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2018 DIGILAW 1868 (ALL)

Ashok Kumar Agrawal v. Brij Mohan Tapadia

2018-08-27

SIDDHARTH

body2018
JUDGMENT : Siddharth, J. Heard Dr. S.B. Singh, learned counsel for the appellants and Sri Nitin Kumar Agrawal, learned counsel for the respondents. 2. This is defendant's second appeal against the judgment and decree dated 07.04.2018 passed by Additional District Judge/ Fast Track Court, Agra in Civil Appeal No. 41 of 2016 setting aside the judgment and decree dated 20.04.2016 passed by Additional Civil Judge (Senior Division), Court no. 3, Agra in Original Suit No. 876 of 2014. 3. Plaintiff instituted a suit praying for a decree of specific performance of contract of sale. 4. The brief facts of the case are that the plaintiff entered into an agreement of sell regarding suit property for total sale consideration of Rs. 10 lakhs with the defendant and paid Rs. 2.5 lakhs to the defendant as part sale consideration and got the agreement registered on 06.11.2012; that on 30.11.2012 the defendant received the remaining amount of Rs. 7.5 lakhs and executed the receipt of payment; that on 23.06.2013 the plaintiff sent a legal notice calling the defendant to execute the sale deed before the Sub-Registrar on 30.06.2014; that the plaintiff reported his presence before the Sub-Registrar on 30.06.2014 in the morning and evening both but the defendant did not turned up for execution of the sale deed; that the plaintiff instituted Original Suit no. 876 of 2014 wherein, despite sufficient service of notice, defendant did not appeared and the suit was decreed ex-parte by the date and decree dated 18.05.2015 for the alternative relief of return of Rs. 2.5 lakhs to the plaintiff by the defendant; that the plaintiff preferred a Civil Appeal No. 41 of 2016 before the lower appellate court which decreed the suit for the main relief and directed the defendant to execute the sale deed within two months and aggrieved by the same, this second appeal has been preferred by the defendant. 5. The argument of the learned counsel for the defendant-appellant is that it was specifically provided in the agreement that the sale deed shall be executed within a year from the date of execution of the agreement to sell. Thus, time was the essence of contract. The plaintiff did not requested the defendant to execute the sale deed either orally or in writing by means of notice in his favour or in favour of a person nominated by him, as per the terms of the agreement. Thus, time was the essence of contract. The plaintiff did not requested the defendant to execute the sale deed either orally or in writing by means of notice in his favour or in favour of a person nominated by him, as per the terms of the agreement. It was after six months of the expiry of one year period provided in the agreement dated 06.11.2012 that the plaintiff gave notice dated 23.06.2014 to the defendant for executing the sale deed in his favour. Since time was essence of the contract and value of the suit property had appreciated manifold hence the defendant did not wished to sell his property. The trial court has recorded categorical finding that the readiness and willingness of the plaintiff is suspicious coupled with the fact that the remaining amount of Rs. 7.5 lakhs has been paid in cash and receipt (chuktinama) is unregistered and not free from suspicion. On the basis of the aforesaid grounds the trial court denied the relief of specific performance of contract of sale to the plaintiff and decreed the suit for alternative relief of return of Rs. 2.50 lakhs, paid by the plaintiff to the defendant as part of the sale consideration. The appellate court has wrongly recorded the finding that there was no occasion for the plaintiff to send notice to the defendant within a year for executing the sale deed when the limitation for instituting the suit is three years. 6. He has further submitted that it is settled law that court is not always bound to decree the suit for specific performance of contract and it has discretion to refuse the same. The trial court rightly exercised the discretion and decreed the suit for alternative relief which has been interfered by the lower appellate court without recording adequate reasons for the same. The plaintiff only pleaded his readiness but there is no pleading in the plaint regarding his willingness. Even if it is accepted that the entire sale consideration was paid by 30.11.2012 even then prior to giving notice dated 23.06.2014 the plaintiff showed no willingness to get the sale deed executed. 7. It is settled law that payment of money as per the agreement indicates readiness on the part of the plaintiff but willingness is proved only when it is proved that effort was made to get the sale deed executed from the defendant. 