D.B. Lal, J.
1. This second appeal is brought from the judgment of the District Judge, Simla reversing in appeal the judgment of the Sub-Judge, 1st Class, Nalagarh, as a result to which a suit for specific performance filed by Rakha Singh has been dismissed. It was stated by Rakha Singh that Chanan Ram (respondent No. 4) entered into an agreement with him on June 4, 1965 whereby Chanan Ram was willing to sell and Rakha Singh was willing to purchase 6 bighas 16 biswas land situate in village Bhogpur at the rate of Rs. 235 per bigha and the sale deed was to be executed on June 25, 1965.
After a protracted correspondence between the parties, Chanan Ram finally wrote to Rakha Singh on 20-12-1965 that the sale deed must be executed in the month of December, 1965. According to him he also sent a notice to the plaintiff on 24-12-1965 but received no reply. Thereafter on 10-1-1966 Chanan Ram executed the sale of the disputed land in favour of the respondents 1 to 3. Rakha Singh thereafter brought a suit for specific performance of contract. The suit was decreed by the trial Court. The subsequent vendees came in appeal before the District Judge and the decree of the trial Court was set aside, it was held that Rakha Singh was not ready and willing to perform his part of the contract. The suit was accordingly dismissed. Rakha Singh has now come up in second appeal
2. At the very outset, the respondents contended that the question regarding readiness and willingness on the part of Rakha Singh to perform his part of the contract was a question of fact and howsoever erroneous the finding of the District Judge may be, the same cannot be set aside in second appeal. The appellant, however, controverted by saying that the learned District Judge drew up a wrong inference from the facts and circumstances made out and as the plea was a primary one and the decision depended upon it, a wrong inference thus drawn upon facts established will give rise to a question of law which can be entered into in second appeal. Being governed by this principle, I decided to consider the evidence de novo and find out if really a wrong inference has been drawn by the District Judge,
3. The central point argued by the learned counsel on behalf of the appellant was that a notice repudiating the contract was not given by Chanan Ram and the reasonable opportunity was not offered to Rakha Singh to perform his part of the contract and as such a decree for specific performance must have been granted. The learned counsel further argued and rightly so, that in a contract for sale of property, ordinarily, time is not the essence of the contract unless a notice is given making it essence of the contract and unless a reasonable opportunity is offered to fulfil the contract made by the promisee. One of the essential factors in a suit for specific performance of a contract is that the plaintiff must first allege and then if the matter is traversed, prove (a) that he has performed all the conditions which under the contract he was bound to perform, and (b) that he has been ready and willing at all times from the time of the contract down to the date of suit, to perform his part of the contract. It is true that in a contract for sale and purchase of land time is not essence of contract but either party can make it so by giving notice. A similar intention may be inferred from the nature of the property, surrounding circumstances and whether commercial element is involved. Readiness and willingness to perform includes ability to perform. It is incumbent upon the buyer to satisfy the Court that he was ready and willing with the money or had the capacity to pay for the property and that he had at all events made proper and reasonable preparations and arrangements for securing the purchase money. One has then to consider the facts and circumstances arising in the case in order to arrive at a finding as to whether Rakha Singh was ready and willing to perform his part of the contract.
4. It may be stated from the correspondence that exchanged between the parties that up till 29-11-1965 (Ex. D.W. 4/16) Chanan Ram all along wanted the execution of the deed to be completed by a specified date but postponed it at the instance of Rakha Singh and thereby gave an expression to Rakha Singh that he could postpone the date even subsequently and Chanan Ram would have no objection to execute the sale even on a subsequent date. But on 29-11-1965 Chanan Ram wrote that Rakha Singh should give a definite date and in case he never intended to purchase he should make him free to sell the land to somebody else. No reply was given to this letter. Thereafter Chanan Ram sent another letter on 20-12-1965 (Ex. D.W. 4/14) wherein he wrote that he was to go to Lucknow and that the sale deed should be executed in December, 1965. Again no reply was given by Rakha Singh.
