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2013 DIGILAW 174 (CAL)

Bina Rani Sarkar v. Hashi Rani Ghosh

2013-03-22

TOUFIQUE UDDIN

body2013
JUDGMENT : - TOUFIQUE UDDIN, J. : This appeal arose out of judgment and decree passed by the learned Additional District & Sessions Judge, 6th Court, Midnapore on 27.1.89 in other Appeal No. 120 of 1988 thereby reversing the judgment and decree passed by the learned Assistant District Judge, 1st Court, Midnapore dated 15.4.88 in other suit No. 169 of 1979. During pendency of the appeal some of concerned persons died and their legal heirs have duly been substituted and brought on record. 2. In the background of this appeal the fact in a nutshell is that there was a suit for specific performance of contract for sale. The suit land alongwith other lands measuring 86 decimals as described fully in the Schedule to the plaint previously belonging to Hijli Cooperative Society Ltd. was settled to defendant No. 1 Rabindra Kumar Ghosh and his elder brother Birendra Kumar Ghosh by a registered deed of settlement being No. 1764 dated 19.4.50. The defendant nos. 1 and 2 while in possession jointly, there was a partition between them and the suit land fell to the share of defendant No.1. By virtue of that partition he became exclusive owner of the property. He is a dealer of the M.R. Shop and had supply business. So, he wanted to sale the suit land to the plaintiff at a sum of Rs. 22375/-. The plaintiff agreed to purchase the suit land from defendant No. 1 and paid Rs. 2001/- on 19.7.79 to the defendant No. 1 as advance money for which one bainanama deed was executed in favour of the plaintiff. It was agreed that defendant No. 1 would execute the sale deed in respect of the suit land within 60 days after taking the balance money of Rs. 20374/-. It was further settled that defendant No. 1 would obtain permission to sale the suit land from Hijli Cooperative Society Ltd. and the plaintiff would be a member of the said society. Few days after, the plaintiff collected balance money and requested defendant No. 1 to execute the deed. The defendant No. 1 stated that he arranged for getting permission from the society and assured to execute the sale deed in favour of the plaintiff. The plaintiff also filed application to become a member of the society. The defendant No. 1 being in need of money for his business etc. took Rs. The defendant No. 1 stated that he arranged for getting permission from the society and assured to execute the sale deed in favour of the plaintiff. The plaintiff also filed application to become a member of the society. The defendant No. 1 being in need of money for his business etc. took Rs. 4301/- on 14.8.79 and further Rs. 4000/- on 15.8.79 from the plaintiff and also assured that on getting permission from the society the defendant No. 1 would execute the sale deed. The plaintiff as such paid Bainamoney of Rs. 2001/-and also the advance money of Rs. 8301/- i.e., in all Rs. 10302/-. Several times the plaintiff requested defendant No. 1 to execute deed by taking the balance money of Rs. 12073/- as she was ready and willing to perform her contract. The defendant No. 1 failed to perform his part of contract and did not execute and register the sale deed. By practicing fraud he realised Rs. 10302/-from the plaintiff. The plaintiff gave notice by a registered post and asked the defendant No. 1 to execute the sale deed on 19.9.79 or within one month after taking the balance money and accordingly, the plaintiff alongwith her husband waited at Kharagpur Sub-registry Office on 19.9.79. The defendant No. 1 refused to accept the registered letter. He is trying to transfer the suit land to some other person. 3. The defendant nos. 2 and 3 did not contest the suit but defendant No. 1 contested the suit by filing a written statement, denying all material allegations therein. The specific case of the defendant No. 1 was that the plaintiff on request failed to pay the balance money and get the sale deed executed. The wife of defendant No. 1 fell ill and he was in need of money for her treatment. So, he sent a letter on 10.9.79 to get the deed executed after payment of balance money of Rs. 20376/- making it clear that if the plaintiff failed to do so, the defendant No. 1 would not be liable for the same and the bainanama would be liable to be cancelled. The defendant obtained N.O.C. from majority of the Directors but the plaintiff did not try to become the member of the society excepting that she filed the application for the same. Hence the defendant prayed for dismissal of the suit. 4. The defendant obtained N.O.C. from majority of the Directors but the plaintiff did not try to become the member of the society excepting that she filed the application for the same. Hence the defendant prayed for dismissal of the suit. 4. Upon the pleadings of the parties, the following issues were framed. i) Is the suit maintainable in its present form? ii) Is the suit barred by the Specific Relief Act? iii) Is the suit barred by Section 55 of the Indian Contract Act? iv) Is the suit bad for defect of parties? v) Is the plaintiff entitled to get a decree as prayed for? vi) To what other relief, if any, is the plaintiff entitled? 