clause 6 has specifically laid down that on failure to execute the sale deed before 15th of March, 1979 for any reason even beyond the control of the parties, the agreement will fall through. The language used in this Clause is completely unambiguous. The stipulation "for any reason" means and includes even the negligence, default, personal difficulties, unpreparedness etc., of the parties. This term comprehends besides, these also those reasons which are beyond the control of the parties. Clause 6 has specifically laid down that this is the essence of the contract. The parties with unmistakable terms expressed their intention, in this clause. 15. Mr. Manohar inviting our attention to clause 8 made a submission that the agreement will fall through only when refusal to grant permission to sell by the competent authority under Ceiling Act, is maintained by the High Court. In the submission of Mr. Manohar, the agreement subsists till the verdict of the High Court and which practically cannot be expected at any rate earlier to 15th of March, 1979. According to us, this is not the correct import of the stipulation under Clause 8. As per Clause 6 the sale deed is to be executed by the 15th of March, 1979. However, the agreement will fall through even earlier if the refusal of the competent authority is maintained by the High Court as provided under Clause 8. In case the High Court reverses the decision of refusal of the competent authority and such verdict comes after 15th of March, 1979, in that eventuality the clause does not oblige the parties to wait beyond 15th of March, 1979. Under this clause by any stipulation implied or expressed, parties have not committed to execute the deed of sale if permission is awarded by the High Court after 15th of March, 1979. 16. It is contended by the learned Counsel that taking into account the time factor involved in such matter, it cannot be said that the parties intended to maintain 15th of March, 1979 as a deadline. This submission does not gain support from the stipulation of the agreement. The parties as apparent are resourceful and equipped with worldly knowledge including that of legal affairs. They were guided by seasoned and experienced legal man. This submission does not gain support from the stipulation of the agreement. The parties as apparent are resourceful and equipped with worldly knowledge including that of legal affairs. They were guided by seasoned and experienced legal man. It would be unfair to say that while drafting Clause 8, they did not visualise the time factor involved in the ultimate verdict to be received from the High Court. They otherwise would have inserted a stipulation that sale deed to be executed on getting favourable verdict from the High Court notwithstanding anything contained in Clause 6. The omission to and such stipulation appears to be with a definite intention of not to cross dead line i.e. 15th March, 1979 and make the time as the essence of the contract with entire certainly. The parties have taken care of this contingency in Clause 6 which says that the agreement to fall through if sale deed is not executed before 15th March, 1979 for any reason even beyond the control of the parties. In view of this, according to us, the submission of Mr. Manohar that the agreement subsists even beyond 15th of March, 1979 till refusal is maintained by the High Court does not flow from the correct reading of Clause 8. Similar is the import of Clause 12 whether the vendor is obliged to obtain the lease deed duly executed from the Municipal Corporation. 17. According to Mr. Manohar, on correct reading and on true construction of the stipulation laid down, Clause 14 extends time beyond 15th March, 1979 till the compliance of Clause 8 and 12. It is submitted that if 15th of March, 1979 is held to be a dead line, then Clause 14 becomes redundant. Clause 14 begins with non-obstante clause notwithstanding anything contained in Clause 6. This clause no doubt provides overriding effect over the provisions laid down under Clause 6, but for a limited purpose. Clause 6 requires the vendor to return the entire earnest money if deed is not executed by 15th of March, 1979 for any reason even beyond the control of the parties. However, Clause 14 provides that in case the purchaser commits breach and does not take the sale deed within the stipulated time subject to Clauses 8 and 12, the vendor is entitled to forfeit 50,000/-. However, Clause 14 provides that in case the purchaser commits breach and does not take the sale deed within the stipulated time subject to Clauses 8 and 12, the vendor is entitled to forfeit 50,000/-. The over-riding effect given by Clause 14, therefore, is only to the extent of right of the vendee to claim refund of entire earnest money which is provided in Clause 6. Further reading of Clause 