JUDGMENT- Dr. D.Y. CHANDRACHUD, J.:---The learned Single Judge has decreed a suit for specific performance. This appeal is against the judgment and order of the learned Single Judge dated 3rd October, 1994. 2.On 18-2-1981, an agreement for sale was entered into between the appellants as vendors and the respondent as purchaser of a property comprising of a plot of land admeasuring 481.25 sq.meters bearing plot No. 423-C out of a larger piece of land bearing City Survey No. 1285 (Part), Plot No. 423 of Suburban Scheme III of Chembur with a bungalow bearing Municipal No. 1137(2) standing thereon. Clause (1) of the agreement provided that the respondent shall purchase the property, in question, for a price of Rs. 10 lakhs which was to be paid as follows :--- (i) A sum of Rs. 1,00,000/- was paid as earnest money by the respondent to the appellants on or before execution of the agreement; (ii) A further sum of Rs. 1,25,000/- was to be paid by the respondent to the appellants within two months from the date of the agreement; and (iii) The balance of Rs. 7,75,000/- was to be paid by the respondent to the appellants on the completion of the sale. Clause 8 of the agreement provided as follows :--- "8) The sale shall be completed on or before the 31st day of August, 1981 when upon payment of the balance of the purchase money as aforesaid the vendors and all other necessary parties, if any, shall execute a proper conveyance of the said property in favour of the purchaser in vacant and physical possession of the said property provided that the vendors may, at their option, postpone the execution of the conveyance as aforesaid up to the 31st day of December, 1981." (emphasis supplied). 3.On 20-2-1981, the appellants forwarded six documents by their advocate's letter to the respondent's advocate for the purpose of making out a marketable title to the property. As stipulated in the agreement, an amount of Rs. 1,25,000/- was to be paid by the respondent to the appellants on or before 18-4-1981. On 31-3-1981, the respondent forwarded an amount of Rs. 50,000/- by cheque to the appellants. The respondent, did not pay the balance amount of Rs. 75,000/- before 18-4-1981. As stipulated in the agreement, an amount of Rs. 1,25,000/- was to be paid by the respondent to the appellants on or before 18-4-1981. On 31-3-1981, the respondent forwarded an amount of Rs. 50,000/- by cheque to the appellants. The respondent, did not pay the balance amount of Rs. 75,000/- before 18-4-1981. On 3-9-1981 the advocate for the appellants addressed a letter to the respondent's advocate setting out that the respondent had not paid in full the amount of Rs. 1,25,000/- within two months from the date of the agreement. The respondent was called upon to comply with the terms of the agreement by effecting payment within three days of the receipt of the letter. In para 3 of the letter dated 3-9-1981, the appellants sought to extend the time for the completion of the sale to 31-12-1981 in accordance with the provisions contained in Clause 8 of the agreement. Together with the said letter, the appellants sought from the respondent a draft deed of conveyance for approval so that the income-tax clearance could be obtained. 4.In reply to the aforesaid letter, on 7-9-1981 the respondent's advocate set out that an amount of Rs. 50,000/- out of the 2nd instalment had already been paid by the respondent and recorded that the appellants had agreed to receive the balance on or before the end of the month of September, 1981. The respondent accepted the extension of time for the completion of the sale up to 31-12-1981. Thereafter, by a letter dated 12-9-1981, the appellant's advocate denied that the appellants had agreed to receive the balance on or before 30-9-1981 as alleged. However, it was stated in the said letter that with a view to ensure that the transaction was completed smoothly, the appellants "accept" the 'undertaking' of the respondent that he would pay the balance amount of Rs. 75,000/- on or before 30-9-1981. In this letter, the appellants sought to make time the essence of the contract and stated that upon the respondent failing to pay the balance amount on or before 30-9-1981, the appellants will take further action in the matter. 5.On 14-9-1981 further correspondence was exchanged as a result of which the advocate of the respondent sought certain documents of title from the appellant's advocate so as to expedite the execution of the deed of conveyance. 5.On 14-9-1981 further correspondence was exchanged as a result of which the advocate of the respondent sought certain documents of title from the appellant's advocate so as to expedite the execution of the deed of conveyance. 6.On 30-9-1981 a letter was addressed by the respondent's advocate to the appellant's advocate by which two cheques respectively in the amounts of Rs. 30,000/- and Rs. 45,000/- were forwarded to the appellants. The first cheque was dated 29-9-1981 whereas the second cheque in the amount of Rs. 45,000/- was dated 15-10-1981. The letter of the respondent recorded that the 2nd cheque was post-dated since the respondent would be realising certain cheques deposited by him only by 15-10-1981. Immediately on receipt of a letter dated 30-10-1981, the appellant's advocate on 3-10-1981, addressed a communication to the advocate for the respondent stating that (i) the respondent had undertaken to pay to the appellants a sum of Rs. 75,000/- on or before 30-9-1981; (ii) that on 12-9-1981 the appellants made time the essence of the contract; (iii) that the respondent had failed and neglected to pay