5. To contest this case the plaintiff examined two witnesses but she herself did not depose while the defendant examined himself only. 6. On consideration of the materials on record, the learned Assistant District Judge, 1st Court, Midnapore by the judgment dated 15.4.88 decreed the suit. 7. Being aggrieved by and dissatisfied with the impugned judgment of the Assistant District Judge, 1st Court, Midnapore the other appeal No. 120 of 1988 was filed mainly on the grounds: i) The learned court ought to have dismissed the suit by holding that the contract was not executed. ii) The suit was bad for misjoinder of the parties. iii)The plaintiff did not perform his part of contract. iv) The court erred in accepting the submission of the plaintiff that though 60 days limitation was given, it was not the intention of the parties that the contract would be performed within 60 days. 8. The learned first appellate court on hearing of both sides allowed the appeal and dismissed the suit by the impugned judgment. 9. Being aggrieved by and dissatisfied with the said judgment and decree of the learned court below the petitioner preferred the second appeal which is now SA No. 20 of 1990. 10. The following substantial questions of law are involved here: i) Whether the learned court of appeal below was at all justified in treating the Hijli Cooperative Society Ltd., defendant No. 3 neither to be necessary party nor a proper party or that such society had no part to play with the formation of contract. ii) Whether the court of appeal below erred in law in holding the time stipulated in the agreement (Ext. 1) to be the essence of contract. ii) Whether the court of appeal below erred in law in holding the time stipulated in the agreement (Ext. 1) to be the essence of contract. iii)Whether the court of appeal below erred in law in constructing the true effect and scope of Section 55 of the Indian Contract Act. iv) Whether the court of appeal below erred in law in applying the decision reported in 1977 Calcutta Weekly Note 781. 11. The pinpointed arguments advanced by the learned counsel for the appellant were mainly on the following points: i) Time was not the essence of contract. ii) The appellant was ready and willing to perform her part of the contract to purchase the suit property by paying the rest part of the consideration money. iii) The appellant duly applied before the Hijli Cooperative Society Ltd. for becoming a member of the society. So, the appellant left no stone unturned to perform the contract. iv) The defendant purposely avoided to execute the sale deed and falsely sent a letter under Certificate of Posting which never reached the appellant and the same has no presumptive value. v) It was wrong to hold that though the appellant was willing yet contingent contract will apply to him and the respondent was aware of this fact. vi) Registered letter was sent by the appellant to the respondent showing his readiness and willingness to purchase the property by making payment of the residential part of the contracted money but the respondent refused to accept the letter. 12. The learned counsel made reference of Sections 31 and 32 of the Indian Contract Act and cited before me the following decisions: a) AIR 2006 SC 970 [Most. Etwari Devi vs. Most. Parvati Devi] b) (2006) 1 W.B.L.R. (SC) 235 [Aniglase Yohannan vs. Ramlatha & Ors.] c) AIR 1967 SC 868 [Gomathinayagam Pillai vs. Palaniswami Nadar] d) AIR 1988 SC 1074 [Smt. Indira Kaur & Ors. vs. Shri Sheo Lal Kapoor] e) AIR 1979 SC 720 [M/s. Hind Construction Contractors vs. State of Maharashtra] f) AIR 1976 AP 243 [Pudi Lazarus vs. Revd. Johnson Edward & Ors.] g) (2012) 5 SCC 712 [Narinderjit Singh vs. North Star Estate Promoters Ltd.] h) 2011 (5) Supreme 1 [Mrs. S. Kandappan vs. Mrs. vs. Shri Sheo Lal Kapoor] e) AIR 1979 SC 720 [M/s. Hind Construction Contractors vs. State of Maharashtra] f) AIR 1976 AP 243 [Pudi Lazarus vs. Revd. Johnson Edward & Ors.] g) (2012) 5 SCC 712 [Narinderjit Singh vs. North Star Estate Promoters Ltd.] h) 2011 (5) Supreme 1 [Mrs. S. Kandappan vs. Mrs. S. Rajalakshmi] i) AIR (36) 1949 Cal 510 [Arun Prokash Boral vs. Tulsi Charan Bose] j) (1993) 1 SCC 519 [Chand Rani vs. Kamal Rani], and k) AIR 2012 SC 2035 [Narinderjit Singh vs. North Star Estate Promoters Ltd.] 13. On the other hand, the learned counsel for the respondent argued mainly on the following points: i) Previously time was thought not to be the essence of contract but now it is changed. ii) There was no readiness and willingness on the part of the appellant to perform the contract. iii) There was no further claim that if some more time is given, then the contract will be performed. iv) No extension of time was granted. v) The escalation of price is to be taken care of. 14. While referring to Section 72(1) of the WBCS Act, 1973, Rules 201 and 202 of WBCS Rules, 1974, the learned counsel for the respondents submitted that if there was no fulfillment of Rule 202 of the WBCS Rules the appellant is not entitled to any reliefs. Further, in support of his contention, the learned