14 will show that the Vendee is saved from such penalty if he fails to take the sale deed within stipulated time subject to Clauses 8 and 12. It means that the Vendee is exonerated from such liability if requirements under Clauses 8 and 12, i.e. obtaining permission from the competent authority under Urban Ceiling Act and execution of lease deed of the land are not satisfied before 15th of March, 1988. Besides this, Clause 14 does not affect the stipulation under Clause 6. Clause 14 thus does not obliterate the intention of parties as expressed in an unambiguous term under Clause 6 that the agreement will fall through if the deed is not executed by 15th of March, 1979 for any reasons even beyond the control of parties. The finding of the learned trial Judge that the operation of Clause 6 is subject to Clauses 8 and 12 is patently illegal. The learned trial Judge is also not right in holding that the stipulations in Clauses 8 and 12 prevail over Clause 6. Submission of Mr. Manohar that Clause 14 extends time till Clauses 8 and 12 are complied, according to us, is inconsistent with various stipulations of the agreement. 18. We hold on reading various stipulations of the agreement that parties have settled with a definite intention to make time as the essence of the contract. The same is fundamental in the matter of governance of the right and obligation of the parties. That the intention of parties as explict through Clause 6 is not susceptible in any manner even if we read the same along with Clauses 8, 12 and 14. On the contrary, according to us, as discussed the intention as recorded in Clause 6 has been maintained and fortified by the stipulations in other clauses. The parties have decided in unequivocal terms 15th of March, 1979 as a deadline. On the contrary, according to us, as discussed the intention as recorded in Clause 6 has been maintained and fortified by the stipulations in other clauses. The parties have decided in unequivocal terms 15th of March, 1979 as a deadline. The agreement has come to an end on failure to get the execution of the sale deed before 15th March, 1979. The plaintiff as such is not entitled to claim specific performance of execution of a deed of sale, pursuant to the agreement dated 11th October, 1978. 19. Mr. Manohar inviting our attention to a decision reported in (Popatlal Manishaukar Pandya v. Nenalal Nagardas Vora)2, 1987 Mh.L.J. 1055 made a submission that to make the time as the essence of the contract, the language used in the agreement must be unmistakable and unambiguous. We have discussed this aspect in detail. The stipulations under the agreement stand to the test as laid down by the decision cited supra. Mr. Manohar then invited our attention to a decision reported in Govind Prasad Chaturvedi v. Hari Dutt Shashi, A.I.R. 1977 Supreme Court 1005. The Supreme Court was examining the clause of the agreement which reads thus : "Clause 4 : That you must get the sale deed executed within two months i.e. upto 24th May, 1964 and in case you do not get the sale deed registered within two months, then the earnest money of Rs. 400/- paid by you shall stand forfeited without serving any notice. But in case we in some way evade the execution of the sale deed, then you will be entitled to compel us to execute the same." Considering this clause the Supreme Court has held that the language used in the agreement is not such as to indicate in unmistakable terms that the time is the essence of the contract. The intention to treat the time as the essence of the contract may be evidenced by the circumstances which are sufficiently strong to dispel the normal presumption that in a contract of sale of land time is the essence of the contract. As discussed, the language of the various stipulations of the agreement before us and circumstances as they are apparent repeal the normal presumption with full force. 20. Mr. As discussed, the language of the various stipulations of the agreement before us and circumstances as they are apparent repeal the normal presumption with full force. 20. Mr. Manohar then made a submission that the conduct of the defendant in not acting diligently for completing the formalities such as clearance from Income Tax, permission for the Reserve Bank of India and Competent Authority under Urban Ceiling Act goes to show that they have never held the time as essence of the contract. Mr. Manohar further pointed out that non-availability of Mrs. Desai before 15th of March, 1979 at Nagpur for executing the sale deed also fortifies such intention. According to the learned Counsel, taking into account totality of these aspects, it cannot be said that the time was made as the essence of the contract. When the definite intention in unmistakable terms is eloquent from the document, the conduct of the parties subsequent to execution