the amount of Rs. 75,000/- on or before 30-9-1981 as a consequence whereof the appellants terminated the agreement for sale dated 18-2-1981. The amounts paid by the respondent to the appellants were sought to be forfeited by the notice dated 3-10-1981. Correspondence thereafter ensued between the advocates for the parties, the respondent's advocate contending in his letter dated 17-10-1981 that time was not the essence of the contract and that the appellants had sought to breach the contract with an oblique intention since the price of the property had escalated in the meantime. The advocate for the respondent stated that the respondent was ready and willing to perform his obligations under the agreement dated 18-2-1981. These statements were sought to be refuted on behalf of the appellants in a letter dated 18-9-1981. On 19-11-1981 the appellants through their advocate demanded that the documents of title which had been furnished to the advocate for the respondent under an accountable receipt be returned back and in pursuance of the said request the documents were returned to the appellant's advocate. 7.On 2-12-1981, a suit for specific performance was filed in this Court by the respondent. On 19-11-1981 the appellants through their advocate demanded that the documents of title which had been furnished to the advocate for the respondent under an accountable receipt be returned back and in pursuance of the said request the documents were returned to the appellant's advocate. 7.On 2-12-1981, a suit for specific performance was filed in this Court by the respondent. The plaint in the suit contains an averment to the effect that the respondent was, at all material times, ready and willing to carry out his obligations under the contract. The case of the plaintiff-respondent is that the agreement for sale dated 18-2-1981 did not contemplate time to be of the essence of the contract. The respondent averred in the plaint that he was not guilty of any gross or unreasonable delay or default in relation to the agreement between the parties. In para 4 of the plaint it was stated that in March, 1981 an agreement was arrived at between the appellants and the respondent by which time for the completion of the agreement was extended until 31-12-1981. This was intimated to the respondent by the 1st appellant who is the wife of the 2nd appellant. According to the respondent, he accepted the extension of time for completing the sale and had forwarded his cheque dated 31-3-1981 in the sum of Rs. 50,000/-. It was, according to the respondent, then agreed that in view of the postponement of the sale till the close of the year, the payment of a part of the consideration, amounting to Rs. 75,000/- could be made by the respondent by the end of September, 1981. The relevant averments in regard to the case of the respondent are to be found in para 14 of the plaint, according to which, (i) in view of the extension of the period which was orally agreed upon between the parties, no notice could have been issued by and on behalf of the appellants making time of the essence of the contract; (ii) that in any event the respondent had substantially complied with his obligation to pay Rs. 75,000/- by delivering two cheques in the amounts of Rs. 30,000/- and 45,000/- respectively to the advocate for the appellants; (iii) that an extension of time until the end of September, 1981 for the payment of Rs. 75,000/- by delivering two cheques in the amounts of Rs. 30,000/- and 45,000/- respectively to the advocate for the appellants; (iii) that an extension of time until the end of September, 1981 for the payment of Rs. 75,000/- was co-related to the extension of time for completion of the sale from 31-8-1981 to 31-12-1981; (iv) that, in any event, the appellants by opting to postpone the completion of the sale till 31-12-1981 and by agreeing to accept the balance of the consideration of Rs. 75,000/- by the end of September, 1981, had waived their right to receive such payment within two months of the date of the agreement for sale. According to the respondent, he was to guilty of any unreasonable delay in discharging his obligations at any intermediate stage of the transaction and the breach, if any, on his part was of a technical nature and was not substantial. 8.In the written statement filed by the appellants before this Court, it was contended that the intention of the parties was to make time the essence of the contract, since specific dates were fixed for the payment of the purchase price. The appellants denied that there was any oral agreement between the parties in March, 1981 envisaging the payment of the balance consideration by end of September, 1981. According to the appellants, they had validly made time the essence of the contract on 12-9-181. Since a part of the amount was not paid on or before 30-9-1981, there was, according to the appellants, a valid reason to terminate the agreement. 9.On the pleadings between the parties, the following issues were raised in the suit :- (1) Whether the defendants prove that the time was of the essence of the agreement for sale dated 18-2-1981? (2) Whether the plaintiff proves that during the last week of March, 1981 it was agreed to extend time for payment of Rs. 75,000/- till end of September, 1981? (3) Whether the defendants prove that there was willful default on the part of the plaintiff in not completing the sale in terms of Clause 3 of the agreement for sale dated 18-2-1981? (4) Whether the defendants prove that the agreement for sale dated 18-2-1981 was properly and validly terminated? 