1. The conditions as to the time at or before which the work was to be completed are as follows:—
“The whole work will be completed in 4 months from the date of getting permission in writing from Mr. D.W Roberts.
A fine of Rs. 5 per day will be exacted for every day after that date that the work is not completed within the above noted time.”
2. It seems to me that time was not of the essence of the contract in this case.
3. The very fact that a penalty was stipulated for in case of failure to complete the work within the stipulated time indicates that in case of such failure it, was not the avoidance of the contract by the defendant that was contemplated but acceptance of performance after the stipulated time, subject to payment of damages which were fixed. The case in my opinion falls within paragraph 2 of Section 55 of the Contract Act and the only question is, what is the compensation to which the defendant is entitled for the loss occasioned by the plaintiffs failure to complete the work within the stipulated time. The lower appellate Court seems to have considered it unnecessary to go into this question as in its opinion the 3rd paragraph of S. 55 applied. As I have held otherwise I remand the case to the lower appellate Court for a decision as to the compensation to be awarded. I note that both the lower Courts seem to be in error in thinking that no part of issue No. 2 was referred to the arbitrator. The Court fee paid on the memorandum of appeal in this Court will be Refunded. Other costs will abide that result.