of the agreement cannot be pressed to suggest to the contrary or derrogatory. Moreover, the parties while making the time as the essence of the contract adequately took proper care and caution of all contingencies such as negligence, default, callous attituted, by making necessary stipulation under Clauses 4, 5, 6 and 14. Particularly clause 6 has been articulated contemnplating all these contintencies and, therefore, it has been worded "failure to execute the sale deed by 15th of March, 1979 for any reason even beyond the control of the parties." As discussed, "any reason" also takes care of such conduct and attitude of the parties subsequent to the Agreement. From the such conduct and attitude of the parties if we spell out that the intention of the parties was not to treat the time as essence of the contract, that would amount to render unfair and unjust treatment beside intentions to approach, aspiration, expectations of the parties as they prevailed on or earlier to 11th October, 1978 and which persuaded them to enter in the transaction. Conduct subsequent to the agreement is to be taken into account only to subject the party at default to any penalty like forfeiture, as provided under the Agreement. 21. Even the submissions of Mr. Manohar is factually erroneous Mr. Padhey by a letter dated 17th of February, 1979 sent to Shri P.P. Deo (Exh. 129) proposed that various formalities will be completed by 22nd of March, 1979 and Mrs. 21. Even the submissions of Mr. Manohar is factually erroneous Mr. Padhey by a letter dated 17th of February, 1979 sent to Shri P.P. Deo (Exh. 129) proposed that various formalities will be completed by 22nd of March, 1979 and Mrs. Desai is coming from Bombay on 20th or 21st of March, 1979 and, therefore, 22nd March, 1979 would suit for registration of the assignment deeds. Mr. Padhey categorically pin pointed that under the agreement 15th March, 1979 is the last date to complete the transaction. Mr. Padhey further wrote, but looking to the bona fide delay. Mr. K.V. Sane (defendant) is agreeable to extension of time till 22nd of March, 1979, if the purchaser is also agreeable, it being harmless. The parties if were never to treat the time as the essence of the contract, then there was no propriety for the defendant or his Counsel to seek the extension. In fact, they were conscious that the time being the essence of the contract, 15th March, 1979 is the last date for execution and, therefore, they submitted a proposal for extension to be accepted by the plaintiff. They were aware that they cannot unilaterally extend the time, or execute the deed as per their convenience. This aspect of the matter also goes to suggest that the time was held to be the essence of the contract. 22. Mr. P.P. Deo, Advocate addressed a letter dated 7th March, 1979 to Shri Padhey Advocate (Exh. 141) wherein he has expressed his agony towards the conduct of the defendant. In para 3 of the letter Mr. Deo has stated that "This is regrettable particularly in view of the inordinate delay on your part in making the necessary applications. The applications should have been made earlier so that 60 days would have expired well before 15th of March, 1979. This also strengthens the inference that the parties intended to conclude the contract by 15th of March, 1979 being the essence. Mr. Deo further reiterated in the said letter that because of the delay, the defendants have rendered themselves incapable to execute and register the assignment deed by 15th of March, 1979. Mr. This also strengthens the inference that the parties intended to conclude the contract by 15th of March, 1979 being the essence. Mr. Deo further reiterated in the said letter that because of the delay, the defendants have rendered themselves incapable to execute and register the assignment deed by 15th of March, 1979. Mr. Deo further wrote in para 8 of the said letter "If Shri K.V. Sane and his associates failed to execute the deeds (as they intend to do as per your letter) within the time limited by the agreement and if thereby they have to bear any tax on their respective capital gains, they must thank themselves for what they have been doing all this time." The contention of this letter clearly suggest that parties had constantly treated 15th of March, 1979, as a dead line. 23. The defendant by their letter dated 17th of February, 1979 as discussed earlier made an attempt to seek extension for execution of sale deed by 22nd of March, 1979. However, there was no acceptance to this proposal. Mr. Manohar, the learned Counsel could not show as any document whereunder offer of extension upto 22nd March, 1979 has been accepted by the plaintiff. As such the dead line for execution of sale deed as provided under the agreement was never agreed to be crossed. Mr. Deo in his letter dated 4th March, 1979 (Exh. 