7. It is settled law that payment of money as per the agreement indicates readiness on the part of the plaintiff but willingness is proved only when it is proved that effort was made to get the sale deed executed from the defendant. Reliance has been placed upon paragraph 5 and 6 of the judgment of the Apex Court in the case of N.P. Thirugnanam (D) By LRS vs. Dr. R. Jagan Mohan Rao & Ors, 1995 (5) SCC 115 is hereunder:- 5. It is next contended that the plaintiff was always ready and willing to perform his part of the contract. To buttress it, counsel placed strong reliance on the evidence of PW-2, who had testified that he was willing and prepared to lend a sum of Rs. 2,00,000/- to the plaintiff on the foot of a promissory note. It is not necessary for the plaintiff that he should keep ready the money on hand. What is relevant and material is that he should have the necessary capacity to raise the funds and was ready and willing to perform his part of the contract which has been demonstrated by the evidence of PW-2. We do not accede to the contention. The trial judge had pointed out that on an application filed by the defendants, a direction was given to the plaintiff by order dated February 11, 1991 to deposit the amount of Rs. 2,00,000/- or furnish bank guarantee giving time up to March 11, 1991. He neither deposited the amount nor has given bank guarantee. It was also found that the plaintiff was dabbling in real estate business. He had house on hire purchase agreement with the T.N. Housing Board. He paid only Rs. 7,750/- upto 1980. A sum of Rs. 29,665/- was further payable. He had an agreement with one Annamma Philip for Rs. 49,500/- to sell the said house after purchase from the Board. Obviously, he had obtained advance and sold the house to his vendee on February 7, 1980 after getting a sale deed executed in his favour. He entered into an agreement (Ex.p.1) on 9.4.79 to purchase the suit house for Rs. 2,30,000/-. He was not able to pay the loans and he adjusted Rs. 20,000/- which was paid towards arrears of rent and paid only Rs. 1975/- under Ex.P.30 for the sale consideration of his house. He entered into an agreement (Ex.p.1) on 9.4.79 to purchase the suit house for Rs. 2,30,000/-. He was not able to pay the loans and he adjusted Rs. 20,000/- which was paid towards arrears of rent and paid only Rs. 1975/- under Ex.P.30 for the sale consideration of his house. He was unable to pay the rent to the respondents and had deposited huge amount towards arrears of rent pursuant to the orders of the courts. PW-2, though professed to be willing to advance a sum of Rs. 2,00,000/-, did not have cash and admitted that had to obtain Rs. 2,00,000/- by hypothicating his property and at the same time was willing to lend on a pronote to the plaintiff a sum of Rs. 2,00,000/-, which was hard to believe. These circumstances were taken into consideration by the trial Judge as well as the Division Bench in concluding that the plaintiff was not ready and willing to perform his part of the contract. 6. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under s.20 of the Specific Relief Act 1963 (for short, 'the Act'). Under s.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his 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 contract. 8. In the above context reliance has also been placed on paragraphs 18, 21 and 22 of the judgment in the case of Padmakumari & Ors vs. Dasayyan & Ors 2015 (8) SCC 695 as hereunder: 18. The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in Appendix 'A', extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averment as provided under clause 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at paragraph 6 of the plaint which reads thus: "6. The plaintiff is ready and willing to perform his part of the contract by paying the balance of sale consideration of Rs. 63,000/- and take the sale deed in accordance with the provisions of the agreement deed dated 19.04.1992." 21. In view of the aforesaid facts, the purchase of the part of the suit schedule property by defendant Nos. 12 to 15 for a valuable consideration is established by the above defendants by adducing evidence on their behalf before the trial court. 63,000/- and take the sale deed in accordance with the provisions of the agreement deed dated 19.04.1992." 21. In view of the aforesaid facts, the purchase of the part of the suit schedule property by defendant Nos. 12 to 15 for a valuable consideration is established by the above defendants by adducing evidence on their behalf before the trial court. Both the Courts below have omitted to consider this important piece of pleadings as also the material evidence on record thereby the concurrent finding recorded on the contentious issues has been rendered erroneous in law and is liable to be set aside. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15. 22. For the reasons stated supra, defendant Nos. 12 to 15 (appellants herein) must succeed. Accordingly the appeal is allowed, the impugned judgments and decrees of the High Court and the trial court are hereby set aside and the suit is dismissed. There shall be no order as to costs. 9. To substantiate the argument regarding the time being essence of contract, the counsel for the defendant-appellant has relied upon paragraphs 25 and 30 of the constitution bench judgment of Chanda Rani (Smt) (dead) by LRS vs. Kamal Rani (Smt) (dead) by LRS, 1993 (1 SCC) 519 is hereunder: 25. 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. from the surrounding circumstances, for example : the object of making the contract. 