JUDGMENT : T.V.Anilkumar, J. Defendants 1 and 2 in O.S. No.194/2010 on the files of the Subordinate Judge's Court, Kochi-5 challenge the decree for specific performance granted in favour of respondent/plaintiff directing them to execute a sale deed within a period of two months after accepting the balance sale consideration of Rs.20 lakhs. The suit brought against the 3rd defendant was, however, dismissed and in so far as the respondent who has not chosen to file an appeal against the said dismissal, the judgment to that extent has become final. 2. The appellants who are defendants 1 and 2 are the owners of 14.719 cents of land in Survey No.213/1 consisting of a residential building situated in Edakochi village held under separate title deeds in their names. They together agreed to sell the property in favour of the plaintiff by entering into Exhibit-A1 agreement dated 11.7.2009 after accepting an advance amount of Rs.10 lakhs from the latter. The market value of the property was agreed upon as Rs. 45 lakhs and the execution of sale was agreed to take place within a period of six months from the date of agreement for sale. As per the terms of agreement for sale, it was also agreed that the mortgagee already in possession of the property will be duly evicted within a month from the date of agreement for sale provided an additional advance amount of Rs.2 lakhs was also paid to the appellants by the plaintiff. On 28.8.2009 instead of Rs.2 lakhs, plaintiff paid an amount of Rs.7 lakhs to the appellants by way of a cheque drawn from South Indian Bank, Thoppumpady branch. The receipt of cheque was endorsed on the reverse side of Ext. A1 agreement for sale dated 11.7.2009. The mortgage was later redeemed and the property recovered from the possession of the mortgagee. On 11.6.2010, the appellants received another amount of Rs.5 lakhs also as advance amount in cash. On the same day itself, a cheque for Rs.3 lakhs drawn from the South Indian Bank, Thoppumpady branch was issued by the plaintiff to the appellants and thus on 11.6.2010, appellants received a total amount of Rs. 8 lakhs and the said fact was endorsed on the reverse side of Ext.A1. On the same day itself, a cheque for Rs.3 lakhs drawn from the South Indian Bank, Thoppumpady branch was issued by the plaintiff to the appellants and thus on 11.6.2010, appellants received a total amount of Rs. 8 lakhs and the said fact was endorsed on the reverse side of Ext.A1. By these endorsements, period of agreement for sale was extended from 11.6.2010 to another one month by the appellants undertaking to measure out the property within the said period. The relevant documents relating to the plaint property were also handed over to plaintiff on 11.6.2010 itself. These are all facts admitted as between the appellants and respondent and there is no challenge as to any of these matters. 3. According to the respondent, in spite of appellants' undertaking to measure out the property it was not done. Nevertheless, the respondent claims to have gone ahead with the promise made by him and handed over a draft sale deed on 08.07.2010 for the approval of appellants. The draft was not approved by appellants and according to him, he therefore, intimated the appellants through Ext.A2 lawyer notice dated 12.7.2010 that he would appear before the Sub Registry on 19.7.2010 with balance amount of sale consideration being prepared to take the sale deed if executed, in his name. The appellants, on the other hand, sent a reply notice on 14.7.2010 intimating that agreement for sale stood cancelled for the alleged breach of promise committed by the respondent. Alleging these facts and also imputing breach of promise on the appellants, the respondent filed the present suit in the month of October 2010 impleading HDFC Bank also as third defendant who was holding mortgage interest in the plaint schedule property. 4. According to the respondent, it came to his notice that 3rd defendant, Bank was holding equitable mortgage in the property on deposit of title deed with it and the appellants had not chosen to redeem the mortgage which was, in fact, was not disclosed in Ext.A1 sale agreement. The respondent, however, wished that the liability of appellants with the HDFC Bank also be adjudged in the same proceedings and a decree for specific performance binding on the Bank be passed along with the appellants. The respondent, however, wished that the liability of appellants with the HDFC Bank also be adjudged in the same proceedings and a decree for specific performance binding on the Bank be passed along with the appellants. That is how HDFC Bank was arrayed as the 3rd defendant in the suit which was later dismissed by the trial court accepting the Bank's contention that it was not a necessary party. 