Where no time is specified: Where by the contract, a promisor is to perform his promise without application by the promises, and no time for performance is specified, the engagement must be performed within a reasonable time. What is the ‘reasonable time’ is, in each particular case, a question of act (Sec46). Reasonable time depends on the special circumstances of the case, the usage of the business and the facts and the intention of the parties at the time when the contract was entered into.
Where time is specified: When a promise is to be performed on a certain day and the promisor has undertaken to perform it without application by the promisee, the promisor may perform it at any time during the usual hours of business on such day and at the place at which the promise ought to be performance (Sec 47)
‘A’ promises to deliver goods at B’s warehouse on 1st February. On that day, A brings the goods to B’s warehouse, but after the usual hours for closing it and they are not received. A has not performed his promise.
In Startups v. Macdonald: S agreed to sell 10 tons of oil to M and to deliver it to him within the last 14 days of March. Delivery was tendered at 8:30 pm on 31st March. M refused to accept. It was held that the tender of the oil was in the circumstances equivalent to performance and that S was entitled to recover damages for non-acceptance.
In contract of immovable property, generally there is no presumption of time being the essence of the contract. The Court may refer to (1) from the express terms of contract, (2) from the nature of the property and (3) from the surrounding circumstances like object of making contract, even if time is not the essence of contract.
On application by promisee for performance: When a promise is to be performed on a certain day and promisor has not undertaken to perform it without application by the pormisee, it is the duty of the promisee to apply for performance at a proper place and within the usual hours of business (Sec48). As to what is proper time and place, in each particular case, is a question of fact.
Without applications by promisee: When a promise is to be performed without application by the promisee, and no place is fixed for the performance of it, it is duty of the promisor to apply to the promisee to appoint reasonable place for the performance of the promise and to perform it at such place (Sec 49).
A undertakes to deliver a thousand maunds of jute to B on a fixed day. A must tell to B to appoint a reasonable place for the purpose of receiving it and must deliver it to him at such place.
Place to be fixed should be reasonable. Place for performance applies both to delivery of goods as well as payment of money.
Performance sanctioned by promisee – Manner of performance:
The performance of any promisee may be in any manner, or at any time which the promisee prescribes or sanctions (Sec 50).
(a) B owes A Rs 2,000. A desires B to pay the amount to A’s account with C a banker. B who also banks with C, orders the amount to be transferred from his account to A’s credit, and this is done by C. Afterwards and before A knows of the transfer, C fails. There has been a good payment by B.
(b) A and B are mutually indebted. A and B settle an account by setting off one item against another, and B pays A the balance found to be due from him upon such settlement. This amounts to a payment A and B, respectively of the sums which they owed to each other.
(c) A owes B Rs 2,000. B accepts some of A’s goods in reduction of the debt. The delivery of the goods operates as a part payment.
(d) A a creditor requests for the payment and B the debtor posts the cheques to A. The debtor has performed his obligation in the manner prescribed and sanctioned by the creditor and thereby discharges the contract by such performances.