Salil Kumar Datta, J.
1. This is an appeal against a judgment and decree of reversal. The plaintiff instituted the suit on April 11,1968 alleging that her husband required a sum of Rs. 4,500 at the material time and to obtain the amount she entered into a contract of loan with the defendant for the said amount against conveyance to him of two properties one for Rs. 1,000 and the other for Rs. 3,500 on condition that if the amounts were repaid within Chaitra 1374 B. S. the defendant would reconvey the properties to her Accordingly the plaintiff executed a kobala on Magh 18, 1373 B. S. February 1, 1967, conveying one of the properties to him for Rs. 1,000. There was also another kobala whereby the plaintiff conveyed other property to the defendant for Rs. 3,500. On the same day there were two agreements executed by the defendant and duly registered whereby the defendant agreed to reconvey the properties to her under terms stated above. The plaintiff's case is that she tendered the amount of Rs. 1,000 repeatedly during Chaitra 1374 B. S. but the defendant avoided and refused acceptance of the same, contrary to the terms of the contract. In this state of affairs the suit was instituted even prior to the expiry of Chaitra 1374 B. S. for a decree for specific performance of the contract by the defendant as agreed and for execution of the kobala in her favour in respect of the property comprised in her kobala for Rs. 1,000 as aforesaid as she was and had been always ready to perform her part of the agreement.
2. The suit was contested by the defendant by filing a written statement wherein the allegations of tender of money were denied and it was contended that the plaintiff not having performed her part of the contract was not entitled to enforce the contract.
3. The learned Munsif on a trial of evidence held that the plaintiff failed to prove that she ever performed her part of the contract or was ready for performance within the stipulated period in terms of the agreement. The Court further observed that the plaintiff failed to deposit the amount in court even as per terms of the said agreement. It will appear from the record that on April 25, 1968 the plaintiff filed an application for exempting her from depositing the amount which prayer was rejected. Thereafter on the same day she filed another application for deposit of the amount within a month on the ground that the amount was kept in deposit with her uncle-in-law who had gone abroad?) This prayer was allowed. On May 21,1968 she made an application for exempting her from depositing the money on the ground that the amount was kept in deposit with her uncle-in-law who had gone on pilgrimage and there was likelihood of inordinate delay in his return. This prayer was allowed on at the risk of the plaintiff. It appears that on December 23, 1968 the Court fixed January 7, 1969 for deposit of consideration.
4. On 7th January, 1969 she filed another application asking for further time for depositing the money as her husband being ill could not attend the court and the court allowed time till January 27. 1969 for deposit of the amount when it appears the amount was deposited.
5. The learned Munsif was in opinion that as time was the essence of the contract the plaintiff failed to perform her part of the contract within the stipulated period, her case of tender being disbelieved and accordingly she could not compel the defendant for execution of the deed of conveyance. The suit accordingly was dismissed.
6. On appeal it was noticed by the appellate court that, under the agreement, reconveyance was fixed for performance within Chaitra 1374 B. S. but this by itself did not conclusively prove that time was the essence of the contract. The learned Judge held that mere presence of the forfeiture clause was not indicative of the terms that time was the essence of the contract and there was no notice by the defendant expressing his intention to cancel the contract as required under section 55 of the Contract Act. The appellate court further found that there was sufficient evidence about the tender of money in Chaitra 27, 1374 B. S. About the delay in deposit of the consideration morey in court which was more than 8 months and not one month as held by the appellate Court, it was also held that there was no express condition that the amount should be deposited along with the plaint or institution of the suit. For all these reasons the appeal was allowed and plaintiff's suit was decreed. The present appeal is against this decision.
7. Mr Kishore Mukherjee appearing for the appellant contended that the learned Judge on interpretation of the agreement should have held that time was the essence of the contract and the suit itself was premature as the month of Chaitra 1374 B. S. did not pass when the suit was filed. He further submitted that there was no tender of the amountas the relevant evidence was not considered by the learned Judge, who instead relied on his imagination instead of factsas evidenced by the defendant.
8. The finding as to tender being a finding on fact, without any basic infirmity as here, cannot be interfered with in this appeal.
9. The fundamental question requiring consideration is whether time was the essence of the contract for reconveyance. According to Mr. Mukherjee, learned counsel for the appellant, time was the essence of the contract and there being no tender of money according to the agreement as falsely alleged, the plaintiff was nor entitled to enforce the agreement. Mr. Chatterjee learned Counsel appearing for the respondent, submitted that time was not essence of the contract as will appear from the contract itself and in fact it was not so pleaded in the written statement even. Further, the appellate court's finding on tender, being one of fact, could not be assailed in this appeal.
10. The Supreme Court in Govind Prasad v. Hari Dutt, : 2SCR877 observed;
'It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulations as to time the essence of the contract. When a contract relates to the sale of immovable property it will normally be presumed that the time is not the essence of the contract (Gomathinayagam Pillai v. Palaniswami, : 1SCR227 ).........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'.
An examination of the agreement for sale shows that a time limit was fixed for completion of the contract and there was a further stipulation that on the failure of the vendor to pay or to tender the amount, it would not be open to her ot her heirs to enforce the performance of ithe contract. But mere presence of forfeiture clause without more was not indicative of the condition that time was the essence of the contract as was held in Mahadeo Prosad v. Narain Chandra, (1920) 24 CWN 330. Even in the written statement as in his evidence the defendant did not state that time was the essence of the contract. In view of the position in law and in the attending circum-stances, it is not possible to hold that time was the essence of the contract.
11. The defendant could have avoided the contract by notice if there was failure to perform her part of the contract by the plaintiff within a reasonable time even if there was no tender of the consideration money within Chaitra 1374 B. S. in a contract where as we have seen time was not the essence of such con-tract. There was no such avoidance in this case.
12. It has been held in Ardeshir H Mama v. Flora Sassoon, AIR 1928 PC 208 (216) and approved in Gomathinayagam Pillai v. Palaniswami Nadar, : 1SCR227 the plaintiff in a suit for specific performance of an agreement must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of contract and the date of hearing of the suit. The plaintiff in this case was not so ready after the institution of the suit till January 27, 1969 when the consideration money was deposited which she could not do earlier obviously as the amount was not within her control according to her case. Even so in absence of avoidance of the con-tract by the defendant till at least the filing of the written statements on April 1, 1969, the plaintiff, it appears, was entitled to deposit the amount of consideration in court to indicate her readiness to perform her part of the contract provided such deposit was within the period of limitation which is three years from the date fixed for performance.
13. It is unfortunate that the amount of Rs. 1000/- has been lying in court since January 1969 without its investment and for this both parties are to blame themselves.
14. In view of the position in law andin the attending circumstances, the appeal fails and is dismissed, the parties however will bear their own costs throughout.