5. The 3rd defendant defended the suit on the ground that there was no privity of contract between the respondent and the Bank and therefore had no liability to execute the sale deed in favour of the respondent. The same was also the contention pursued by the appellants in their joint statement. Anyway, the plea of misjoinder was upheld and after finding that there is no privity of contract between the bank and the plaintiff, the trial court dismissed the suit as against the 3rd defendant which has now become final since the respondent has not chosen to challenge the dismissal. 6. The appellants did not dispute either the execution of Ext.A1 agreement for sale or the terms, stipulations and also the contents of the sale agreement. The appellants fully accepted the agreement for sale as legally binding on them. The sole contention on which the suit for specific performance was opposed is that the respondent had never been ready and willing to perform his part of the contract and he committed breach of promise right from the original date of performance fixed as per Ext.A1 agreement for sale. According to the appellants, the period originally fixed as per Ext.A1 agreement for sale was further extended for another one month since 11.6.2010 after accepting advance amounts in piece meal at the request of the respondent and upon his representation that he wanted more time to raise funds as he was in impecunious state of affairs. The appellants' contention is that time fixed as per agreement for sale formed essence of the contract and as agreed in Ext.A1 itself, failure on the part of the respondent in clearing the payment of balance sale consideration within the stipulated time, resulted in cancellation of the agreement in question. The appellants' contention is that time fixed as per agreement for sale formed essence of the contract and as agreed in Ext.A1 itself, failure on the part of the respondent in clearing the payment of balance sale consideration within the stipulated time, resulted in cancellation of the agreement in question. The appellants denied the respondent having brought draft sale deed for their approval and further asserted that steps to measure out the property within the extended period of original agreement, were duly taken in compliance with the endorsement made on Ext.A1. 7. The court below went into two material questions of fact as to whether time for performance was understood by the parties as the essence of the contract and further the plaintiff was ready and willing to perform his part of the contract as undertaken in Ext.A1 agreement for sale. It examined the respondent as PW1 and admitted in evidence Exts. A1 to A13 in the course of trial of the issues. On appreciation of facts, evidence and law, it took the view that time was, however, not the essence of the contract as borne out from the conduct of the appellants especially after they having volunteered to extend the original time fixed for performance and allowed the respondent to perform his part of the contract on a deferred future date. It held that there was no proof of breach of promise on the part of the respondent and he was all through out ready and willing to perform his part of the contract. It also took note of the fact that the plaint property was subject to a mortgage held by the 3rd defendant which was not disclosed on the date when Ext.A1 was brought into existence and this conduct of the appellants amounted to material suppression. It was therefore, of the view that so long as the encumbrance in favour of HDFC Bank was not cleared and appellants' liability stood undischarged, the respondent could never be faulted as being responsible for breach of contract. 8. In this appeal, the major contention that was urged by the learned counsel for the appellants is that evidence on record did not justify a finding that the respondent had been ready and willing to perform his part of the contract as undertaken in Ext.A1 agreement for sale. In our opinion also, no other question material for decision arises. 9. In this appeal, the major contention that was urged by the learned counsel for the appellants is that evidence on record did not justify a finding that the respondent had been ready and willing to perform his part of the contract as undertaken in Ext.A1 agreement for sale. In our opinion also, no other question material for decision arises. 9. The obligation cast upon the respondent under Exhibit-A1 was to clear payment of balance sale consideration before the expiry of six months stipulated by the parties and take the sale deed in his name. The contention of the appellants is that six months' period fixed for performance was the essence of contract and since the balance sale consideration was not paid within the time fixed, the respondent was at fault and the breach of promise being on his part, he was not entitled to a decree for a specific performance of the contract. 