AI Structured Summary
Not yet generated for this judgment
Judgment
The Subordinate Judge has not found whether the sum payable was actually tendered in time. He is directed to return a finding on this point within six weeks from the date of the receipt of the record in these cases and seven days are allowed to the parties for filing objections to the findings after notice of the return of the same shall have been posted up in this Court.
[The Subordinate Judge returned a finding that the tender pleaded was not true.
On return of the finding the cases came again before the Bench as constituted above.]
JUDGMENT
The Subordinate Judge has now found against the alleged tender by appellant on November 30th and it has not been suggested that there was a tender on any other day before a petition was filed on. December 2nd that the Court should allow the amount to be deposited in Court. We think that time in this case was of the essence of the contract and that the question of relieving against forfeitures, which arises when a penalty is provided for nonperformance as it did in Nagappa v. Venkat Rao [1900] 24 Mad. 265 and Ana Sheik Mohidin Tharagan v. Vadivalagianambai Pillai [1914] M.W.N. 92 does not arise here.
The distinction between the two classes of cases is made clear in the judgment of Mookerjee, Ag. C.J. in Kandarpa v. Bannari [1921] Cri.L.J. 244.
The interval between the date for payment of money and the date for taking possession of lands made the case in Supdu Dhodu v. Maihavra Jivram [1920] 44 B. 544 one where time was not of the essence of contract.
In the present case neither the appellant (1st defendant) nor the 5th defendant had any absolute title to the land apart from the compromise and it was expressly stipulated in the last paragraph of the compromise decree, that in default of payment within the time fixed, the alienation by the 1st defendant in favour of the 5th defendant should be null and void.
The Lower Appellate Court is right and the Civil Miscellaneous Second Appeal is dismissed with costs and the Civil Revision Petition is dismissed.