counsel for the respondent cited before me the following decisions: a. (1997) 3 SCC 1 [K.S.Vidyanadam & Ors. vs. Vairavan] b. (2011) 12 SCC 18 [Saradamani Kandappan vs. S. Rajalakshmi & Ors.] c.AIR (36) 1949 Cal 510 [Arun Prokash Boral vs. Tulsi Charan Bose] d) (2011) 9 SCC 147 [Citadel Fine Pharmaceuticals vs. Ramaniyam Real Estates Private Ltd.] e) (1996) 4 SCC 526 [His Holiness Acharya Swami Ganesh Dassji vs. Sita Ram Thapar], and f) (2011) 12 SCC 658 [Vimaleshwar Nagappa Shet vs. Noor Ahmed Shariff]. g) (1993) 1 SCC 519 [Chand Rani vs. Kamal Rani] 15. From the evidence of both the parties, the following facts stand admitted: a) The plaintiff/appellant entered into an agreement for purchase of the suit property from the respondent/defendant on 19.7.79 (Ext. 1) stating inter alia therein that for the purpose of increase of the capital of his business, he was in need of money and, therefore, on receipt of earnest money of Rs. 1) stating inter alia therein that for the purpose of increase of the capital of his business, he was in need of money and, therefore, on receipt of earnest money of Rs. 2001/-, he executed the bainanama for sale, on condition that within next 60 days he will seek for permission from the society and, at the same time, the plaintiff/appellant will become member of the society and rest consideration money of Rs. 22375/- is to be paid and get the deed of sale executed. So, it appears from the first part of the agreement that payment of balance money is to be made from 60 days from the date of execution of the bainanama and, thereafter, the deed was to be executed. In the second part, there is no mention that the deed also has to be executed simultaneously the same day on the expiry of 60 days. Rather, the further clause available in (Ext. 1) is that in case the appellant fails to pay such balance consideration money, deed of agreement shall stand cancelled and the earnest money forfeited. b) The suit property initially belonged to Hijli Cooperative Society Ltd. who has been made defendant No. 3 by way of an amendment. Whether the cooperative society is a necessary party or proper party is not the main question for proper adjudication here. Because neither party raised this question of law at the time of argument in this appeal. c) The respondent accepted earned money of Rs. 2001/- on 19.7.79. d) The parties were known to each other from before and had very good relationship as appeared from the evidence of the defendant/respondent. e) The appellant’s husband had sweet meat shop and had monthly income of Rs. 6000/- at the material point of time as appears from his cross-examination. f) In chief, the appellant stated that “it is not a fact that the time is the essence of contract”. But in cross-examination, he stated that the time was essence of contract. g) PW 2 is the witness of the appellant. His clear evidence is that PW 1 Ganesh Sarkar went to him 3-4 days after the execution of bainanama and asked him to take half portion of the suit property as he did not have Rs. 22000/- and so. He was ready and willing to pay the half money 2-3 days before the execution of the sale deed. His clear evidence is that PW 1 Ganesh Sarkar went to him 3-4 days after the execution of bainanama and asked him to take half portion of the suit property as he did not have Rs. 22000/- and so. He was ready and willing to pay the half money 2-3 days before the execution of the sale deed. This demonstrates that the plaintiff was short of money and he had no capacity to pay the money soon after the date of the execution of bainanama. From what source thereafter he collected the balance money has not been cleared. 16. The learned counsel for the plaintiff/appellant contended that the defendant No. 1 demanded some money for the purpose of marriage of her daughter and also for medical treatment of his ailing wife and as such after considering his need and having good faith in defendant No. 1, the plaintiff paid again Rs. 4301/- to defendant No. 1 on 14.8.79 and further Rs. 4001/- on 15.8.79 i.e., in all Rs. 10302/- leaving the remaining gross money payable to the tune of Rs. 12073/- at the time of execution of the sale deed. The defendant No. 1 flatly denied the receipt of such monies on two occasions. Needless to mention that the plaintiff did not prove by any documentary evidence that he paid on two occasions such amount of money. Whatever sweet relations might have existed, (if at all it is believed) between the parties, but in case of payment of money, no documentary evidence in the form of receipt will not be insisted upon by the appellant is a bitter pill to swallow. 17. Hence, I reject the contention of the appellant on this score as has rightly been held concurrently but both the learned courts below. 