10. The period of six months fixed under Exhibit-A1 agreement for sale expired on 11.01.2010. The balance price was not admittedly paid to the appellants either on or before that date. The explanation offered by the respondent in this respect, according to us, requires only to be accepted. The appellants had agreed to recover the plaint property from the possession of a mortgagee already residing in the building within one month from the date of Ext.A1 agreement and for this purpose, the respondent had undertaken to make payment of an additional advance amount of Rs. 2 Lakhs enabling the appellants to redeem the mortgage. The endorsement later made on Ext.A1 discloses that on 28.08.2009, instead of Rs.2 Lakhs, the respondent offered a higher amount of Rs.7 Lakhs to the appellants. It is an undisputed fact that the mortgagee was evicted from the property only after expiry of the contractual period fixed as per Exhibit-A1. The appellants' contention in the written statement itself is to the effect that possession was recovered from mortgagee on 17.01.2010 whereas the period of six months fixed as per ExhibitA1 already expired on 11.01.2010. It goes without saying that liability of respondent to clear payment of balance sale consideration could emerge only after the property from the possession mortgagor being recovered. No breach of promise could therefore be imputed on the respondent. 11. The respondent's conduct of effecting payment of Rs.7 Lakhs in lieu of Rs. It goes without saying that liability of respondent to clear payment of balance sale consideration could emerge only after the property from the possession mortgagor being recovered. No breach of promise could therefore be imputed on the respondent. 11. The respondent's conduct of effecting payment of Rs.7 Lakhs in lieu of Rs. 2 Lakhs, on 28.08.2009, proves that he committed no breach of promise but on the other hand, he rightfully expected the appellants to evict the mortgagee from the property and intimate him about redemption. The delay on the part of the appellants in recovering the property from the possession of mortgagee reveals that they did not intend to treat the period fixed for performance under Exhibit-A1 as essence of the contract. 12. In fact, there is no convincing evidence as to the precise date on which property was actually recovered from the mortgagee except the mere verbal assertion made by the appellants. No document evidencing the date of payment of mortgage money nor the release of mortgage is forth coming in evidence. There is no evidence also to prove that that appellants ever informed the respondent of the date of eviction of mortgagee through any means. Without this material fact being made known, one wonders as to how appellants could have insisted the respondent for performance of his part of the contact. Therefore the contention of the appellants that the respondent was completely at breach and failed to perform his part of the contract cannot be countenanced. 13. It is an admitted fact that the parties through mutual consensus extended the period of performance for one month since 11.06.2010 when appellants received some more amounts towards balance sale consideration. The period for performance was extended by twin endorsements made on 11.06.2010 on the reverse side of Exhibit-A1 agreement for sale. The endorsements prove that the appellants received a sum of Rs.8 lakhs from the respondent on 11.06.2010 and allowed him to complete the sale transaction within one month from 11.06.2010. The endorsements further disclose that the copies of relevant documents necessary for documentation were handed over by the appellants to the respondent. Appellants also undertook to measure out the property and identify the true extent of land proposed for sale before the expiry of revised period of one month. The endorsements further disclose that the copies of relevant documents necessary for documentation were handed over by the appellants to the respondent. Appellants also undertook to measure out the property and identify the true extent of land proposed for sale before the expiry of revised period of one month. After extension of period through the endorsements above, the liability of the respondent towards balance sale consideration stood confined to Rs.20 Lakhs out of the total sale price of Rs.45 Lakhs. 14. According to the respondent, he performed his part of the contract within the revised period fixed for performance by taking a draft sale deed to the appellants for approval. But the appellants refused to give approval for unjustifiable reasons. According to the respondent, in fact, the plaint property was not measured out and nonetheless, he went ahead being ready and willing to perform his part of the contract. He sent Exhibit-A2 lawyer's notice on 12.07.2010 to the appellants informing his readiness to pay the balance sale price and meet the appellants on 19.07.2010 at the concerned Sub Registrar Office for taking sale deed in his name. But appellants denied his liability to execute sale deed by sending Exhibit-A3 reply, on the ground that the respondent committed breach of promise and consequently as per the terms of contract, agreement stood revoked. These facts were sworn to by the respondent as PW1. The 1st appellant sought to rebut these facts in his testimony as RW1 stating that breach of promise was, in fact, on the part of the respondent and the property was already measured out within the extended period of contract itself. 