JUDGMENT : The appeal is directed against the judgment and decree dated 23.08.2005 passed by the learned II Additional Civil Judge (Senior Division), at Dharwad in O.S.No.95/1994. The suit of the plaintiff came to be decreed and the defendant was directed to execute the registered sale deed of the schedule property by receiving the balance consideration of Rs.2,23,000/-within three months from the said order. 2. In order to avoid confusion and overlapping, the parties are hereinafter referred to in accordance with their rank and status as stood before the trial Court. 3. This is defendant’s appeal. 4. The brief facts of the case as stated is that the defendant is the owner of the house bearing No.61/B measuring 2 guntas 6 annas situate at Saptapur, Dharwad. The plaintiff was in need of a residential accommodation at Dharwad and after mutual offer and acceptance, the defendant agreed to sell the schedule property for a cash consideration of Rs.2,76,000/-. The defendant received earnest money of Rs.45,000/-from the plaintiff on 27.11.1990. The balance sale consideration was agreed to be paid within a period of three months. Meanwhile, the defendant agreed that he would obtain necessary permission and clear all encumbrances on the schedule property. Thus, the gist of the sale agreement is that, it is dated 27.11.1990 for total cash consideration of Rs.2,76,000/-, advance amount is Rs.45,000/-and the balance payable is Rs.2,31,000/-. It is stated that subsequently, on 20.12.1991, the plaintiff paid another sum of Rs.8,000/-to the defendant as per Ex.P-13. 5. The learned trial Judge was accommodated with the oral and written evidence as under: Plaintiff side : PW-1-Shyam Kumar Mrigeppa Horadi PW-2-Smt Kamala Hammigi of Dharwad Exs.P-1 to P-24 were marked. Defendant side: DW-1 Shankarashetti of Dharwad. No documents were marked 6. The following issues were framed: 1. Whether the plaintiff prove that the defendant in terms of agreement of sale has handed over the possession of the suit house to the plaintiff on 27.11.1990? 2. Whether the defendant prove that as per the terms of agreement of sale, the plaintiff was to get the sale deed executed within the period of 3months from 27.11.1990? 3. If so, whether the defendant further prove that the plaintiff failed to specifically perform his part of the contract? 4. Whether time is the essence of the contract? 5. Whether the suit is not maintainable? 6. Whether the plaintiff is entitled for the reliefs claimed? 3. If so, whether the defendant further prove that the plaintiff failed to specifically perform his part of the contract? 4. Whether time is the essence of the contract? 5. Whether the suit is not maintainable? 6. Whether the plaintiff is entitled for the reliefs claimed? 7. What order or decree? Addl. Issue dated 4.6.05 1. Whether on the date of filing of the suit, the PA holder of the plff. had no authority to file the suit on behalf of the plaintiff? Addl. Issue No.2 Whether PA holder of the plaintiff proves that he has been always ready and willing to perform his part of the contract on behalf of the plaintiff? 7. The substance of the claim of the plaintiff as stated are that he is entitled for specific performance of the contract dated 27.11.1990 in respect of the suit schedule property for a consideration of Rs.2,76,000/-and he has already paid Rs.45,000/-as advance and Rs.8,000/-subsequently. And the remaining amount he is ready and willing but the defendant, on one or the other pretext has not obtained permission. Meanwhile, it is contended that there was encumbrance on the schedule property in the form of loan as reflected from Ex.P-9. The learned trial Judge found the execution of the agreement is proved. Basically, the issuance of the notice by the defendant and also reply by the plaintiff go to show that factum of agreement is not disputed. 8. Learned Counsel. Sri. R.V. Itagi for the appellant/defendant would submit that the trial Court failed to understand the broad scope of Contract of Specific Performance and the circumstances of time playing his role as the Essence of Contract. Other documents go to show that plaintiff never, for a moment, backtracked from the agreement. Incidentally, the defendant also contends that the documents filed themselves prove that it was the defendant who was ready for execution of the sale deed and the default is from the part of the plaintiff. 9. Incidentally, the defendant also contends that the documents filed themselves prove that it was defendant who was ready for execution of the sale deed and the default is from the part of plaintiff. 9. Incidentally, the defendant also contends that the documents filed themselves prove that it was defendant who was ready for execution of the sale deed and the default is from the part of plaintiff. From the documents marked in this case it is amply clear and moreover admitted that the sale agreement between the plaintiff and defendant dated 27.11.1990 is not disputed and the time agreed therein was three months, however plaintiff had to fulfill certain formalities and obtain permission. This circumstance appeared to be formal and there is no mandatory permission required and there was exchange of notices. Incidentally, the first notice is from the defendant and the second notice is from the plaintiff to the defendant. 