18. The plaintiff was admittedly required to be inducted as a member of the Hijli Cooperative Society Ltd. Accordingly, he submitted an application to become a member by depositing a fee of Rs. 55/-. The receipt is Ext. 7. But mere filing of the application is not enough. What “follow up” action was taken by the appellant has not been shown by him. This indicates that he was not vigilant to quicken the procedure for becoming a member of the cooperative society. Rather, it appears that the cooperative society sent a letter on 7.11.86 to the appellant (Ext. 7. But mere filing of the application is not enough. What “follow up” action was taken by the appellant has not been shown by him. This indicates that he was not vigilant to quicken the procedure for becoming a member of the cooperative society. Rather, it appears that the cooperative society sent a letter on 7.11.86 to the appellant (Ext. 5) informing her to take back the said amount of Rs. 55/- as according to by-laws she has not gathered any material interest in the society to be enrolled as a member of the said society. So, the question of applicability of Rule 201 and Rule 202 of the WBCS Rules, 1974 comes into play. 19. The plaintiff claimed that he sent registered letters to the respondent well before the stipulated date asking him to accept the balance money and get the deed registered but it was flatly refused by the respondent. It was incumbent upon the plaintiff to discharge the burden to examine the postal peon but he did not. 20. On the other hand, the respondent appears to have allegedly written a letter to the Secretary, Hijli Cooperative Society on 8.9.79 i.e. well within the stipulated period of contract to accord permission for transfer of suit land to the appellant. Permission was granted therein by issuing no objection (Ext. 8). So, it transpires that the respondent was ready for the transfer of the property on receipt of the balance money. Further, it transpires from the extract copy of the resolution dated 29.12.79 (Ext. 9) of the cooperative society that as the appellant did not purchase the suit property, so, the contract was cancelled and in her place, sale was proposed to be made in the name of one Dr. Arun Ch. Giri and such permission was accorded by the society. All these actions and conduct lead to suggest that the respondent stuck to his gun by meaning the theory that “time was essence of contract”, though, it was not explicitly in the agreement. 21. Now, let me consider what the position of law is with reference to the decisions cited above by both the sides. 22. How and why some of the decisions referred to above by the appellants appear to be distinguishable is due to the following facts. 23. 21. Now, let me consider what the position of law is with reference to the decisions cited above by both the sides. 22. How and why some of the decisions referred to above by the appellants appear to be distinguishable is due to the following facts. 23. The appellant could not prove how he was ready with money, whether by way of keeping at home or depositing in bank. This being the position, AIR 2006 SC 970 has no application in this case. In the case in hand, the appellant appears to have defaulted. Even he did not send the rest part of money by money order or so, if at all it is believed that the respondent was reluctant to execute the decree after receipt of the balance consideration money. So, AIR 1967 SC 868 is of no avail in this case. Since readiness and willingness on the part of the plaintiff appears to be wanting in this case, AIR 1988 SC 1074 ; AIR 1976 AP 243 ; (2012) 5 SCC 712 ; (1993) 1 SCC 519 and AIR 2012 SC 2035 do not help the appellant substantially. 24. The learned counsel for the appellant referred to Sections 31 and 32 of the Indian Contract Act, 1872 which read as under: S. 31 – “Contingent contract” defined – A “contingent contract” is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. S. 32 – Enforcement of contracts contingent on an event happening – Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void. In this regard, the stand of the appellant was that getting himself admitted as a member of the cooperative society was not under the control of the appellant. But Section 72 of the WBCS Act, 1973 and Rule 201 of the WBCS Rules, 1974 stand in the way as held before. 25. In this regard the findings of the learned first appellate court appears to be relevant and reasonable. That is as follows: “It is argued before me that the performance of the contract here is dependent on the personal qualification of the plaintiff viz. she must be a member of a cooperative society, viz. 25. In this regard the findings of the learned first appellate court appears to be relevant and reasonable. That is as follows: “It is argued before me that the performance of the contract here is dependent on the personal qualification of the plaintiff viz. she must be a member of a cooperative society, viz. Hijli Cooperative Development Society Ltd. within 60 days from the execution of the deed of agreement. It is also argued that under Section 35 of the Indian Contract Act, the contract sought to be enforced in the suit has become void due to the failure on the part of the plaintiff to become a member of such society. I do not find any substance behind the argument advanced by the learned lawyer for the respondent. The language of Sections 56 and 57 of the Indian Contract Act clearly goes to show that these sections deal with the agreement to do impossible act or illegal act. In the instant case, to become a member of the cooperative society was not an impossible act and it cannot under any stretch of imagination be considered as an illegal act.