THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL NO.1076 OF 2011 JUDGMENT: The defendants are the appellants. The suit filed by the first respondent (hereafter, the plaintiff) being O.S.No.155 of 1998 on the file of the Court of I Additional Senior Civil Judge, Kakinada, for specific performance of agreement of sale was dismissed on 07.09.2004. He then filed appeal being A.S.No.82 of 2006 on the file of the VII Additional District and Sessions Judge, Kakinada. By the impugned judgment dated 30.05.2011, learned Additional District Judge allowed the appeal. Hence, the Second Appeal. The plaintiff pleaded as follows. The first defendant (Karri Subbayamma) and the second respondent herein (the second defendant) executed agreement of sale dated 24.02.1992 agreeing to sell plaint ‘A’ schedule property admeasuring 507.63 square yards in plot No.8 in Vakalapudi Panchayathi lay out No.70/85 and plaint ‘B’ schedule property admeasuring 520.23 square yards in plot No.8 in the same lay out for a sale consideration of Rs.1,43,920/-; the plaintiff paid advance amount of Rs.90,000/- by way of cheque agreeing to pay balance of Rs.53,920/- on or before the registration; the second defendant was represented by his grand father namely Karri Veera Reddy; and on 02.03.1992, after accepting Rs.5,000/-, vendors extended the time for execution of sale deed up to 30.06.1992. The possession was also delivered to the plaintiff. Though he paid the entire amount including registration charges on 06.11.1995 and the second defendant, who became major and executed three different sale deeds in favour of three nominees of the plaintiff, the first defendant did not execute the sale deed necessitating filing of the suit. Defendants 1 and 2 took the plea that the suit agreement stood cancelled as the plaintiff failed to pay the balance amount even though time was extended up to 30.06.1992 and that the defendant conveyed plaint ‘B’ schedule property to the nominees of the plaintiff but in respect of plaint ‘A’ schedule property, the balance sale consideration was not paid. In view of the contentious points, the trial Court framed six issues. The plaintiff deposed as P.W.1 and marked Exs.A1 to A6. The defendants examined two witnesses, D.W.2 being the second defendant and no documents were marked. After considering the issues, the trial Court dismissed the suit observing that time being the essence of the contract, the agreement stood cancelled by efflux of time and the suit is being barred by limitation. While the appeal was pending the first defendant, Karri Subbayamma died and her legal representatives were brought on record. The appellate Court on reconsidering the oral and documentary evidence recorded a finding that the second defendant having executed the sale deeds in favour of the nominees of the plaintiff, the question of limitation does not arise and that specific performance cannot be denied on the plea that the time is essence of contract. In this appeal, the counsel for the appellants (legal representatives of the first defendant) would submit that the findings recorded by the first appellate Court are perverse; the suit is barred by limitation as the endorsement extending the time for performing the vendees’ contract was not accepted or endorsed by the second defendant and therefore it is not binding on him. Nextly, he would submit that the endorsement made by the first defendant would not bind the second defendant and therefore on the plea of limitation, the first appellate Court ought to have held in favour of the defendants. “It is a well accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract” (See Chand Rani v. Kamal Rani[1]). When such a plea is taken by the opposing defendants, they have to show by cogent and convincing evidence. Though Ex.A2- agreement executed by Karri Subbayamma and Karri Veera Reddy on behalf of the second defendant prescribed the time for execution of the sale deed and for performing the mutual obligations, by extending time under the endorsement-Ex.A5, the parties are deemed to have waived the clause of time being essence of the contract. The plea that endorsement was not binding on the second defendant cannot be accepted. Indeed there is no dispute that the second defendant became major and executed sale deeds in favour of the nominees of the plaintiff in respect of plaint ‘B’ schedule properties. From the totality of circumstances, it can be probabilised that it was Karri Subbayamma, the grand mother of the second defendant, who is dealing with the property and the defendant took inconsistent pleas so as to deny the relief to the plaintiff. The first appellate Court, in the considered opinion of this Court, appreciated the questions of fact in proper perspective and recorded findings. This Court does not find any substantial question of law. The Second Appeal is, therefore, dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) 30th December 2011 RRB [1] AIR 1993 SC 1742