10. The main subject matter of the execution of the agreement and receipt of advance amount are not disputed. 11. There is no necessity of deep analysis and appreciation of evidence regarding execution of the sale agreement. Though it is appealed under Section 96 of CPC, point of law is also involved in it. For that matter, it is not mandatory that point of law would be only in second appeal. Even in first appeal question of law has to be decided. 12. It is a suit for specific performance. Sale agreement is dated 27.11.1990, three months time was prescribed, suit was filed in 1994, notice was exchanged on 20.10.1992 i.e. Ex.P.6 and another notice was sent by the plaintiff as per Ex.P.8 and Ex.P.11 is the reply by the plaintiff. In the circumstances, now the question is whether the time is essence of contract in case of contract relating to immovable property more particularly contract for sale and whether there is any mechanism for making time as the essence of contract to avoid the limitation period of three years. 13. Learned counsel Sri. R. M. Kulakarni submits that sale agreement was entered into for the purpose of clearing encumbrances on the schedule property. In this connection Ex.P.2 sale agreement is perused. It is in Kannada, which is marked at Ex.P.2 in favour of Smt. Kamala D/o. Rangachari by one K. Shankar Shetty. Schedule property is plot No.4A in Survey No.61/B. The third para of the document is in Kannada language. As I am acquainted with Kannada language, I translate it. It is a narration made by the defendant. It is in Kannada, which is marked at Ex.P.2 in favour of Smt. Kamala D/o. Rangachari by one K. Shankar Shetty. Schedule property is plot No.4A in Survey No.61/B. The third para of the document is in Kannada language. As I am acquainted with Kannada language, I translate it. It is a narration made by the defendant. He has obligations or loan on the schedule property and he was supposed to clear it because of that he has agreed to sell the schedule property for Rs.2,76,000/-and hence, he entered into an agreement. Thus, it is clear that the defendant entered into sale agreement to clear the encumbrances on the schedule property. The next development is notice by the defendant to the plaintiff, which is marked at Ex.P.6, issued on behalf of the defendant by the learned Counsel Sri. V.C. Patil. He explains in the notice different developments of the agreement. Plaintiff is stated to be an employee in Doordarshan Bangalore and defendant is employee in KVG Bank. In the said notice defendant in Para No.5 contends as under: “5. Despite your non-cooperation, my client is ever ready and willing to execute the final sale deed in your favour. Therefore, you are hereby called upon by this legal notice to purchase the required stamp papers, prepare the draft sale deed and hand over it to my client and also deposit the balance amount of Rs.2,31,000/-within a week from the date of receipt of this notice and also fix up a date for registration of final sale deed within 15 days thereafter, and intimate the same to my client so that he too will be ready in the matter. In case you fail to comply the terms of this notice, then you please take notice that the contract entered by my client with you is rescinded; and in consequence thereof the earnest money paid by you to my client is forfeited. Further my client will also be at liberty to institute a suit against you in court of law for appropriate reliefs, claiming damages, you will be also responsible for the costs and consequences.” 14. Meanwhile there is a blame game of non readiness by the plaintiff against the defendant vice-versa. Now what is clear by this time is that whether the time was not essence of the contract that too for immovable property in the circumstances of the case. Meanwhile there is a blame game of non readiness by the plaintiff against the defendant vice-versa. Now what is clear by this time is that whether the time was not essence of the contract that too for immovable property in the circumstances of the case. Ex.P.11 is the reply given by the plaintiff. Ex.P.9 is the document showing the existence of loan on the schedule property with Malaprabha Grameen Bank where the defendant is working. 15. Thus after much churning the highlights, the bone of contentions between the parties is that the sale agreement of immovable property was entered into on 27.11.1990, a time of three months was fixed, the defendant, in the meanwhile, was to take permission, the nature of which is not stated and it is submitted to be a formal one, which is not an impediment for registration. The contents of the sale agreement are not disputed. In the subsequent circumstances for issuing of notice, the defendant represented by the power of attorney holder, which is no surprise. 16. Thus, in the clear circumstances of the case, the defendant asserts that the plaintiff is not co-operative and though the prescribed time under the agreement is over and expects him to pay the required stamp papers, draft sale deed, hand it over to the defendant and also deposit the balance consideration of Rs.2,31,000/-in the name of Branch Manager M.G. Bank Dharwad and fix a date for registration for the final sale deed within 15 days and incase of non-compliance, agreement fails. 