…” 27. The dispute hinges around the main question if time is the essence of contract or not. In (1997) 3 SCC 1 (supra) the Hon'ble Apex Court held as follows: “It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property. While exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties). In the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades – particularly after 1973. Court cannot be oblivious to this reality. It is not possible to agree with the decision of the Madras High Court if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. The rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties – evolved in times when prices and values were stable and inflation was unknown – requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, the courts do so.” 28. Therefore, it indicates that escalation of price rise is also a factor. The respondent is not expected to wait for an indefinite period at the sweet will of appellant. Reliance may be made on (2011) 12 SCC 658 (supra). 29. In (2011) 12 SCC 18 (supra) the Hon'ble Apex Court held as follows: “… In equity the time fixed for completion of sale or purchase of real estate is not essence of contract, but this rule never had any application to cases in which this stipulation as to the time could not be disregarded without injustice to the parties. 29. In (2011) 12 SCC 18 (supra) the Hon'ble Apex Court held as follows: “… In equity the time fixed for completion of sale or purchase of real estate is not essence of contract, but this rule never had any application to cases in which this stipulation as to the time could not be disregarded without injustice to the parties. …………………………… The standard agreements of sale normally provide for payment of earnest money deposit or an advance at the time of execution of agreement and the balance of consideration payable at the time of execution/registration of the sale deed. In the absence of contract to the contrary, the purchaser is bound to tender the balance consideration only at the time and place of completing the sale. In this case it is found that there is a conscious effort to delink the terms relating to payment of balance price (Clauses 4, 5 and 6) from the term relating to execution of sale deed (clause 7) and making the time essence only in regard to the payment of the balance sale consideration. There is also a clear indication that while time would be the essence of the contract in regard to the terms relating to payment of balance price, time would not be the essence of the contract in regard to the execution of the sale deed. The intention making time essence of the contract for payment of balance price is clear from the various clauses in the agreement for sale. On the other hand, if we look at the terms relating to performance of sale, there is a clear indication that time was not intended to be the essence, for completion of the sale. Apart from the above, the plaintiff in her evidence admitted that time for performance was the essence of the contract. ……………………… It is now well settled that laws which may be reasonable and valid when made, can, with passage of time and consequential change in circumstances, become arbitrary and unreasonable. Thus, the precedents from an era when high inflation was unknown holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. Thus, the precedents from an era when high inflation was unknown holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. The distinction between contracts relating to immovable properties and other contracts is not drawn by Section 55 of the Indian Contract Act (or any other provisions of the Contract Act or Specific Relief Act, 1963). The courts in India made the said distinction, by following the English law evolved during the nineteenth century. The Supreme Court held that time is not of the essence of the contracts relating to immovable properties; and that notwithstanding default in carrying out the contract within the specified period, specific performance will ordinarily be granted, if having regard to the express stipulation of the parties, nature of the property and surrounding circumstances, it is not inequitable to grant such relief. Of course, the Constitution Bench in Chand Rani case (1993) 1 SCC 519 made a slight departure from the said view. A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by the Supreme Court in Vidyanadam case (1997) 3 SCC 1 (supra). Therefore, there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. This exercise is not being undertaken herein, nor reference being made to a larger Bench as it has been held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani case and other cases. Till the issue is considered in an appropriate case, what has been suggested in Vidyanadam case is reiterated: a) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored. b) The courts will apply greater scrutiny and strictness when considering whether the purchaser was “ready and willing” to perform his part