JUDGMENT N.N. Mithal, J. - A suit for specific performance of an agreement has been decreed against the defendant-appellant. It was alleged by the plaintiffs that on 20th August, 1974, the defendant had executed an agreement for sale of his land for a sum of Rs. 3500/- out of which Rs. 3000/- was paid at the time of executing the agreement. For the remaining sum of Rs. 500/- it was agreed that it will be paid when the registration of the sale deed takes place. Since the registration of documents had been suspended under a notification issued by the Government, the parties had agreed that on resumption of registration, within a period of three months, the sale deed would be executed. 2. The suit was contented by the defendant mainly on the ground that no agreement as setup by the plaintiffs was executed and alternatively it was pleaded that time was of the essence of the contract and since no sale deed had been got executed within three months of the resumption of registration, the suit was not maintainable. 3. On the evidence of the parties, the trial court held that the agreement had been executed by the defendant but it decreed the suit only for the refund of the advance money paid by the plaintiffs. The relief of specific performance was not decreed. Both the parties went in appeal. The defendants' appeal was dismissed while that of the plaintiffs was allowed and the suit for specific performance of the contract had also been decreed. Aggrieved by the decision, the defendant has come in Second Appeal before this court. 4. Learned counsel for the appellant has tried to assail the findings of the courts below about the execution of the agreement. However, he has not been able to show me any cogent reason for interfering in the concurrent finding of fact recorded by the courts in this respect. A faint effort was made to urge that the expert's report has not been properly considered but I do not find any substance in the same. It is therefore, held that the agreement had been executed by the defendant-appellant as alleged by the plaintiffs. 5. A faint effort was made to urge that the expert's report has not been properly considered but I do not find any substance in the same. It is therefore, held that the agreement had been executed by the defendant-appellant as alleged by the plaintiffs. 5. The second and a more substantial question urged before me was that according to the terms of the agreement, time was of the essence of the contract and since the plaintiffs did not get the sale deed executed within time, no decree for specific performance could have been granted. According to clause 1 of the agreement, it is recognised that registration had been suspended at that time and, therefore, only when the registration of document is resumed, the sale deed will be got executed within three months. According to clause 2 if the defendant failed to execute the sale deed within three months as aforesaid, then the plaintiffs would have a right to enforce its registration with the aid of the court. The third clause, however, lays down that if the plaintiffs failed to have the sale deed executed within three months, the defendant will become entitled to forfeit the amount of advance or earnest money paid. 6. On a consideration of these clauses, we have to determine whether time was of essence of contract. In this connection, reference may be made to the case Gomathinayagam Pillai and others v. Palaniswami Nadar, AIR 1967 SC 868 in paragraph 4 of which the Supreme Court observed that intention to make time of the essence, if expressed in writing, must be in language which is unmistakable; it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. 7. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. 7. In the aforesaid case, emphasis has been laid down by the Supreme Court on the express terms of the contract and also on the surrounding circumstances. In this case, the defendant did not press any issue on the question of surrounding circumstances or about time being of essence of the contract in the trial court. However, the plea was allowed to be raised in the lower appellate court. However, it is evident that the parties did not lead any evidence about the surrounding circumstances and, therefore, the only material left for consideration is the agreement itself. According to the Supreme Court decision referred to above, the terms of contract must unmistakably indicate that time was of essence of the contract and mere existence of a clause imposing penalty can not be taken as sufficient ground for holding that time was of essence. 8. A consideration of clause 2 of the agreement referred to earlier would show that right to secure specific performance would arise in favour of the plaintiffs only when the defendant refused to execute the sale deed within 3 months of the resumption of registration. The plaintiffs could, therefore, wait till the last day of three months in the hope that the defendant would execute the sale deed. Thereafter the law of limitation provides three years time for the plaintiff to bring a suit for seeking enforcement of the contract. Clause 3 also on a closer scrutiny merely entitled the defendant to forfeit the advance or earnest money paid under the agreement on plaintiffs' failure to get the agreement executed. A right to forfeit does not necessarily mean that automatically on the expiry of three months, the money shall stand forfeited. Some act by the defendant was required to indicate to the plaintiffs his intention to forfeit the amount. Thus a reading of the two clauses would indicate that the time limit of three months was not a strict line to be drawn between the enforcibility of the agreement and its becoming unenforcible. Some act by the defendant was required to indicate to the plaintiffs his intention to forfeit the amount. Thus a reading of the two clauses would indicate that the time limit of three months was not a strict line to be drawn between the enforcibility of the agreement and its becoming unenforcible. In these circumstances, it is difficult to say that time was of essence of the contract and the plaintiffs should be non-suited on the ground. 9. It was lastly urged that the trial court had exercised discretion in not awarding decree for specific performance but that discretion has been interfered with by the lower appellate court without assigning any reason for it. The argument would have been justified if the trial court had also given some reason for depriving the plaintiff of the relief of specific performance. The fact that the plaintiffs had already parted with Rs. 3000/- out of the total sum of Rs. 3500/- coupled with the circumstance that the defendant took up a wrong plea that he had not executed the agreement at all are sufficient reasons for exercising discretion against the defendant. Even though the lower appellate court has not assigned any reason for interfering with the discretion exercised by the trial court, yet, in my opinion, of the whole, the decision cannot be assailed on this ground for the reason that I have disclosing above. 10. In the result, the appeal fails and it is accordingly dismissed. The parties are, however, left to bear their own costs in this appeal.