158) has not made even reference to letter dated 17th of February, 1979. On the contrary he advised to carry out the execution by the time agreed. Mr. Manohar inviting our attention to para 9 of letter dated 7th March, 1979 has submitted that the plaintiff has been always ever ready and willing to complete the transaction. According to Mr. Manohar, these averments can impliedly suggest the acceptance to the proposal of the defendant. In said Para Mr. Deo has written that "My clients have been always ready and willing to complete the transaction and have been requesting all along to take the necessary steps in time (emphasis supplied). These averments do not suggest that the plaintiff has unconditionally accepted the offer of extension. Mr. Deo in his deposition does not say that his letter dated 17th March, 1979 was in reply to letter dated 17th February, 1979 or the plaintiff have accepted the proposal. These averments do not suggest that the plaintiff has unconditionally accepted the offer of extension. Mr. Deo in his deposition does not say that his letter dated 17th March, 1979 was in reply to letter dated 17th February, 1979 or the plaintiff have accepted the proposal. On the contrary, the plaintiff has suggested that they were ready and willing to complete the transaction before 15th of March, 1979 and was therefore, requesting the defendant to take necessary steps in time. The defendant on 16th March, 1979 telegraphically (Exh. 145) informed that on failure to get execution of sale deed by 15th March, 1979, the Agreement has come to an end. 24. The plaintiff vide letter dated 10th December, 1978 (Exh. 78) requested the Bank to issue Bank Guarantee before 10th December, 1978. They have also explained their requirement for Bank guarantee for a period from 10th December, 1978 to 15th March, 1979 i.e. till the date of sale deed. The Bank also by letter dated 22nd December, 1978 (Exh. 106) informed the defendants that their liability of Bank Guarantee shall not extend beyond 14th March, 1979. The plaintiff in a letter dated 13th December, 1978 (Exh. 119) wrote to the Reserve Bank of India that transaction and payment to the sellers will be completed by 15th of March, 1979. The plaintiff by letter dated 23rd January, 1979 (Exh. 135) to the Punjab National Bank complained about delay in sanction of loan and furnishing of Bank guarantee. Even otherwise, these aspects certainly demonstrate that the plaintiff was not unmindful of the time being the essence of the contract. 25. P.W. 1 Mr. Kamal Kishore Rathi in para 5 of his evidence has stated that on or about 28th of February, 1979 he had reached to Nagpur to purchase the requisite stamps for executing the sale deed. It appears from his deposition that he abandoned the idea of purchasing the stamp since Mr. Deo informed him that according to defendants sale deed was to be executed on 21st March, 1979 as per letter Exh. 129. If the testimony of P.W. 1 is accepted then he also kept in mind to execute the sale deed before 15th of March, 1979 and reached to Nagpur for preparation thereof. Even this conduct of the plaintiff makes it crystally clear that even for the plaintiff 15th March, 1979 was the last date for execution. 129. If the testimony of P.W. 1 is accepted then he also kept in mind to execute the sale deed before 15th of March, 1979 and reached to Nagpur for preparation thereof. Even this conduct of the plaintiff makes it crystally clear that even for the plaintiff 15th March, 1979 was the last date for execution. The parties kept this in mind throughout. 26. Mr. Manohar then made a submission that the defendant were intending to avoid the execution contemplating the liability of Income Tax on capital gain to the extent of Rs. 5,75,000/-. According to Mr. Manohar, the defendants demanded Rs. 5,75,000/- from them besides the agreed consideration. Mr. Padhye by his letter dated 7th March, 1979 (Exh. 140) demanded the plaintiff to identify the defendant as against the proposed tax on capital gain. However, it does not mean that the defendants have demanded the cash of Rs. 5,75,000/- as submitted by Mr. Manohar. It is true that even such demand of indemnity is not contemplated under the agreement. The defendant was not entitled to claim the idemnity from the plaintiff. The plaintiff was, therefore, justified in refuting the claim by his letter dated 7th March, 1979 (Exh. 141). The plaintiff therein categorically stated that they are ever ready and willing to complete the transaction and have been requesting all along to take the necessary steps in time. However, the plaintiff by ignoring the demand of idemnity could have insisted for the execution of the agreement before 15th of March, 1979. The plaintiff has merely communicated their ready and willingness. Even by this date, i.e. 7th of March, 1979 there was no payment of Rs. 4,00,000/- the period for which expired on 14th of December, 1978, though P.W. 1 Kamal Kishore has stated of having cash balance in their various Bank Accounts. It is apparent that the plaintiff some how not being in a position to execute the agreement, was planning to drag the defendants beyond 15th of March, 1979. 