30. The next question is whether the plaintiff was ready and willing ? The notices which were exchanged between the parties have to be looked into in determining readiness and willingness. On September 10, 1971 the plaintiff would say through the registered notice that ready money was available for purchase of the property which was followed up by a telegram. The stand is taken by the defendant that within 10 days from August 26, 1971, the sum of Rs. 98,000 was not paid; hence, the sum of Rs. 30,000 stood forfeited. On September 10, 1971 the plaintiff would say through the registered notice that ready money was available for purchase of the property which was followed up by a telegram. The stand is taken by the defendant that within 10 days from August 26, 1971, the sum of Rs. 98,000 was not paid; hence, the sum of Rs. 30,000 stood forfeited. The redemption of the mortgage would be done and the income tax clearance also would be obtained after the purchase of stamp paper. Where, therefore, the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs. 98,000 which again was reiterated in the notice dated September 16, 1973, nothing would have been easier for the plaintiff than to pay the said sum. Instead of adopting that course what is stated in the notice dated September 24, 1971 by the plaintiff is as follows :- 10. Finally reference to paragraph 43 of the Apex Court judgment in the case of Saradamani Kandappan vs. S. Rajalakshmi & Ors, 2011 (12) SCC 18 has been made which is as the observation of the Apex Court thereunder are as follows:- 43. We are therefore of the view that the failure of the appellant to pay the balance of Rs.75,000 on 6.4.1981 and failure to pay the last installment of Rs.75,000 on or before 30.5.1981 clearly amounted to breach and time for such payment was the essence of the contract, the respondents were justified in determining the agreement of sale which they did by notice dated 2.8.1981 (Ex. P5). Therefore rejection of the prayer for specific performance is upheld. 11. Learned counsel for the plaintiff-respondent has submitted that the balance sale consideration of Rs. 7.5 lakhs was paid to the defendant within two months from the date of execution of agreement to sell and the plaintiff had performed his part of the agreement in full. It was defendant who failed to perform his part of agreement by executing the sale deed in favour of plaintiff. There was no provision in the agreement that within one year notice shall be sent by the plaintiff to the defendant for performing his part of the contract. It was defendant who failed to perform his part of agreement by executing the sale deed in favour of plaintiff. There was no provision in the agreement that within one year notice shall be sent by the plaintiff to the defendant for performing his part of the contract. Article 54 of the Limitation Act provides for three years period for instituting suit from the date of mentioned in the agreement, if there is no date mentioned, from the date of notice therefore the suit was instituted within time. The legal notice sent by the plaintiff was never replied by the defendant wherein the plaintiff mentioned that he is ready and willing to get the sale deed executed since he has paid the entire sale consideration to the defendant and he has executed receipt of payment dated 30.11.2012 putting his thumb impression and signature thereon. The photographs of the parties were affixed on the receipt and once the contents of the notice were not denied it would be deemed that the plaintiff acquiesced to the averments in the notice. The readiness and willingness has been pleaded in paragraphs 2 and 3 of the plaint but the averments have not been replied. All the plaint averments are unrebutted and therefore the suit has rightly been decreed for the main relief by the lower appellate court. 12. The receipt of payment is not required to be registered as per Section 17 of the Registration Act. The defendant never filed any application for recall the ex-parte decree of the trial court, praying for opportunity to file his written statement and to lead evidence and therefore he does not deserves any latitude at this stage. There is no provision in law which provides that notice requiring specific performance of contract of sale is required to be given prior to the date fixed in the agreement. The pleas raised before this court by the defendant were not raised before the court below therefore the second appeal deserves to be dismissed. 13. In support of this contention that receipt of payment is not required to be registered as per Section 17(1)(b) & (c) of the Registration Act, learned counsel for the plaintiff-respondent has relied upon the judgment of the Apex Court in the case of Lal Chand (dead) by LRS vs. Kasturi Lal and another, 1989 (Supp.2) SCC 408 paragraph 1 is quoted hereunder:- 1. Special leave was granted confined to the question as to whether Ex. P-1 was compulsorily registrable. We have heard learned counsel for the parties. The document which is on record has also been seen by us. It is a receipt evidencing payment of money and we are of the view that the provisions of Section 17(1)(b) and (c) of the Registration Act would not apply to the document so as to require it to be compulsorily registered. The High Court was, therefore, right in relying upon the document though it was not registered. 