15. Whatever may be the rival versions of the parties adduced in evidence with respect to the alleged readiness and willingness of the respondent, one cannot forget the fact that the property was outstanding on equitable mortgage in favour of HDFC Bank, even prior to the execution of Exhibit-A1 agreement for sale. The existence of charge in favour of HDFC Bank was never disclosed in Exhibit-A1 agreement. According to the respondent, he came to know of the interest of HDFC Bank in the property only after he received relevant documents in respect of the property on 11.06.2010 when the period of performance of contract was sought to be revised by mutual agreement of parties. According to the respondent, he came to know of the interest of HDFC Bank in the property only after he received relevant documents in respect of the property on 11.06.2010 when the period of performance of contract was sought to be revised by mutual agreement of parties. It is also a fact that the appellants have not hither to discharged the encumbrance in favour of HDFC Bank. It escapes one's comprehension as to how the buyer of a property could be said to be obliged to pay the balance sale consideration and perform his part of the contract so long as the property subject to the subsisting charge is not cleared of liabilities in favour of third party. Until the seller of the property discharges his liability to third party, buyers' corresponding obligation to perform his part of the contract cannot be said to arise at all. The inaction on the part of the appellants to discharge their part of the liability appears to be a legitimate ground for the respondent to postpone performance of his part of contractual obligation. In the present case, the respondent through Exhibit-A2 lawyer's notice expressed his readiness and willingness to perform his part of the promise, despite the fact that HDFC Bank was holding mortgage right in its name. 16. The conduct of appellants in not having discharged the liability to HDFC Bank disentitles them from putting forth an argument that respondent failed to perform his part of the contract and therefore he committed breach of promise either within the original or extended period as fixed by the parties. Even though the appellants have put up a contention that the respondent had made them believe that the latter would settle liability of the appellants to HDFC Bank and cause to release the title deed, they failed either to prove or probabilise the contention in the above respect. On an over all appreciation of facts, evidence and conduct of the parties, we are satisfied that the respondent has been ready and willing to perform his part of the contract all through out right from the date of execution of Exhibit-A1 and continuously till the date of decree. There is no reasonable ground to interfere with the finding of the court below in this respect. 17. There is no reasonable ground to interfere with the finding of the court below in this respect. 17. It was rightly argued by the learned counsel for the appellants referring to P.Meenakshi Sundaram v. P.Vijayakumar and Another [2018(2) 15 SCC 80] and an unreported decision of the Hon'ble Supreme Court in Civil Appeal No. 10191 of 2018 that readiness and willingness of buyer to perform his part of the contract is not limited by law to the contractual period alone but on the other hand it spreads over to the entire period right from the date of contract till the hearing of the suit. We find from the evidence on record that Exhibits-A10 to A12 sale deeds taken in the name of the respondent in respect of some of the items of the properties purchased from the third parties during the pendency of the present suit prove that he was maintaining sufficient financial capacity to purchase the plaint schedule property also. As per Exhibit-A10 sale deed, he paid Rs.80,000/-to the seller for purchasing 7.89 ares as on 10.05.2011. Similarly, an area of 8.53 ares of land and the building was purchased from another seller under Exhibit-A11 on 09.11.2012 for a sum of Rs.8 Lakhs. Under ExhibitA12 sale deed dated 14.01.2013, he spent Rs.13,78,500/-for purchase of 1.82 ares of land. From the conduct of the respondent during the pendency of the present suit, it could be safely inferred that he possessed sufficient financial capacity for performing his part of the promise all through out the period of contract by offering to pay sale consideration for purchase of plaint schedule property. 18. We agree with the view of the court below that the respondent was ready and willing to perform his part of the contract all through out since the date of Exhibit-A1 agreement for sale and consequently the finding entered in this respect in the impugned judgment does not call for any interference. In the result, confirming the decree and judgment passed by the Subordinate Judges Court, Kochi, in O.S..No. 194/2010 dated 24.06.2014, the appeal is dismissed. The parties will suffer their respective cost.