Thereafter on 5-1-196,6 Chanan Ram made an application (Ex. D.W. 4/13) to Tahsildar Nalagarh giving out all the facts and proving inability of Rakha Singh to purchase land and also submitting that he was free to sell the land to anybody he liked. Finally on 10-1-1966 he sold the land to the respondents 1 to 3. The learned counsel from all this concluded that Chanan Ram never gave a notice finally repudiating the contract. Further he was required to give a reasonable time to Rakha Singh to perform his part of the contract. This also he never did. Similarly as before Rakha Singh thought that Chanan Ram would still accommodate him and the date of execution would be postponed. For this reliance was placed on N. Palanichami Nadar v. Gomathinayagam Pillai (AIR 1966 Mad 46). In a pari materia similar situation, the Division Bench held that the equity must look not at the letter but to the substance of the transaction in ascertaining the intention of the parties to the agreement as to whether time was of essence of contract.
The conduct of the parties in the past in that case and similarly in the instant case indicate that time was intended to be extended more than once and the parties did not stick to the time so as to make it the essence of the contract. But this decision of the Division Bench of Madras was reversed by the Supreme Court when it went in appeal of which the report is Gomathinayagam Pillai v. Palaniswami Nadar, (AIR 1967 SC 868.
It was no doubt held that time was not of essence as held by the High Court but the plaintiff was not ready and willing to perform his part of the contract. On that finding the judgment was reversed and the suit was dismissed. Therefore, in the present case it may be stated that the time was not essence of the contract and that notice was not served upon Rakha Singh repudiating the contract or making time its essence and that would not ordinarily refuse Rakha Singh to claim a specific performance of the contract. Nevertheless the other condition that he was ready and willing to perform his part of the contract is not satisfied and that would not entitle him to a decree for specific performance. In that connection reference can be made to Section 16 (c) because specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. One of the essential terms of the contract was decidedly readiness and willingness on the part of Rakha Singh to pay the sale price.
5. From the correspondence which passed between the parties before 29-11-1965 it is evident (a) that Rakha Singh was postponing the sale from one date to the other, (b) that he was making an offer of paying part of sale price which he never fufilled and (c) that he was short of money and was selling land to raise money to meet the disputed sale consideration. On 19-6-1965 he asked Chanan Ram to reach on 10-7-1965 for execution of sale. On 5-7-1965 this date was postponed to 20-7-1965. On 19-7-1965 Rakha Singh again postponed the date upto the end of August On 9-8-1965 he postponed it upto 24-10-1965. On 17-9-1965 (Ex. D.W. 4/8) he promised to send a part of sale consideration and asked Chanan Ram not to insist for an early date of execution of sale deed.
On 17-10-1965 he asked Chanan Ram that he would fix a date for the execution of the sale deed. On 27-11-1965 (Ex. D.W. 4/11) he wrote that he was sending Rs. 100 (which he never did). He also mentioned that he was selling his own property and would thus be able to raise money to pay Chanan Ram. Then finally on 29-11-1965 Chanan Ram wrote that a definite date should be given, otherwise he would sell the land to somebody else. It is true that on the very date the sale deed was to be registered. Rakha Singh made an application to the Sub-Registrar that he was willing to purchase the land that the sale deed should not be registered in favour of the respondents 1 to 3. It appears from -all this that he was not ready and willing to perform his part of the contract at any relevant time. This is how the learned District Judge has concluded and I do not find that any exception can be taken to the inference deduced by him. At any rate the inference that Rakha Singh was ready and willing does not get support from his conduct.
6. It was argued on behalf of the respondents that one of the witnesses (D.W. 4) even stated that Rakha Singh had actually told Chanan Ram that he was not willing to purchase the land. A lukewarm argument was raised on behalf of the appellant that the vendor Chanan Ram did not file any written statement nor did he contest the suit. That was so because the property was sold in the names of respondents 1 to 3 and it is they who contested the suit. This fact alone will not go to prove that the appellant was ready and willing to perform his part of the 'contract.
7. In this view of the matter the learned District Judge rightly inferred that the appellant was not ready and willing to perform the essential term of the contract and as such a decree for specific performance could not be granted in his favour.
8. The appeal has no force and the same is, therefore, dismissed. However, in the special circumstances of the case, no order is made as to costs.