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6. Though a plea was raised by the plaintiff that the amount is payable only after the defendant discharged the instalments to the building society, the counsel for plaintiff did not pursue this, in view of the clear recital; in the agreement as no such condition is found. Both counsel concentrated, oh the question whether time is the essence of the contract, or if it is made, can it be said that the suit for specific performance cannot be resisted for want of separate notice terminating the contract for non-compliance with the condition of making the time as the essence of the contract. It was further urged by the learned counsel for the plaintiff that the 1st defendant himself voluntarily extended the time under Ex. B-8 and he cannot contend that the time continues to be of the essence of the contract. Hence the following questions arise for consideration.

12. Now on the second question the learned counsel for the plaintiff argued that no notice is issued terminating the contract for non-compliance of Ex. B-8 and hence on the strength of the judgment of this Court in Tandra Venkata Subhramanyam v. Vegesana Viswanadharaj, the contract cannot be said to have been terminated and the defendant cannot resist the suit. This is the view taken by the trial Court. In fact the trial Court on the strength of this judgment held that the plaintiff has to issue further notice terminating the contract as per the above decision. I am clearly of the opinion that the trial Court has mis-read the above judgment and that is not the true effect of the judgment. In that case the contention was that due to the default on the part of the purchaser the contract was terminated and hence the suit filed by the purchaser is not maintainable as there is no subsisting agreement. In answering that question the Court had to examine two questions :

18. On the third question I must say that it is not necessary in all cases where a person who has got option to avoid the contract should issue a notice under Section 64 terminating the contract. If no notice is issued the contract may be treated as alive. But however, a person who committed default of non-compliance cannot seek the relief of specific performance when there is undue delay on his part once time is made the essence of the contract. Hence I hold irrespective of the validity of the rescission of the contract the Court can examine the question whether the plaintiff is entitled to the relief of specific performance while he committed default when the time is made the essence of the contract.

21. Let us apply the above legal position to the facts of this case.

Under Ex. A4 when the second payment is made both parties made endorsements. A close reading of the endorsements clearly demonstrate that time is made the essence of the contract. Hence irrespective of the fact whether the 1st defendant exercised the right of rescission or not, the plaintiff cannot obtain the relief of specific performance when he is grossly negligent in complying with the terms of the contract till he issues the notice on 3-7-1980. Secondly the notice issued under Ex. B4 clearly constitutes termination of the contract for non-compliance. The learned counsel for the appellant argued that this cannot be given effect to because even on the defendant's own saying he has voluntarily extended the time under Ex. B8 and hence he can no longer rely on it. The plaintiff cannot have the advantage both the ways. He cannot have the cake and eat it too. The plaintiff denied categorically that he never received Ex. B8. The trial Court held that the receipt of Ex. B8 is not properly proved but proceeded to examine the case on the basis that Ex.B8 was received. However, it overruled the defence on the sole ground that he has not issued a separate notice terminating the contract This I have already held as wholly an incorrect view. I have held that simultaneous notice making the time as essence of the contract and terminating the same in the event of default is valid. I have already held that even assuming that Ex. B8 does not operate as rescission of the contract within the meaning of Section 64, the plaintiff is not entitled to the relief as the time is made essence of the contract and he is grossly and deliberately guilty of non-compliance and hence he is not entitled to the relief of specific performance.