27. Mr. Manohar, then submitted that for want of permission from the Urban Ceiling Authority, the defendants had no perfect title. As such, they were not legally competent to execute the sale in pursuance of the agreement. Mr. Manohar in this behalf placed reliance on the decision reported in (I.L.R. 1974 Bombay page 1207). 27. Mr. Manohar, then submitted that for want of permission from the Urban Ceiling Authority, the defendants had no perfect title. As such, they were not legally competent to execute the sale in pursuance of the agreement. Mr. Manohar in this behalf placed reliance on the decision reported in (I.L.R. 1974 Bombay page 1207). This Court has observed that even if the time is the essence of the contract there is no breach of contract by the purchaser if the seller has not perfected his title by the date the contract is to be completed. In that case, the plaintiff agreed to purchase the suit property which was the subject matter of attachment and sale in execution of award obtained by the Co-operative Society for an amount of loan advanced to the Vendor. This Court has, therefore, observed "in the present case it is quite clear from the record that in September, 1963 the auction sale was set aside and, therefore, defendant No. 1 till then unable to perfect his title to the property." That ratio of this case has no application. 28. As per Clauses 15 and 16 of the agreement, the plaintiff was only satisfied about the title of the defendants in respect of the suit property. P.W. 1 Kamalkishore Rathi in his deposition has also stated to that effect. 29. Mr. Manohar then contended that the defendant being a defaulter in the matter of requisite clearance, permission and availability of Mrs. Desai for execution of the sale deed, is not legally entitled to revoke the agreement on the ground that the time was the essence of the contract. Mr. Manohar invited our attention to the decision reported in (A.I.R. 1978 Supreme Court 1074). (Sic) The Supreme Court in para 6 has observed "whether or not time was made an essence of the contract, would have also to be judged in the context and circumstances of the case. In a given case the Vendor can go away from his usual place of residence or business or go abroad without leaving his address. If time were to be treated as the essence in such a contract, the rightful claim of the Vendee should always be defeated by going away at the material time so that the Vendee could not enforce the same. 30. If time were to be treated as the essence in such a contract, the rightful claim of the Vendee should always be defeated by going away at the material time so that the Vendee could not enforce the same. 30. It is apparent that the defendant was struggling to complete the formalities since the time was considered to be the essence of the contract. D.W. Padhey immediately after agreement on 30th October, 1978 (Exh. 97) informed the plaintiff that he had sent two drafts for approval. But the plaintiff was not heard in that behalf. Mr. Padhye has specifically stated that after the receipt of a draft duly approved he would apply to the competent authority for permission to sale. It is specifically emphasised by Mr. Padhye that we must apply for permission by 15th of November, 1978 so as to obtain the permission by 15th January, 1979. D.W. Mr. Padhey by another letter dated 23rd November, 1978 (Exh. 102) has made a complaint to the plaintiff that he is not getting full co-operation from their side in the matter of submitting various applications to the Reserve Bank of India or to the Competent Authority under the provisions of the Urban Ceiling Act. It appears from the record that the plaintiff's Counsel Shri P. Deo was making the venture for verification of the title of the property and regarding shares of various defendants. In fact, as stipulated under the agreement the plaintiff was duly satisfied about the title of the defendants. As such, this attempt on the part of the plaintiff does not depict the genuineness to carry out the agreement as per the stipulation. P.W. Mr. Deo by his letter dated 6th December, 1978 (Exh. 115) has mentioned that "Both the parties are trying their best to implement the agreement and it is beyond their power to keep up the schedule." Mr. Manohar inviting our attention to the deposition of Mr. Padhey submitted that the applications were lying with him from 29th December, 1978 till 14th January, 1979 and there was no explanation. 