75,000/- till end of September, 1981? (3) Whether the defendants prove that there was willful default on the part of the plaintiff in not completing the sale in terms of Clause 3 of the agreement for sale dated 18-2-1981? (4) Whether the defendants prove that the agreement for sale dated 18-2-1981 was properly and validly terminated? (5) Whether the plaintiff proves that the agreement for sale dated 18-2-1981 is void and subsisting and that at all material times the plaintiff was ready and willing to perform his part of the obligations thereunder? (6) Whether the plaintiff is entitled to specific performance of the agreement for sale dated 18-2-1981? (7) Whether the plaintiff is entitled to compensation at the rate of Rs. 5,000/- per day or at any other rate as alleged in paragraph 16 of the plaint? (8) If the answer to the Issue No. 6 is in the negative, whether the plaintiff is entitled to damages in the sum of Rs. 8.5 lakhs with interest thereon as alleged in paragraph 17 of the plaint? (9) If the answer to Issue No. 6 is in the negative, whether the plaintiff is entitled to the refund of Rs. 1.5 lakhs, with interest thereon, as alleged in paragraph 18 of the plaint? (10) What orders? 10.The respondent examined himself in evidence and was cross-examined on behalf of the appellants. A reference to the salient aspects of the evidence will be made a little later. The appellants did not lead any evidence. By a judgment and order of the learned Single Judge dated 3-10-1994, the suit came to be decreed. In arriving at his conclusion, the learned Judge held that it was settled law that in respect of an agreement for the sale of land or immovable property, time is not regarded as an essence of the contract. The conclusions of the learned Judge, in para 10 of the impugned judgment, were that (i) there was not even a single letter brought on record by the appellants showing that had addressed any reminder to the respondent to effect payment of the amount on of before 18-4-1981; (ii) that even prior to 18-4-1981 admittedly an amount of Rs. The conclusions of the learned Judge, in para 10 of the impugned judgment, were that (i) there was not even a single letter brought on record by the appellants showing that had addressed any reminder to the respondent to effect payment of the amount on of before 18-4-1981; (ii) that even prior to 18-4-1981 admittedly an amount of Rs. 50,000/- had been received by the appellants on 31-3-1981; (iii) no grounds was made out in the correspondence between the parties to suggest that the behaviour of the respondent was such as to prompt the appellants to make time of the essence of the contract; (iv) the appellants themselves had exercised the option under Clause (8) of the agreement to extend time for completion of the sale until 31-12-1981 which meant inter-alia that the balance amount of Rs. 7,75,000/- was payable only at the time of the completion of the sale; (v) that the conduct of the appellants themselves did not inspire any confidence. No oral evidence had been adduced on behalf of the appellants-defendants. On the other hand, the respondent had deposed in his evidence to the circumstances in which the payment of Rs. 50,000/- was made by him to the 1st appellant and to the oral agreement which had been arrived at between the parties by the end of March 1981; (vi) the appellants had failed to satisfy the basic requirement of making time the essence of the contract by leading evidence to suggest that the conduct of the respondent was so gross as would justify the decision of the appellants in making time the essence of the contract. Consequently, the learned Single Judge held that the conduct of the respondents defendant was "only a pretext trotted out by the defendant to wriggle out of the transaction" and the respondent was not justified in making time the essence of the contract. The learned Single Judge has held that the respondent was, at all material times, ready and willing to perform his obligations under the agreement. The suit has been decreed. The learned Single Judge has held that the respondent was, at all material times, ready and willing to perform his obligations under the agreement. The suit has been decreed. 11.In assailing the correctness of the judgment and order of the learned Single Judge, Shri Tulzapurkar appearing on behalf of the appellants submitted that : (i) Time was of the essence of the agreement between the parties and had, in fact, been made so by the letter dated 30-9-1981 addressed by the appellants to the respondent; and (ii) The facts and circumstances on the record would show that the respondent was never ready and willing to perform his obligations under the agreement. In dealing with the tenability of these submissions, a few of the salient aspects of the case must be taken note of and these are as follows :- (i) The agreement which was entered into between the parties on 18-2-1981 did not make time the essence of the contract. (ii) The agreement, undoubtedly, stipulated a period by which the purchase price was liable to be paid but, as would be set out in detail later, the laying down of a period for the performance of a contract is not, by itself, sufficient to conclude that time was of the essence of the contract. (iii) The respondent had paid earnest money in the sum of Rs. 10,000/- together with the execution of the contract. Thereafter, on 31-3-1981, an amount of Rs. 50,000/- was paid by the respondent to the appellants; (iv) On 3-9-1981 the appellants themselves extended the time for completion of the sale to 31-12-1981; (v) On 30-9-1981 the