14. His argument that is that readiness and willingness is to be ascertained from the spirit and substance and not from the words used in the plaint. His argument is that once the entire sale consideration was paid by the plaintiff his readiness and willingness stood proved as per the requirement of the statute and the relief prayed by the plaintiff was rightly granted by the lower appellate court. He has placed reliance by the judgment of the Apex Court in Syed Dastagir vs. T.R. Gopalakrishnasetty, 1999 AIR (SC) 3029 he has relied upon paragraphs 11, 12 and 13 which are quoted hereunder:- "11. Section 16(c) of the Specific Relief Act, 1963 is quoted hereunder: "16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- (a)-(b)*** (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.- For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." It is significant that this explanation carves out a contract which involves payment of money as a separate class from Section 16(c). Explanation (i) uses the words "it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court". Explanation (i) uses the words "it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court". (emphasis supplied) This speaks in a negative term what is not essential for the plaintiff to do. This is more in support of the plaintiff that he need not tender to the defendant or deposit in court any money but the plaintiff must [as per Explanation (ii)] at least aver his performance or readiness and willingness to perform his part of the contract. This does not mean that unless the court directs the plaintiff cannot tender the amount to the defendant or deposit in the Court. The plaintiff can always tender the amount to the defendant or deposit it in court, towards performance of his obligation under the contract. Such tender rather exhibits the willingness of the plaintiff to perform his part of the obligation. What is "not essential" only means need not do but does not mean he cannot do so. Hence, when the plaintiff has tendered the balance amount of Rs. 120 in court even without the Court's order it cannot be construed adversely against the plaintiff under Explanation (i). Hence, we do not find any merit in the submission of the learned counsel for the respondents. 12. In interpreting a pleading wherever there be two possible interpretations, then the one which defeats justice should be rejected and the one which sub-serves to justice should be accepted. 13. It was held in the case of R.C Chandiok v. Chuni Lal Sabharwal AIR 1971 SC 1238 that readiness and willingness cannot be treated as a strait-jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. Finally, we have no hesitation to hold that the pleading as made by the plaintiff not only shows his readiness and willingness to perform his part of the obligation under the contract but by tendering the total amount shows he has performed his part of the obligation. We also construe such a plea to be a plea of "readiness and willingness" as required under Section 16(c). We also construe such a plea to be a plea of "readiness and willingness" as required under Section 16(c). In view of the aforesaid findings we hold that the High Court committed an error by defeating the claim of the plaintiff on the basis of a wrong interpretation of his plea in terms of the said section. 15. Counsel for the plaintiff-respondent has submitted time was not the essence of contract in this case and fixation of period was not a decisive text. He has relied upon paragraph 12 of the judgment in the case of Raghuvir Singh Bhaty vs. Ram Chandra Waman Subhedar of this court, 2002 AIR(All.) 13 which is quoted below:- "It is well settled that in transactions where time is the essence of the contract delay is fatal. Shri Ravi Kant contends that by fixing the time limit of six months for execution of the sale deed. It was clear that time was meant to be the essence of the contract. It is equally well settled that ordinarily in contract relating to sale of immovable property other than commercial transactions which the present one does not appear to be, as the plaintiff wants the land for building a house for himself, time is not the essence of contract. Mere fixation of the period within which the contract is to be performed is not decisive test either vide AIR 1967 SC 868 Gomathinayagam v. Palaniswami. There is in the present agreement or recital that the parties intended time to be of the essence nor is there anything else therein to indicate so. The sale deed was to be executed after permission from the Competent Authority Land Ceiling the grant or refusal of which takes an uncertain span of time. It cannot be said in these circumstances that the time was the essence of contract. Indeed no such contention appears to have been advanced before the Court below." 16. The sale deed was to be executed after permission from the Competent Authority Land Ceiling the grant or refusal of which takes an uncertain span of time. It cannot be said in these circumstances that the time was the essence of contract. Indeed no such contention appears to have been advanced before the Court below." 