of the contract. c) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. The courts will also “frown” upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part-performance, where equity shifts in favour of the purchaser. …” 30. In (1996) 4 SCC 526 the Hon'ble Apex Court held that there is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. The factum of readiness and willingness to perform plaintiff’s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The fact of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time was of the essence of the contract. The essential term of the contract was executing the sale deed within the stipulated period. He did not perform his part of the contract within the stipulated time. The High Court was right in refusing to enforce the contract. It being a discretionary remedy, the High Court has exercised sound judicial discretion to negate the relief of specific performance of the contract. This decision fits to a T here. He did not perform his part of the contract within the stipulated time. The High Court was right in refusing to enforce the contract. It being a discretionary remedy, the High Court has exercised sound judicial discretion to negate the relief of specific performance of the contract. This decision fits to a T here. Moreover, stipulation as regards time could not be disregarded without injustice to the parties. 31. In (1993) 1 SCC 519 (supra) the Hon'ble Apex Court observed that as a general proposition of law, 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 evident (i) from the express terms of the contract; (ii) from the nature of the property and (iii) from the surrounding circumstances, for example, the object of making the contract. 32. From the expression Rs. 98000/- (Rupees Ninety-eight thousand only) will be paid by the second party to the first party within a period of ten days only’ in the contract dated August 26, 1971, it is clear that the amount of Rs. 98000/- ought to have been paid on or before September 6, 1971. Failure to do so constituted a breach committed by the defendant. The word ‘only’ has been used twice over (1) to qualify the amount of Rs. 98000/-and (2)to qualify the period of 10 days. Therefore, having qualified the amount there was no further need to qualify the same unless it be the intention of the parties to make time as the essence of the contract. 33. The evidence also shows that the plaintiff was not willing to pay this amount unless vacant delivery of possession of one room on the ground floor was given. The notices which were exchanged between the parties have to be looked into in determining readiness and willingness. Though the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs. 98000/- which again was reiterated in the notice dated September 16, 1973 the plaintiff refrained from paying the said sum. Even as late as September 24, 1971 the plaintiff was never willing to make the payment of Rs. 98000/-. Though the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs. 98000/- which again was reiterated in the notice dated September 16, 1973 the plaintiff refrained from paying the said sum. Even as late as September 24, 1971 the plaintiff was never willing to make the payment of Rs. 98000/-. Thus the parties intended to make time as the essence under the suit agreement. Evidence shows that there was no readiness and willingness to perform the contract.” 34. In the case in hand the above principle also squarely applies in view of discussion done above. 35. It further transpires from the materials on record that the respondent had taken permission from the cooperative society to dispose of the property to one Dr. Arun Ch. Giri and permission was granted (Ext. 12A). 36. This being the position and coming no contrary proposition concretely on this score from the appellant, safely it can be presumed that the respondent might have already transferred the suit property in the name of Dr. Giri instead of the present appellant. 37. The other aspect is the question of escalation of price. The court surely can take judicial notice that in the meantime the price of the Real Estate has sought up by leaps and bounds to dizzy heights. The question is for whose fault such delay is caused. The irresistible conclusion is that the appellant did not make himself ready and was not eager to perform his obligation for execution of the sale deed by paying the rest part of the consideration money. Here, time is found to be the essence of contract. 38. This being the position, the present appeal appears to have no merit. The findings of the learned first appellate court are correct. 39. Accordingly, the Second Appeal stands dismissed. 40. The respondent, however, is directed to refund the earnest money of Rs. 2001/- alongwith compound interest thereon @10% p.a. within 1(one) month from the date of communication of this direction. 41. I pass no order as to costs in view of the circumstances of the case. 42. Let a copy of this judgment alongwith the LCR be sent down to the learned court below immediately with a direction to take necessary action. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.