1. We think that under the circumstances, this is a case in which the plaintiff’s conduct practically amounted to a waiver by acquiescence of performance of the contract to sell. Admittedly there was an oral understanding that the sale-deed should be executed by April 30th, 1908. On May 1st the plaintiff wrote that the Sale-price was ready and asked 1st defendant to come to Dharapuram where plaintiff lived, execute the sale-deed and receive the money. On May 7th, 1st defendant having come to Dharapuram gave notice to the plaintiff that he had been waiting from April 17th to 21st and from May 5tb to 7th and that he would give him time till the 10th to conclude the sale. The plaintiff received this notice on the 8th but did nothing towards performing his part of the contract. On the 3th, the 1st defendant intimated to the plaintiff that the contract had been put an end to Nearly three years afterwards, viz., on April 29fch, 1911, the plaintiff instituted this suit to enforce specific performance. The facts thus resemble the facts in Nawab Begam v. A.H. Creet 27 A. 678 : A. W. N. (1905) 147 : 2 A. L.J. 405. where it was held that when plaintiffs had notice that the contract was at an end and yet did nothing till nearly three years later when they filed a suit for enforcing performance, the Court had sufficient reason in the exercise of its discretion to refuse relief. In Jamshed Khodaram Irani v. Burijurji Dhunjibhai 32 Ind Cas. 24 : 40 B. 289: 30 M. L.J. 186 : 3 L. W. 239 : 9 M.L.T. 184 : 14 A. L.J. 225 : (1916) M. W. N. 229 : 18 Bom. L.R. 163 : 23 C. L.J. 358 : 20 C.W.N. 44, (P. C.)., the Privy Council observe that equity will not assist when there has been undue delay on the part of one party to the contract and the other has given him reasonable notice that he must complete within a definite time. We are asked to say that the time from May 8th to the 10th was not reasonable but seeing that on May 1st plaintiff announced that he had the money ready and seeing that the Registration Office was in the same village where plaintiff resided and whither the 1st defendant had come we are net prepared to say that he should have been given any more time.
2. Mr. Ramachandra Aiyar argued that there was no obligation on his client to produce the money until the defendant produced the sale-deed ready for registration, as this was part of the agreement but the plaint shows that the cost of the stamp was admittedly to be borne by the plaintiff and it appears from 1st defendant evidence, which has been believed by both Courts, that plaintiff had not even the money for the purchase of the stamp and it does not appear that he took any step to signify his willingness to accept the performance of the contract when performance was offered.
3. It is further contended that the Courts below were in error in dismissing the suit without finding that time was of the essence of the contract, but we do not fine there was any contention on this point in the pleadings. The parties went to trial on the footing that there had been a breach o: the contract on one side or the other and the 1st issue in the case was, therefore directed to discovering which party was responsible for non-performance.
4. Even in a case where time is not of the essence of the contract, if the vendor rescinds after the agreed time, it is, as observed by the Chief Justice in Natesa Aiyar v. Appavu Padayachi 19 Ind. Cas.462: 38 M. 178 : (1913) M. W. N. 341 : 24 M. L.J. 488 : 13 M.L.T. 391. for the purchaser to show that he was ready and willing to perform the contract within a reasonable time after the agreed date.
5. We, therefore, think that the lower Courts were justified in refusing to decree specific performance after the lapse of time that had occurred.
6. The second appeal is dismissed with costs (one set between the legal representatives of 1st defendant and the 2nd defendant and the 6th defendant).