16. In the same context, judgment in the case of Gomathinayagam Pillai and Others vs. Palaniswami Nadar, 1967 AIR (SC) 868 has been relied upon and paragraph 18 has been quoted below: "I am of the opinion that the trial Court was clearly wrong in inferring that the respondent was not ready and willing to perform the contract from the fact that from April 30, 1959 up to the middle of July 1959 the respondent had not taken any steps in the matter and from his failure to explain the delay. If the respondent was guilty of laches, it was the duty of the appellants to fix a reasonable time for the completion of the sale. Mere delay, short of waiver or abandonment of the contract is no ground for refusing relief, nor is it evidence of lack of readiness and willingness. The materials on the record clearly indicate that the respondent was at all material times ready and willing to perform the contract. The total consideration money was Rs. 15,106/- On March 5, 1959, the respondent made an advance deposit of Rs. 1,006/-. On April 4, 1959, he made another deposit of Rs. 2,000/-. As soon as he received the letter dated July 30, 1959, he deposited the balance sum of Rs. 13,906/- in a bank. Counsel urged that before July 30, 1959 the respondent should have been ready with the money. There is no force in this contention. In Bank of India Limited v. Jamsetji A.H. Chinoy and Messrs. Chinoy and Company (1), the Privy Council decreed specific performance of the contract to sell shares. On the question of readiness and willingness of the buyer to perform the contract, Lord Mcdermott observed at p. 91 of the Report : "It is true that the first plaintiff stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction." 17. Reliance on the judgment of Babu Ram @ Durga Prasad v. Sri Indra Pal Singh (dead) by LRS, 1998 AIR (SC) 3021 has been made to advance the argument that the issue not press before the trial court cannot be raised for the first time in second appeal and paragraph 11 of the judgment is being quoted below:- "Novation under section 62 of the Contract Act required a clear plea, issue and evidence. Such a question cannot be raised or accepted under section 100 CPC for the first time in Second Appeal. There was no such issue in the courts below and the defendant's evidence was contrary to such a theory." 18. After hearing the counsel for the parties and going through the authorities cited on their behalf. This court comes to the conclusion that the judgment of the lower appellate court does not calls for any interference by this court for the reasons given hereinafter. 19. From the pleadings of the parties it was clear that the advance sale consideration of Rs. 2.5 lakhs was paid by the plaintiff to the defendant on 31.10.2012 and thereafter the balance sale consideration of Rs. 7.5 lakhs was paid to him on 30.11.2012. As per the terms of the contract the sale deed was to be executed within one year of the execution of the agreement to sell which was registered on 06.11.2012. It is an admitted fact that the notice was sent by the plaintiff to the defendant calling him to execute the sale deed on 23.06.2014 which was never replied by the defendant. He did not appeared before the Sub-Registrar on the appointed date and the attendance of the plaintiff was recorded by the Registrar on 30.06.2014. Thereafter the suit was instituted before the trial court in July, 2014. 20. The defendant despite service of notice did not appeared before the trial court and the suit was decreed against him ex-parte. The trial court found that the receipt of making the balance sale consideration of Rs. 7.5 lakhs by the plaintiff to the defendant is an unregistered document and therefore cannot be relied upon. 20. The defendant despite service of notice did not appeared before the trial court and the suit was decreed against him ex-parte. The trial court found that the receipt of making the balance sale consideration of Rs. 7.5 lakhs by the plaintiff to the defendant is an unregistered document and therefore cannot be relied upon. It further found that the plaintiff has failed to prove his readiness and willingness to get the contract executed because the payment of balance sale consideration is found to be suspicious. For the aforesaid reason, learned trial court decreed the suit of the plaintiff only for the return of the advance sale consideration of Rs. 2.50 lakhs to the plaintiff by the defendant. The lower appellate court found that the receipt of payment is not required to be registered under Section 17 of the Registration Act and therefore the plaintiff was found to have paid the entire sale consideration to the defendant. The lower appellate court also found that the trial court had committed error in considering the period of limitation for filing the suit since it has recorded the finding that the plaintiff was required to sent notice to the defendant within one year period provided in the agreement but he sent the same after expiry of six months period, after one year period mentioned in the agreement expired. 21. Therefore, only two issues arise for consideration in this appeal, one is whether the plaintiff was required to issue notice to the defendant within one year period provided in the agreement for the purpose of execution of the sale deed or the notice given after six months of the one year period provided in the agreement is valid and not barred by Section 54 of the Limitation Act. Second issue is whether the receipt of receiving balance sale consideration of Rs. 7.5 lakhs was valid without registration or not. 22. Regarding the first issue the counsel for the defendant-appellant has submitted that since one year period was provided in the agreement therefore the notice should have been given by the plaintiff to the defendant within the aforesaid period and the issuance of notice after further period of six months rendered the suit was barred by time and ought to have been dismissed. The reliance of the counsel for the defendant-appellant on the Constitution Bench of judgment in the case of Chanda Rani (supra) shows that the constitution bench of the Apex Court held that in the case of sale of immovable property time is never an as essence of contract. 