31. As per Clause 8 of the agreement and even according to the provisions of the law, to obtain permission from the competent authority under the Urban Ceiling Act was a joint venture of Vendor and Vendee. Under Clause 8 the Vendee was obliged to expedite the work. 31. As per Clause 8 of the agreement and even according to the provisions of the law, to obtain permission from the competent authority under the Urban Ceiling Act was a joint venture of Vendor and Vendee. Under Clause 8 the Vendee was obliged to expedite the work. However, that the applications and sale deed forwarded by Mr. Das to Mr. Padhey for approval were lying with Mr. Deo for a considerable time. D.W. 3 Mr. Padhey has specifically stated in his deposition that Mr. Diwan (the Manager of the plaintiff) had assured that he will see that the permission of the Urban Ceiling Authority will be received within a short period and so the defendant No. 1 handed over the acknowledgement/receipt given by the authority to Shri Diwan. The defendants have also pleaded in this behalf in their written statement. Inability of Mr. Padhey to explain, as canvassed by Mr. Manohar, cannot be taken to mean that the defendants were acting with a design to commit default or evade the Agreement. 32. As regards the clearance from the Reserve Bank of India for payment of consideration to be made to the non-residents, the same was to be sought by the Vendee. The leasedeed from the Corporation was available before 15th of March, 1979. Mrs. Desai if so insisted could be made available even before 15th March, 1979. D.W. Mr. Padhey immediately on 19th October, 1978 (Exh. 92) submitted this draft application to be sent by plaintiff which are addressed to the Reserve Bank of India for permission to make the payment to the non-residents Vendor. It is thus evident that the defendant with their entire anxiety were making sincere attempts to fulfill various conditions in the agreement. In view of this decision cited supra does not support the submission of Mr. Manohar. 33. As per Clause 2 of the agreement, the plaintiff was under obligation to furnish the Bank Guarantee for the balance consideration by 12th of December, 1978. In default they were further obliged to make payment of Rs. 4,00,000/- by 14th December, 1978. The trial Court in para 18 has rightly held that the plaintiff has neither furnished the Bank guarantee nor deposited Rs, 4,00,000/- in the Maharashtra Bank. However, the learned Judge has observed that on that count the defendants did not put an end to the agreement. 4,00,000/- by 14th December, 1978. The trial Court in para 18 has rightly held that the plaintiff has neither furnished the Bank guarantee nor deposited Rs, 4,00,000/- in the Maharashtra Bank. However, the learned Judge has observed that on that count the defendants did not put an end to the agreement. According to the learned trial Judge, the parties have not attached much importance to Clauses 2 and 3 of the agreement. The learned trial Judge, therefore, reached to the conclusion that the defendant's failure to object and notify the termination within a reasonable time, indicate his election to continue with the contract and amounts to a waiver. The learned trial Judge, therefore, held in para 32 that the defendants are not entitled to put an end to the contract only on the ground that the Bank guarantee was not furnished or Rs. 4,00,000/- were not deposited in the Bank of Maharashtra. 34. According to Clause 3, on failure to furnish the Bank guarantee or to pay Rs. 4,00,000/- the agreement of sale shall fall through. It means that as a consequence of failure the agreement of sale comes to an end automatically. Clause 3 does not require the Vendor to notify the termination of an agreement immediately on default by the Vendee. We are therefore unable to agree with the reasoning of the learned trial Judge. D.W. 1 Mr. Sane- defendant in his deposition has stated in para 5 that the plaintiff did not produce the Bank guarantee and did not deposit Rs. 4,00,000/-. I did not break the contract because the plaintiff was all the while saying that they will produce the Bank guarantee. I did not use my choice to terminate the contract, but reserved it. This conduct cannot be said to mean that the defendants have condoned the default or waived their objection. In fact, the agreement does not provide for any choice. 35. Mr. Palshikar the learned Counsel appearing for the defendant contended before us that the plaintiff being a defaulter, in equity is not entitled to a relief of specific performance of the contract. We find ourselves in agreement with the submission. It is pertinent to note that the plaintiff even after the stipulated time has never furnished the Bank guarantee nor deposited Rs. 4,00,000/- in the Bank of Maharashtra. We find ourselves in agreement with the submission. It is pertinent to note that the plaintiff even after the stipulated time has never furnished the Bank guarantee nor deposited Rs. 4,00,000/- in the Bank of Maharashtra. Entire conduct of the plaintiff as reflected do not show that they have acted in a good faith. 