respondent forwarded two cheques in the amount of Rs. 75,000/- one of 29-9-1981 and the second of 15-10-1981 to the appellants; (vi) The appellants having extended the time for the completion of the sale to 31-12-1981, the balance of the purchase price amounting to Rs. 7.75 lakhs was not payable until the time of the completion of the sale. 12.In the evidence adduced by the respondent at the trial of the suit, the respondent deposed to the circumstances in which an amount of Rs. 50,000/- came to be paid on 31-3-1981. In para 8 of the evidence, the respondent deposed to the fact that on 31-3-1981 the earlier agreement under which he was to pay Rs. 1,25,000/- within two months was changed. He gave a cheque of Rs. 50,000/- came to be paid on 31-3-1981. In para 8 of the evidence, the respondent deposed to the fact that on 31-3-1981 the earlier agreement under which he was to pay Rs. 1,25,000/- within two months was changed. He gave a cheque of Rs. 50,000/- and the balance of Rs. 75,000/- was agreed to be paid by the end of September, 1981. The respondent stated in his evidence that in the last week of March 1981, a phone call was received from the 2nd appellant, who was then in Cairo, at the office of the respondent. The manager of the respondent who received the call informed the respondent that the 2nd appellant had stated that an amount of Rs. 50,000/- should be paid to the 1st appellant on 31-3-1981. Consequently, on 31-3-1981 the respondent informed the 1st appellant that he was giving a cheque of Rs. 50,000/- as instructed by her husband, the 1st appellant, on telephone. The respondent then asked the 1st appellant as to when the transaction would be finalised when, the 1st appellant then asked the 1st appellant as to when the transaction would be finalised when, the 1st appellant stated that it would have to be completed by 31-12-1981. The respondent has deposed that he then informed the 1st appellant that he would pay balance of Rs. 75,000/- by the end of September, 1981 to which she agreed. The respondent was cross-examined on behalf of the appellant. The oral evidence of the respondent has remained uncontroverted for the simple reason that the appellant did not choose to lead any evidence at the trial of the suit. Admittedly, by a letter dated 3-9-1981, the appellants extended the time for the completion of the sale of 31st December, 1981. 13.The circumstances on the record of the case are thus sufficient to establish, in our view, that time was never the essence of the agreement which had been entered into between the parties. The original agreement contained no such stipulation. Thereafter, the appellants themselves, extended the time for the completion of the sale till 31-12-1981. The respondent had, out of the second instalment, paid an amount of Rs. 50,000/- on 31-3-1981 and the cheques for the balance were also forwarded on 30-9-1981. The learned Single Judge has concluded in the circumstances that "Heavens were not going to fall if the payment of Rs. The respondent had, out of the second instalment, paid an amount of Rs. 50,000/- on 31-3-1981 and the cheques for the balance were also forwarded on 30-9-1981. The learned Single Judge has concluded in the circumstances that "Heavens were not going to fall if the payment of Rs. 45,000/- made by post-dated cheque was accepted by the defendants". It must be emphasised that this is not a case where the respondent declined to pay the balance of the consideration or sought an indefinite extension of time to pay the second instalment. The second instalment was in fact paid, though a part of it, by a post-date cheque which was dated fifteen days after the payment of the instalment. The respondent was, thus, at all material times, ready and willing to perform his obligations under the agreement with the appellants. The appellants unilaterally, by their letter dated 12-9-1981, sought to make time the essence of the contract. This, in our view, was impermissible because this was not a case where the respondent-plaintiff had unreasonably delayed or neglected to perform his obligations under the agreement. 14.The law on the point is well settled. Ordinarily, time is not the essence of a contract for the sale of immovable property. The parties, in a given case, may make time of the essence either expressly in terms which unmistakably provide unmistakeably that they intended to do so. Alternately, making of time as the essence of a contract may be inferred from the nature of the contract, the property or the surrounding circumstances. A mere stipulation in a contract laying down the time for performance is not sufficient to make time the essence of a contract for sale of immovble property. A party to a contract cannot by his unilateral act make time of the essence unless the circumstances are such as would establish that the other party to the contract had delayed or defaulted in the performance of his obligations under the agreement. 15.In (Gomathinayagam Pillai v. Palaniswami Nadar)1, A.I.R. 1967 Supreme Court 808, a Bench of three learned Judges of the Supreme Court placed the principle in the following words :- "It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable; it may also be inferred from the nature of the parties and the surrounding circumstances at or before the contract. 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 the surrounding circumstances, it is not inequitable to grant the relied. