1. This second appeal arises out of a suit for specific performance by the plaintiff. The first point urged in this second appeal is that the lower Court was wrong in finding that there was default on the part of the plaintiff. The appellant's contention is that he was ready and willing to perform his part of the contract and that the default was on the part of the 1st defendant. The contract was entered into, on the 20th August, 1919, and an advance of Rs. 100 was paid on that day, the contract was that the balance was to be paid by 31st August, 1919. On the 30th August, 1919, plaintiff sent a registered notice through his vakil to the defendant imposing certain conditions, which were not in the contract of sale Exhibit A. In that, be said that the property should be divided by metes and bounds before the expiry of 24 hours from that date. The notice was sent on the 30th August, 1919, and it was not humanly possible to have the property divided by metes and bounds, within 24 hours from the receipt of the notice and that before the end of August, 1919.
2. The object of the plaintiff, was evidently to got out of the contract by imposing condition not possible to comply with, and that was why he insisted upon the 1st defendant doing something, which he was not only not bound to do, but which was not possible to do within the time allowed to him. Plaintiff knew at the time he entered into the agreement for sale that the 1st defendant agreed to sell only his share of the property and that he and the 2nd defendant were jointly interested in the property and that the property agreed to be sold was in possession of a tenant. That being so it is quite clear that the object of the plaintiff in imposing an impossible condition was to back out of the contract. The Subordinate Judge has given reasons for coming to that conclusion and I do not think that he has arrived at a wrong conclusion on that point.
3. It is not urged on the authority of the decision of the Privy Council in Jamshed Khodaram v. Burjorji Dhunjibhai A.I.R. 1915 P.C. 83 that time was not of the essence of contract and the plaintiff was therefore entitled to succeed in this action. No doubt in cases of contracts of sale of land, time as a rule is not of the essence of the contract; but it is open to the parties to make time of the essence of the contract. As observed by Lord Haldane in delivering the judgment of their Lordships of the Privy Council:
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 unmistakeable.
4. Here, as found by the learned Subordinate Judge, the parties did attach importance to the completion of the contract on the 31st August, 1919, and that is the reason why a penalty of Rs. 100 was fixed for non-performance. Granting for argument's sake that the 1st defendant was not entitled to consider the contract as broken, on account of the plaintiff's failure to tender the amount of Rs. 500, on or before the 31st, Exhibit C clearly shows that the 1st defendant was willing to perform his part of the contract...provided the plaintiff was willing to perform his part. He gave him reasonable time, as is seen from Exhibit C, a registered letter, dated 1st September, 1919, and the plaintiff did not choose to avail himself of that opportunity.
5. In these circumstances, I think the learned Judge was perfectly right in holding that the default lay on the part of the plaintiff and therefore be is not entitled to any remedy.
6. The second appeal fails and is dismissed with costs.