36. Mr. Manohar made a submission that the plaintiff could not furnish the Bank guarantee for want of necessary co-operation from the defendants. According to Mr. Manohar, the defendant failed to supply the necessary documents required by their Banker. We cannot accept this submission. Agreement does not cast any obligation on the defendant to supply any document for the satisfaction of the Banker of the plaintiff. Furnishing Bank guarantee was the exclusive responsibility of the plaintiff. The plaintiff as appears was quite resourceful and was also owner of the some talkieses. The plaintiff cannot make themself dependent on the documents regarding the title of the defendant for furnishing the Bank guarantee. Even otherwise, it appears from record that Punjab National Bank requisitioned various documents not for furnishing the Bank guarantee by the plaintiff in favour of the defendant, but for grant of loans to purchase the suit property. P.W. Mr. Deo, Advocate, has deposed that if the purchaser (plaintiff) makes a default, the Bank would purchase the property. Thereby the Bank becomes the owner and not the mortgagee. This further makes it clear that the plaintiff has made an attempt to obtain the loan on the strength of the title of the suit property. It is further evident from letter dated 29th of November, 1978, from the Bank to the plaintiff wherein they have asked for several documents such as lease deed, valuation report of the suit property and states of various defendants and their citizenship. The Bank has categorically asserted that the Bank guarantee could be released only on compliance of the above requirements. Mr. Padhye by letter dated 5th of December, 1978 (Exh. 111) has specifically informed Mr. Deo that the time according to him, was too short now and the purchaser must ask the Bank of release the Bank guarantee within the time prescribed. Mr. Padhey by his letter dated 12th of December, 1978 (Exh. 116) clarified to Mr. Deo that the execution of the lease deed by the Corporation, cannot be said to be a condition for furnishing a Bank guarantee. Mr. Padhey by his letter dated 12th of December, 1978 (Exh. 116) clarified to Mr. Deo that the execution of the lease deed by the Corporation, cannot be said to be a condition for furnishing a Bank guarantee. He has further appraised that withholding the Bank guarantee for want of lease deed was neither correct nor desirable. It is, therefore, apparent that a plaintiff was not sincerely attempting to perform his part under the agreement. 37. Clause (3) of the agreement required the plaintiff in case of default to furnish the Bank guarantee, to deposit Rs. 4,00,000/- in saving bank account of the Bank of Maharashtra at Nagpur. Admittedly on failure to furnish the Bank guarantee the plaintiff has also not deposited Rs. 4,00,000/- as agreed. The plaintiff tried to tender an explanation that they obtained the Bank Draft of Rs. 4,00,000/-. The same also shown to Shri. Padhye. This Bank Draft was, however, cancelled on 16th December, 1978 and amount thereof was deposited by the plaintiff in their account in the Punjab National Bank at Amravati. The Bank wrote a letter to the defendants that payment would be released on furnishing clearance from the Reserve Bank of India in respect of Non-Resident. 38. According to the plaintiff, because of the impediment created by the Foreign Exchange Regulation Act, deposit could not be made for want of clearance for payment to non-residents. The position as contended was also prevailing on 5th of October, 1978 when plaintiff paid earnest money of Rs. 1,00,000/- Mr. Padhye by his letter dated 12th December, 1978 (Exh. 116) in view of the provisions of the said Act, proposed an amendment in the agreement to the effect "the sale deed could not be executed without the permission from the Reserve Bank of India." However, it does not appear from the record that the plaintiff have extended an approval to this clauses. 39. It is an admitted position that the defendants are having various unequal shares in the suit property and accordingly they were having proportionate claim in the amount of consideration to be paid by the plaintiff. The share and interest in the consideration have been shown in great details in para 18 of the plaint. Total share of non-resident is only 3 Annas. Even after taking into account, the interest of resident in India, the plaintiff could have paid the said amount of Rs. The share and interest in the consideration have been shown in great details in para 18 of the plaint. Total share of non-resident is only 3 Annas. Even after taking into account, the interest of resident in India, the plaintiff could have paid the said amount of Rs. 4,00,000/- towards the share in consideration of these defendants. However, the plaintiff failed to deposit the amount before 14th of December, 1978, in the Bank of Maharashtra. 