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. ..... Intention to make time of the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulations as to time are not of the essence. In the present case there is no express stipulation, and the circumstances are 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. It is true that even if time was not originally of the essence, the appellants could, by notice served upon the respondent, call upon him to take the conveyance within the time fixed and intimate that in default of compliance with the requisition the contract will be treated as cancelled. It is true that even if time was not originally of the essence, the appellants could, by notice served upon the respondent, call upon him to take the conveyance within the time fixed and intimate that in default of compliance with the requisition the contract will be treated as cancelled. As observed in (Stickney v. Keeble)2, 1915 A.C. 386 where in a contract for the sale of land the time fixed for completion is not made of the essence of the contract, but the vendor has been guilty of unnecessary delay, the purchaser may serve upon the vendor a notice limiting a time at the expiration of which he will treat the contract as at an end." As regards the making of time of the essence of the contract by one party to the contract, the Supreme Court relied upon a judgment in 1915 A.C. 386 Stickney v. Keeble where it was held that "if in a contract for the sale of land the time fixed for completion was not made of the essence of the contract, but the vendor had been guilty of unnecessary delay, the purchaser may serve upon the vendor a notice limiting a time at the expiration of which he will treat the contract as at an end." In (Govinda Prasad Chaturvedi v. Hari Dutt. Shastri)3, A.I.R. 1977 S.C. 1005 the Supreme Court held that it was settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time of the essence of the contract. Similarly, a bench of the five learned Judges in A.I.R. 1993 Supreme Court Court 1742 (Chand Rani v. Kamal Rani)4, held thus : "24. From an analysis of the above case law, 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 : 1. from the express terms of the contract. 2. from the nature of the property; and 3. 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 : 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." Reliance was, however, sought to be placed by the learned Counsel for the appellants on a judgment of the Supreme Court in (Sunanda Roy v. M/s. B.P. Deb and Associates)5, J.T. 1996(2) S.C. 684. In the case which was decided by the Supreme Court under an agreement for sale, the purchaser was required to make part payment of an amount of Rs. 4 lakhs within five months of the agreement of sale. There were letters on record to show that early payment of the amount was required as the vendor had to purchase alternative residential accommodation for hereself in order to carry out her obligation under the agreement of sale to deliver vacant possession of the property to the purchaser. From para 7 of the judgment of the Supreme Court, it is abundantly clear that the purchaser in that case was not in a position to pay a sum of Rs. 4 lakhs either within the time specified under the agreement for sale or "within a reasonable time". In fact, the Court noted that although the purchaser and his solicitor had given evidence in the case, "they have not stated that the respondent had the sum of Rs. 4 lakhs at the material time or that the respondent was in a position to pay this amount within a reasonable time". Thus the judgment of the Supreme Court would indicate that the stipulation of a particular date by which the purchase price is to be paid would not necessarily result in an invalidation of the right of the purchaser if the payment was not effected by that date. So long as the purchaser is willing to make payment on before the date which was prescribed or within a reasonable time, the ordinary presumption of time not being the essence of the contract for the sale of immovable property would not be displaced. So long as the purchaser is willing to make payment on before the date which was prescribed or within a reasonable time, the ordinary presumption of time not being the essence of the contract for the sale of immovable property would not be displaced. In the present case, the respondent did, in fact, forward two cheques to the appellants on 30-9-1981 and the mere fact that a part of the payment was made by a post-dated cheque which was dated fifteen days thereafter was not sufficient to justify the termination of the contract. The appellants were not justified in unilaterally attempting to make time of the essence. The conduct of the respondent did not justify this. The learned Single Judge has held, and in our view correctly that this was only a ruse adopted by the appellants to avoid the transaction. 16. The respondent was ready and willing to comply with his obligations under the contract and there is no breach or neglect on his part in complying with his obligations. In the circumstances, we do not find any infirmity in the judgment of the learned Single Judge. The appeal is dismissed. There will be no order as to costs. On the application of the learned Counsel for the appellants, execution of the decree shall be stayed for a period of eight weeks from today. The appellants shall, however, not create any third party rights in the property. The respondents shall deposit the amount of Rs. 75,000/- payable under the second instalment within a period of eight weeks from today. Certified copy expedited. An ordinary copy of this order authenticated by the associate of this Court may be made available to the parties. Appeal dismissed. -----