Defendant

Arguments in favour of defendant (MR S)
K.S. Vidyanadam v. Vairavan 1997 AIR SCW 956

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
the modified, particularly in the case of urban immovable properties. It is high
time, the Court do so. In the instant case may be the parties knew of the
circumstance regarding rising prices but they have also specified six months as
the period within which the transaction should be completed. The said time-
limit may not amount to making time the essence of the contract but it must
yet have some meaning. Not for nothing could such time-limit would have
been prescribed. Can it be stated as a rule of law or rule of prudence that
where time is not made the essence of the contract, all stipulations of time
provided in the contract have no significance or meaning or that they are as
good as non-existent? All this only means that 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).
M/s. P.R. Deb and Associates v. Sunanda Roy - AIR 1996 SC 1504
" This Court has observed that although in the case of a sale of immovable
property time is not of the essence of the contract, it has to be ascertained
whether under the terms of the contract, when the parties named a specific
time within with completion was to take place really and in substance it was
intended that it should be completed within a reasonable time. It observed
that the specific performance of a contract will ordinarily be granted not
withstanding 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 the time was not of the essence of the contract. But 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 of the contract so warrant.
Dipnarain Sinha and another v. Dinanath Singh and other AIR 1981 PAT 69
Even where the time is not of the essence of contract, the court may infer that
in the circumstances of the case it has to be performed within a reasonable
time, and it will depend upon the intention of the parties which has to be
ascertained (1) from the expressed stipulation of the contract; (2) from the
nature of the property; and (3) from the surrounding circumstances.
Bishambhar Nath Agarwal v. Kishan Chand AIR 1990 All 65

If any agreement states that a particular act relating to the furtherance of the
contract was to be done in a particular manner; then it should be done in that
manner and it is not open to the concerned parties to chalk out his own
manner of performing his part of contract
Trailakyanath Maity v. Provabati Santra AIR 1974 Cal 261

Now, whether or not the time is the essence of the contract must depend on the facts
and circumstances of each case having regard to the provisions of Section 25 of the
Indian Contract Act. It is well-established that intention of the parties together with the
surrounding circumstances has got to be looked into to ascertain whether the parties
intended that in the agreement for sale in question in a given case the time would be
essence of the contract.
Orissa Textile Mills Ltd., and another v. Ganesh Das Ramkishun AIR 1961 Pat 107
Time is always considered of the essence of the contract in the following cases :
(1) where the parties have expressly agreed to treat it as of the essence of the
contract;
(2) where delay operates as an injury; and,
(3) where the nature and necessity of the contract require it to be so
construed. Where time is of the essence of the contract and is extended, the
extended date is also of the essence of the contract.
Bibi Anwarunisa v. Daulat Rai and another (AIR 1988 Pat 229)
If the plaintiff fails to perform his part of the contract within the stipulated
period, he cannot come forward to seek relief under the plea that time should
not be regarded as essence of the contract
Sat Parkash L. Tara Chand and another v. Dr. Bodh Raj L. Bhagwan Das Khatri
and other AIR 1958 PJ 111
Time will be of the essence of the contract if it is so provided in the contract or
if one of the parties after unreasonable delay on the part of the other party
gives a reasonable notice to the other party making time as of the essence of
the contract. If none of the two has happened, reasonable time will be deemed
to be the time which will be of the essence of the contract. The contention that
the only modes in which the time can be made of the essence of the contract
are by express provision in the contract or by notice by one of the parties is not
correct. The law engrafts on the contract a condition that reasonable time, in
the absence of any specific time provided in the contract, will be of the essence
of the contract and if the contract is not performed within that reasonable time
by any of the parties, the said party will be deemed to be guilty of breach of
duty or breach of contract. Case law ref.
Lombard North Central PLC v. Butterworth (1987) 1 QB 527

“It is possible by express provision in the contract to make a term a condition,
even if it would not be so in the absence of such a provision. A stipulation that
time is of the essence, in relation to a particular contractual term, denotes that
timely performance is a condition of the contract. The consequence is that
delay in performance is treated as going to the root of the contract, without
regard to the magnitude of the breach. It follows that where a promisor fails to
give timely performance of an obligation in respect of which time is expressly
stated to be of the essence, the injured party may elect to terminate and
recover damages in respect of the promisor’s outstanding obligations, without
regard to the magnitude of the breach”
Mohd. Abdul Razak v. B. Venkatesh AIR 2006 AP 300

If a plaintiff is negligent and dilatory in carrying out his part of the contract for
sale of immovable property, the plaintiff cannot get his contract specifically
performed.
It is settled proposition of law that where time is of the essence of the contract,
and the plaintiff has failed to perform his part of the contract within the
stipulated time, specific performance can be refused.
Tandra Venkata Subrahmanayam v. Vegesana Viswanadharaju and another

AIR 1968 AP 190
According to Section 55 of the Contract Act, it is no doubt true that in case the
party makes time the essence of contract and if the contract is not performed
by the other side, the contract becomes voidable. It must however be
remembered that the only right which the party gets in such a case is to avoid
the contract. The contract does not automatically get determined. He has to
further expressly or in unambiguous words determine the contract under
Section 64 of the Contract Act.
Dutta Seethamahalakshmamma (deceased by LRs) and others v. Yanamadala

Balaramaiah and another AIR 2003 AP 430
Time was of essence because there was a forfeiture clause and remained so
even when the buyer defaulted and made first payment after expiry of time
which was accepted under assurance that the balance would be paid shortly.
Bal Saroop Daulat Ram v Lakhbir Singh Kirpal Singh AIR 1964 Punj 375
Where a party to contract has unduly delayed performance beyond the given
time, the other party may give notice making time of the essence, but then this
is not the only way, for, a contract may clearly show at its inception that time
was of the essence.
Titanium tentalum products vs Shriram Alkali & Chemivals (2006) 3 RAJ 253
Time is always considered essence of the contract in the following cases-
1) Where the parties have expressly stipulated in their contract that the
time fixed for performance must be exactly compiled with;
2) Where the circumstances of the contract or the nature of the subject-
matter indicate that the fixed date must be exactly compiled with; and
3) Where time was not originally of the essence of the contract, but one
party had been guilty of undue delay, the other party may give notice
requiring contract to be performed within a reasonable time and what is
reasonable time is dependent on the nature of the transaction and on
proper reading of the contract in its entirety.
Firm Ramdhan Kedarmal

v.
Firm Tolla Trading Co
Firm Ramdhan Kedarmal v. Firm Tolla Trading Co AIR 1959 RAJ 264

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Arguments in favour of defendant (MR S)

K.S. Vidyanadam v. Vairavan 1997 AIR SCW 956

Bishambhar Nath Agarwal v. Kishan Chand AIR 1990 All 65

Trailakyanath Maity v. Provabati Santra AIR 1974 Cal 261

Lombard North Central PLC v. Butterworth (1987) 1 QB 527

Mohd. Abdul Razak v. B. Venkatesh AIR 2006 AP 300

Tandra Venkata Subrahmanayam v. Vegesana Viswanadharaju and another

Dutta Seethamahalakshmamma (deceased by LRs) and others v. Yanamadala

Firm Ramdhan Kedarmal

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