JUDGMENT : 1. This second appeal of the defendant arises from a suit filed by the respondent against him for the refund of Rs. 2161/9/- which he had paid to the defendant as part of the purchase price of five wagons of coal to be delivered to him at the Railway Station Shivpuri from January 1947 to 15-5-1947. The coal was not delivered and therefore the plaintiff filed this suit. The trial Court came to the conclusion that both the parties were responsible for the breach of the contract and therefore decreed the suit. The lower appellate Court took the view that the defendant alone was responsible for the breach of the contract and must return the money. There is, therefore, a finding of fact against the defendant. 2. Mr. Shiv Dayal, learned counsel for the appellant, draws my attention to a letter (Ex. D. 1) written, by the plaintiff to the defendant on 13-5-1947 (i.e., two days before the last date fixed for the fulfilment of the contract) by which the plaintiff asked the defendant not to give his coal to anybody till he received a message or a letter from him. Mr. Shiv Dayal contends that this letter conclusively shows that for the breach of the contract the plaintiff alone was responsible. It may have been true if time was of the essence of the contract. According to S. 55, Contract Act when a party to a contract promises to do a certain thing, at or before a specified time, and fails to do it at or before that time, the contract becomes voidable at the option of the promisee "If the intention of the parties was that time should be of the essence of the contract." The question whether time is or is not the essence of the contract has to be decided on the facts of each case. Their Lordships of the Judicial Committee in 'Jamshed v. Burjorji', AIR 1915 PC 83 (A), laid down the proposition that the mere fact that time is specified for the performance of a certain act is not, by itself, sufficient to prove that time is of the essence of a contract. Their Lordships of the Judicial Committee in 'Jamshed v. Burjorji', AIR 1915 PC 83 (A), laid down the proposition that the mere fact that time is specified for the performance of a certain act is not, by itself, sufficient to prove that time is of the essence of a contract. The Court has to look at the substance and not merely at the letter of the contract and ascertain whether the parties really and in substance intended more than that the act should be performed within a reasonable tame. Considering that the agreement itself fixed a long period of 4½ months (January to 15th May) for the fulfilment of the contract and considering the evidence adduced in the case I am of opinion that the fixing of the last date in the agreement does not indicate that the intention of the parties was that time should be of the essence of the contract within the meaning of S. 55, Contract Act. The only conclusion that can be drawn from the agreement and from the evidence adduced is that the parties only intended that the goods should be supplied within a reasonable time. So, in my opinion, in this view of the case much emphasis cannot be laid on Ex. D. 1 in the case. What actually happened after 13-5-1947 is material but is not clear from the record. There is no documentary evidence adduced by the parties; and on the basis of the oral evidence the conclusion arrived at by the learned trial Court was that both parties were responsible for the breach of the contract. I am disposed to agree with this finding. Inasmuch as the defendant did not supply any wagon of coal from January to 13-5-47 he cannot be absolved from the fault. In this view of the matter the advances made by the plaintiff to the defendant were clearly recoverable. 3. Mr. Shiv Dayal contended that though the sum of Rs. 2161/- was part of the purchase price yet as it was earnest money it was liable to be forfeited. The learned counsel relied upon - 'Chiranjit Singh v. Harswarup', AIR 1926 PC 1 (B) for the proposition that earnest money is part of the purchase price when the transaction goes forward; and that it is forfeited when the transaction falls through by reason of the fault or failure of the vendee. The learned counsel relied upon - 'Chiranjit Singh v. Harswarup', AIR 1926 PC 1 (B) for the proposition that earnest money is part of the purchase price when the transaction goes forward; and that it is forfeited when the transaction falls through by reason of the fault or failure of the vendee. This ruling of the Privy Council applies to a case where earnest money has been paid to the seller; and an advance can be said to be earnest money only if it is given as security for the performance of the contract but not otherwise. Whether the deposit is described as earnest money or part payment is immaterial. It must be a guarantee for the purpose of the contract which alone can be forfelted if the transaction falls through : see - 'Seetharma v. Yasikalappa', AIR 1928 Mad 117 (C); - 'Desu Rattama v. Krishna Murthi', AIR 1928 Mad 326 (D) and - 'Madan Mohan v. Jwala Prasad', AIR 1950 EP 278 (E). In - 'Krishna Chandra v. Mahmud Bepari', AIR 1936 Cal 51 (F), a plaintiff had brought a suit for the recovery of his deposit which was paid only as part payment of the price and therefore it was held by R.C. Mitter, J., that the plaintiff was entitled to recover it from the defendant, and that in spite of the breach being on his part. This ruling has been followed in - 'AIR 1950 EP 278 (E)'. 4. In the case before me the defendant did not raise the plea in the written statement that the money paid to him by the plaintiff was earnest money and was given as security for the performance of the contract or that there was an implied contract between the parties that the money paid in advance would be treated as security for the purchaser's fulfilment of the bargain and as such it would be liable to be forfeited on his default. The only plea raised by the defence was that the plaintiff was responsible for the breach and the money should be forfeited as a penalty for breach of the contract. It has been pointed out in - 'Bhal Chandra v. Mahadeo', AIR 1947 Nag 193 (G) that there is a distinction between a penalty for breach of contract and the forfeiture of deposit by way of earnest money. It has been pointed out in - 'Bhal Chandra v. Mahadeo', AIR 1947 Nag 193 (G) that there is a distinction between a penalty for breach of contract and the forfeiture of deposit by way of earnest money. The latter is a payment actually made by the vendee whereas the penalty is the compensation sought for the breach and yet to be recovered. As the present case was fought by the defendant in the Courts below on the basis that the deposit should be forfeited only as a penalty for breach of the contract and not on the basis of its forfeiture by way of earnest money, an entirely new case cannot now be allowed to be set up in second appeal. In this view of the matter the appeal fails and is dismissed with costs. Appeal dismissed.