23. It has been held that at the most when a party to a contract promises to do a certain thing at or before specified time and fails to do so, the contract become voidable at the option of promises if the intention of the party was that time should be essence of the contract. Mere specification of time and default in compliance therewith does not make the contract unenforceable. The totality of circumstances and conduct of the parties is required to be seen before arriving at a definite conclusion. 24. The paragraphs nos. 19, 20, 21, 22, 23, 24 and 25 of the judgment of Chanda Rani (supra) are being quoted below:- 19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract 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. An intention to make time the essence of the contract must be expressed in unequivocal language 20. We will now refer to the decisions of this Court. An intention to make time the essence of the contract must be expressed in unequivocal language 20. We will now refer to the decisions of this Court. In Gomathinayagam Pillai case, 1967 (1) SCR 227 : 1967 AIR(SC) 868 it was held at pages 231 to 233 "...Section 55 of the Contract Act which deals with the consequence of failure to perform an executory contract at or before the stipulated time provides by the first paragraph 'When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the opinion of the promise if the intention of the parties was that time should be of the essence of the contract. 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 property agreed to be sold, conduct 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 relief. 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. 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. In Jamshed Khodaram Irani v. Burjorji Dhunjibhai [ILR 40 Bom 289] the Judicial Committee of the Privy Council observed that the principle underlying Section 55 of the Contract Act did not differ from those which obtained under the law of England as regards contracts for sale of land. The Judicial Committee observed 'Under that law equity, which governs the rights of the parties is cases of specific performance of contracts to sell real estate, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really and in substance intended more than that it should take place within a reasonable time.... Their Lordships are do opinion that this is the doctrine which the section of Indian Statute adopts and embodies in reference to sales of land. It may be stated concisely in the language used by Lord Cairns in Tilley v. Thomas [(1867) 3 Ch App 61]" The construction is, and must be, in equity the same as in a Court of law. A Court of equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry [(1853) 3 DGM &G 284]) there is nothing in the 'express stipulation between the parties, the nature of the property, or the surrounding circumstances' which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract. Of the three grounds... mentioned by Lord Justice Turner 'express stipulations' requires no comment. The 'nature of property' is illustrated by the case of reversions, mines, or trades. The 'surrounding circumstances' must depend on the facts of each particular case. Of the three grounds... mentioned by Lord Justice Turner 'express stipulations' requires no comment. The 'nature of property' is illustrated by the case of reversions, mines, or trades. The 'surrounding circumstances' must depend on the facts of each particular case. "Their Lordships will add to the statement just quoted these observations. The special jurisdiction of equity to disregard the letter of the contract in ascertaining what the parties to the contract are to be taken as having rally and in substance intended as regards the time of its performance may be excluded by any plainly expressed stipulation. But to have this effect the language of the stipulation must show that the intention was to make the rights of the parties depend on the observance of the time-limits prescribed in a fashion which is unmistakable. The language will have this effect if it plainly excludes the notion that these time-limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay as its foundation. 'Prima facie, equity treats the importance of such time-limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a court of law the contract has not been literally performed by the plaintiff as regards the time-limit specified.'" 21. In Govind Prasad Chaturvedi v. Hari Dutt Shastri, 1977 (2) SCC 539 following the above ruling it was held at page 543-544 : (SCC para 5) "....It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. (Vide Gomathinayagam Pillai v. Pallaniswami Nadar (at p.233)). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract." 22. