S. P. KHARE, J. ( 1 ) THIS is a second appeal under Section 100, C. P. C. by the plaintiff. The following substantial question of law was formulated while admitting this appeal by order dated 6-4-1995:-"whether the finding of the Courts below on expression of willingness of the respondent/defendant No. 1 to the appellant/plaintiff for performance of his part of contract on the appointed day is perverse on the face of the record, thereby said counter-claim is barred by Section 16 (c) of the Specific Relief Act, 1963. " ( 2 ) THE facts relevant for the decision of the question referred above are that the plaintiff Tejilal was Bhumiswami of Khasara No. 109 area 2. 64 acres of village Padmi. Tehsil and District Mandla. He executed the agreement dated 12-6-1979 (Ex. D-1) to sell 0. 59 acre (0. 239 hectare) to defendant Dayal for a consideration of Rs. 3500/ -. He received an amount of Rs. 1500/- from the defendant on that date and delivered possession of this land to him. According to this agreement the registered sale-deed was to be executed on 1-5-1980 on receipt of the remaining amount of Rs. 2000/ -. The plaintiff filed the suit on 18-7-1980 for possession of the land without disclosing the fact of the agreement to sell. In the written statement the defendant by way of counter-claim demanded specific performance of contract stating therein that he was and is still ready and willing to pay Rs. 2000/- towards the performance of his part of the contract. The defendant has also stated that he obtained the parcha from the Patwari regarding the details of the land and went to the office of the Sub-Registrar. Mandla and waited for the plaintiff till the evening but the plaintiff did not reach there as per agreement. He sent the notice dated 13-5-1980 to the plaintiff but he did not comply with his demand for execution and registration of the sale-deed. ( 3 ) THE plaintiff amended his plaint by way of reply to the counter-claim and set up irrelevant pleas but he did not aver that the defendant was not ready and willing to perform his part of the contract. The trial Court granted the decree in favour of the defendant directing the plaintiff to execute the sale-deed in his favour on receipt of the amount of Rs. 2000/ -.
The trial Court granted the decree in favour of the defendant directing the plaintiff to execute the sale-deed in his favour on receipt of the amount of Rs. 2000/ -. The first appellate Court has affirmed this decree. ( 4 ) THE learned counsel for both the sides were heard. The plaintiff never took the plea that the contract could not be performed because the defendant was not ready and willing to perform his part of the contract. The plaintiff's main case was that the transaction was really that of a loan and that has been negatived by both the Courts below and this appeal has not been admitted on that point. The defendant has pleaded and proved that he was always ready and willing to pay the amount of Rs. 2000/ -. The finding of the two Courts on this point cannot be said to be perverse. ( 5 ) IT is pointed out by the learned counsel for the appellant that notice dated 13-4-1980 (Ex. D-3) has been produced by the defendant in which the plaintiff was asked to execute the sale-deed on 19-4-1980 but the defendant has stated in the written statement that the notice was sent on 13-5-1980. This discrepancy is not material. ( 6 ) IT is well settled that in a suit for specific performance of contract relating to immovable property the time is generally not the essence of the contract. In P. R. Deb v. Sunanda Roy, AIR 1996 SC 1504 relying upon the earlier decision of a Bench of Five Judges in Chandrani v. Kamal Rani, AIR 1993 SC 1742 it has been stated that although in the case of sale of immoveable property time is not the essence of the contract, it has to be ascertained whether under the terms of the contract, when the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. It observed that the specific performance of a contract will ordinarily be granted. Notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and surrounding circumstances, it is not inequitable to grant the relief.
It observed that the specific performance of a contract will ordinarily be granted. Notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immoveable property, it would normally be presumed that the time was not of the essence of the contract. In that case the facts of the case were such that the time was held to be the essence of the contract. Those special features are not present in this case. Therefore, on the general principle of law laid down in these cases it has to be held in the present case that the time for the performance was not the essence of the contract and it could be performed in a reasonable time. In K. S. Vidyanandam v. Vairavan, AIR 1997 SC 1751 also the principles laid down in Chandrani's case have been reiterated. That was a case where the delay was of 21/2 years coupled with the substantial rise in prices of the property and therefore the specific performance was refused. That is not the position in the present case. ( 7 ) THE learned counsel for the appellant has cited Jugrajsingh v. Labhsingh, 1995 AIR SCW 901 : ( AIR 1995 SC 945 ) in which it has been held that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. That has been pleaded and proved in the present case. ( 8 ) THE concurrent finding of the two Courts that the defendant was always ready and willing to perform his part of the contract cannot be disturbed. That was pleaded and proved without any rebuttal from the side of the plaintiff either in the reply to the counter claim or in the evidence. ( 9 ) THIS appeal is dismissed. Costs as incurred. Appeal dismissed. .