17. Thus, the above para No.5 state about the legal position and its role over the case. In the normal circumstances, the due date for the sale agreement would be 27.11.1990 plus three month and that would be 26.02.1991. This, Ex.P.6 was sent by the defendant to the plaintiff on 20.10.1992. Meanwhile plaintiff claims that he has paid Rs.8,000/-under Ex.P.13 on 21.12.1991. With all this, under Ex.P.6 the defendant never ventured to deny the sale agreement and its execution by him, including receipt of sale consideration advance amount of Rs.45,000/-. There is no mention of payment of Rs.8,000/-and the defendant denied the same. Now the deciding factor is whether the time is essence of contract. Normally, in case of sale of immovable property, time is not essence of contract. It is not a commercial transaction and the time becomes essentially the essence of contract. There is no mention of payment of Rs.8,000/-and the defendant denied the same. Now the deciding factor is whether the time is essence of contract. Normally, in case of sale of immovable property, time is not essence of contract. It is not a commercial transaction and the time becomes essentially the essence of contract. But that poses a mind in normal transaction with three or six months time is fixed for performance of sale agreement i.e. for plaintiff to pay the balance amount and get the sale deed executed in his favour. In this case, the very purpose of defendant agreeing to sell the property is to clear and also the loan in bank which is to the extent of Rs.2,31,000/-. Had the amount was paid earlier, the substantial interest amount would have been saved because of clicking of watch of interest on a loan never stops. Now the question arises whether a seller who has sold property and given time of one month or two months or six months should invariably wait for expiry of the time mentioned in the agreement by one or the other or for any reason, readiness and willingness being a question of fact, it is very difficult to say the answer in affirmative. Thus, though the time is essence of contract for sale of immovable property and after the time mentioned in the sale agreement if the seller, the defendant in this case, has given a notice directing the plaintiff to pay the amount of Rs.2,31,000/-to deposit in bank and send a draft sale deed or otherwise keep the stamp paper and fix the date for registration of final sale deed within 15 days from the notice, but that did not happen and the amount was not deposited with bank by the plaintiff. Thus, finally plaintiff turns out to be a defaulter. 18. Per contra, original suit came to be filed on 26.11.1993. Nearly after 11 months, a suit came to be filed. Thus, it is necessary to mention that whenever a time is fixed for performance of contract and the limitation commences from the due date, under Article 54 of the Limitation Act it is up to three years but it is not a vested right to the purchaser to consume all the three years even if he is not ready or willing to perform his part of contract. He should be ready and willing to perform his part of contract more particularly, when the defendant issues a notice to him to come forward for registration with balance consideration amount. 19. It is not a rule that plaintiff (purchaser) is in all circumstances is entitled for time fixed + three years, even if he does come about the reminder by the seller to perform the contract. The former was ready and invited the latter to come for registration but that was not complied and this becomes the key factor for the case. Thus, a subsequent notice after the expiry of the time mentioned in the agreement given by the seller/defendant to the purchaser/plaintiff to come prepared for the execution of the registered sale deed within a period of 15 days, which is absolutely a reasonable time, it is violated. Hence, time becomes the essence of contract and the defendant is not at breach and breach of contract is from the part of the plaintiff alone. However, insofar as the advance amount is concerned, though it is mentioned in the agreement and correspondence that Rs.45,000/-would be forfeited, it may not be just and proper to treat the entire amount of Rs.45,000/-as damages for the loss of time. 20. Further, the learned counsel for the defendant fairly concedes that the defendant would return the amount of Rs.45,000/-. In the whole, the learned Trial Court Judge failed to understand the legal principles to be applied in their spirit and legal position regarding the limitation has to be followed and applied, and there must be a striking balance between the contents of the documents, legal position and the evidence before the Court. 21. In view of the above, I proceed to pass the following: ORDER The appeal is disposed of. The judgment of the court below is liable to be set aside. Accordingly the suit of the plaintiff is dismissed. The appeal is disposed of with a direction to the defendant to maintain the undertaking of refunding Rs.45,000/-within fifteen days from the receipt of certified copy of this order.