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract." 22. In Hind Construction Contractors case quoting Halsbury's Laws of England, this Court observed at pages 1154-55 as under : (SCC pp. 76- 77, paras 7 & 8) "In the latest 4th edn. of Halsbury's Laws of England in regard to building and engineering contracts the statement of law is to be found in Vol. 4, Para 1179, which runs thus:- '1179. Where times is of the essence of the contract.- The expression time is of the essence means that a breach of the condition as to the time for performance will entitle the inconstant party to consider the breach as a repudiation of the contract. Exceptionally, the completion of the work by a specified date may be a condition precedent to the contractor's right to claim payment. The parties may expressly provide that time is of the essence of the contract and where there is power to determine the contract on a failure to complete by the specified date, the stipulation as to time will be fundamental. The parties may expressly provide that time is of the essence of the contract and where there is power to determine the contract on a failure to complete by the specified date, the stipulation as to time will be fundamental. Other provisions of the contract may, on the construction of the contract, exclude an inference that the completion of the works by a particular date is fundamental; time is not of the essence where sum is payable for each week that the work remains incomplete after the date fixed, nor where the parties contemplate a postponement of completion where time has not been mad of the essence of the contract or, by reason of waiver, the time fixed has ceased to be applicable, the employer may be notice fix a reasonable time for the completion of the work and dismiss the contractor on a failure to complete by the date so fixed.' It will be clear from the aforesaid statement of law that even where the parties have expressly provided that time of the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental; for instance, if the contract were to include clause providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clause would be construed as rendering ineffective the express provision relating to the time being of the essence of contract. The emphasis portion of the aforesaid statement of law is based on Lamprell v. Billericay Union [(1849) 2 Exch 283, 308]; Webb v. Hughes [(1870) LR 10 Eq 281] and Charles Rickards Ltd. v. Oppenheim. [ [1950] 1 K.B. 616 ]" 23. In Indira Kaur (Smt) v. Sheo Lal Kapoor in paragraph 6 it was held as under "The law is well-settled that in transactions of sale of immovable properties, time is not the essence of the contract." 24. For this proposition reliance was placed on Govind Prasad Chaturvedi case quoted above. 25. [ [1950] 1 K.B. 616 ]" 23. In Indira Kaur (Smt) v. Sheo Lal Kapoor in paragraph 6 it was held as under "The law is well-settled that in transactions of sale of immovable properties, time is not the essence of the contract." 24. For this proposition reliance was placed on Govind Prasad Chaturvedi case quoted above. 25. 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. from the surrounding circumstances, for example : the object of making the contract 25. Even in paragraph 43 of the judgment in the case of Sardamani Kadappa (supra) the Apex Court has held that when the parties provided for the time period in the contract, it must have some significance and when major part of consideration required be paid to the vendor and possession has been delivered in part performance, the equity shifts in his favour and three years period provided under Article 54 will assist the plaintiff. 26. The question of readiness and willingness is dependent upon the fact whether entire sale consideration was paid by the plaintiff to the defendant or not. In the case of Lal Chand (dead) by LRS (supra) the Apex court has held that where a receipt evidencing the payment of only money is concerned, it is not required to be registered as per section 17 of the Registration Act. 27. If the payment of the entire sale consideration is found to have been paid to the defendant by the plaintiff by means of the unregistered receipt as per the judgment of Syed Dastagir (supra) the readiness and willingness of the plaintiff stands proved in substance since his part of contract stands complied and the defendant never disputed the same by filing any written statement before the court below. The conduct of the defendant of not appearing before the court below is also relevant since had the balance sale consideration of Rs. 7.5 lakhs not being received by him, he would have definitely contested the suit. The conduct of the defendant of not appearing before the court below is also relevant since had the balance sale consideration of Rs. 7.5 lakhs not being received by him, he would have definitely contested the suit. All the arguments and pleadings made in the second appeal on behalf of the defendant are being raised for the first time and cannot be approved. 28. This second appeal does not involves any substantial question of law. The judgment of the lower appellate court is well considered and does not suffers from any error of law. 29. This second appeal is dismissed under Order 41 Rule 11 C.P.C.