DIWAN CHAND Vs. RAJENDRA SINGH
HIGH COURT OF UTTARAKHAND
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(1.) The respondent/plaintiff had filed a suit for specific performance on the basis of the fact that an agreement of sale was executed between the plaintiff and the defendant on 14.12.1992. As per the agreement itself, the sale deed was to be executed within one year i.e. by 13.12.1993. The total amount was Rs. 1,05,000/- for the immovable property, out of which Rs. 1,00,000/- was given for the agreement of sale and the remaining Rs. 5,000/- was to be given at the time of execution of the sale deed. The time, which was for one year, was extended once on 13.12.1993 to 21.12.1993 and thereafter on 21.12.1993 to 05.02.1994 and again on 05.02.1994 to 11.04.1994. The plaintiff/respondent went for the execution of the sale deed, but defendant never turned up. He gave the remaining money to the defendant, however, he refused to get the sale deed executed in his favour. Hence, the suit for specific performance was filed. The trial court while deciding the matter has held that the plaintiff was always ready and willing to fulfill his part of contract, but the delay and the default has been done on the part of the defendant. Moreover, time is not the essence of the contract for the reason that both the parties were extending the time with mutual consent. Therefore, the suit was decreed and the judgment of the lower court has been confirmed by the lower appellate court.
(2.) Now the appellant has filed the present second appeal wherein he has framed several questions of law, but he has relied primarily on two substantial question of law, which reads as follows:-
1. Whether the trial court and the lower appellate court have erred in law as well as on fact on coming to the conclusion that time was not an essence in the contract
2. Whether the registered agreement can be altered on a mere endorsement of the two parties or whether it can be done way of registered agreement
(3.) A clear finding has been given by the trial court as well as by the appellate court on these points. As far as the fact that the time is not an essence is absolutely clear not only from the agreement of the contract but also from the conduct of the parties. As far as change of the condition i.e. extension of time is concerned it would not amount to change in condition as already held by the trial court as it is merely an extension of time.;
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