40. Even otherwise, according to the plaintiff, the permission of the Reserve Bank of India was necessary only for making payment of consideration of moveable property whereas such permission was not necessary for payment of consideration of immovable property. The plaintiff has specifically pleaded in this regard in para 24. Even after this clarification is received from the Reserve Bank of India, the plaintiff has not deposited Rs. 4,00,000/-. Moreover, to seek such clearance for making payment to the non-resident was primarily, a responsibility of the plaintiff. The period under Clause 3 to deposit Rs. 4,00,000/- was to expire by 14th December, 1978. Mr. Padhye further by his earlier letter dated 12th December, 1978. Exh.116, proposed to extend the period mentioned therein upto 18th December, 1978. However, the same has not been accepted by the plaintiff. Mr. Deo further deposed that he advised the plaintiff not to make the payment. The conduct of the plaintiff may be even on the advise of the Counsel is wholly without justification. The plaintiff, as it is apparent, was not intending to comply with the conditions and to perform their part under the agreement faithfully. 41. The plaintiff by a letter dated 4th March, 1979 (Exh. 158) has informed that they are ready and willing to comply their part and are ready with funds to take the deeds even before the date agreed. This was also repeated as observed in letter dated 7th of March, 1979. The plaintiff No. 1 Kamalkishore Rathi has also deposed that the plaintiff was ready and willing to perform the contract on 7th of March, 1979. He stated that on 7th of March, 1979 he was ready to pay the balance consideration of Rs. 14,00,000/- for getting the saledeed executed. However, he has admitted that the Punjab National Bank sanctioned the loan of Rs. 6.50 lakhs to the plaintiff on 13th March, 1979. He stated that on 7th of March, 1979 he was ready to pay the balance consideration of Rs. 14,00,000/- for getting the saledeed executed. However, he has admitted that the Punjab National Bank sanctioned the loan of Rs. 6.50 lakhs to the plaintiff on 13th March, 1979. It is, therefore, evidence that the plaintiff though, repeatedly asserted was not ready with the funds and was also not willing to execute deed of sale. 42. As observed, the plaintiff were merely giving declaration of their readiness and willingness. However, they have not insisted for execution on 15th March, 1979 or earlier. They have not approached to the Registrar. D.W. 1 Suresh has categorically stated that he reached to Nagpur on 12th March, 1979 for execution of the sale deed and met Shri Deo on 13th March, 1979. He also told Mr. Deo that the Income Tax Clearance Certificate is ready with them. He stayed at Nagpur upto 16th March, 1979 but the plaintiff did not turn up for execution of the sale-deed. There is no cross examination of this witness in this behalf so as to discredit his testimony. As observed, that the time being the essence of the contract and plaintiffs did not make any attempt to get the sale deed executed before the stipulated period. The conduct does not afford any cause of action in his favour to seek the relief of specific performance. 43. The plaintiff has committed defaults in performing his part under the agreement. The breaches on their part were well calculated and well designed. The balance of equity, therefore, cannot turn in their favour. The plaintiff is not entitled to a equitable relief of specific performance of the agreement of sale. Their suit was liable to be dismissed. 44. Defendant on 18th March, 1979 returned the earnest money of Rs. 1,00,000/-. However, the plaintiff has not accepted the same and returned back the same to the defendants. The defendants are liable to pay the plaintiff Rs. 1,00,000/- as per Clause 6 as the Agreement failed. order Appeal is , allowed. The impugned judgment and decree passed by the Civil Judge, Senior Division, Nagpur in Civil Suit No. 185 of 1979 is hereby set aside. The suit of the plaintiff is dismissed. The defendants are directed to pay Rs. 1,00,000/- to be plaintiff within a period of two months. order Appeal is , allowed. The impugned judgment and decree passed by the Civil Judge, Senior Division, Nagpur in Civil Suit No. 185 of 1979 is hereby set aside. The suit of the plaintiff is dismissed. The defendants are directed to pay Rs. 1,00,000/- to be plaintiff within a period of two months. Plaintiff should pay cost to the defendants throughout and to bear their own costs. Appeal allowed. ------