JUDGMENT - DEO B.G., J.:-The appellant-defendant Popatlal Manishankar Pandya has challenged in this appeal a decree for specific performance of a contract dated 4th August, 1977 (Ex. 42) passed by the Civil Judge, Senior Division, Amravati on 8th January, 1982 in Special Civil Suit No. 1 of 1978. 2. The challenge mainly rests on three grounds. In the first place the learned Counsel for the appellant, who took us through the record, contended that having regard to the stipulations in the contract, the conduct of the parties and the circumstances of the case, the time was essence of the contract. In the second place, it was contended that the conduct of the respondent-plaintiff Nanalal in making a false contention as regards payment of earnest money of Rs. 2000/- on 25th November, 1977 to the appellant -defendant showed that he did not come with clean hands and thirdly, that the entire conduct of the respondent-plaintiff from the beginning of the contract till the stipulated date and even thereafter showed that he was not ready and willing to perform his part of the contract for want of sufficient funds, and, therefore, the learned trial Court was not justified in granting to him the discretionary relief of specific performance of the contract dated 4th August, 1977 (Ex. 42). 3. In order to appreciate the aforesaid contentions, it is necessary to advert to the facts of the case in some detail. The subject-matter of the litigation is the shop portion situated in front abutting the Jawahar Road in a double storeyed house standing on plots Nos. 199, 201 202 of Nazul Sheet No. 81-C and bearing Municipal No. 51 in Ward No. 42 at Amravati. The rear portion of the house is residential. The entire house is owned by the appellant-defendant Popatlal. A ready-made hosiery shop of the firm M/s. Pandya Brother, a partnership firm with its partners ad defendant Popatlal and his father Manishankar, was located in the shop i.e., the suit premises. 4. The respondent-plaintiff Nanalal owns a shop of utensils just adjacent to the defendants shop to its West. The parties were on extremely cordial relations with each other, used to borrow money from each other in times of need and the appellant-defendant also allowed the user of a telephone to the respondent-plaintiff. 4. The respondent-plaintiff Nanalal owns a shop of utensils just adjacent to the defendants shop to its West. The parties were on extremely cordial relations with each other, used to borrow money from each other in times of need and the appellant-defendant also allowed the user of a telephone to the respondent-plaintiff. A number of shops of utensils sprang up around the suit shops premises which affected the business of the appellant-defendant, who decided to dispose of the shop premises. As the respondent-plaintiff Nanalal was engaged in the business of selling utensils, he contacted the defendant on knowing about his intention and the contract (Ex.42) came into being. 5. Under this contract (Exhibit 42), the respondent -plaintiff Nanalal agreed to purchase the suit property for a total consideration of Rs. 93,000/- and earnest money of Rs. 15,000/- under two post-dated cheques, both dated 11th August, 1977 for Rs. 10,000/- and Rs. 5,000/- respectively for which there is no dispute, was paid by the respondent-plaintiff Nanalal to the appellant-defendant. The sale-deed was to be executed any time thereafter upto 31st December, 1977 on payment by the respondent-plaintiff of the balance consideration. The costs of sale-deed as registration charges etc. were to be borne by the respondent-plaintiff. It was stipulated in the contract that if the respondent-plaintiff failed to get the sale-deed executed by 31st December, 1977 his earnest money would stand forfeited. The appellant on his part was to clear up all the encumbrances on the property, if any, by the stipulated date. These encumbrances have been referred to in the agreement Exhibit 42 as HkkuxM ckstk (Bhangad boja). No particulars of the aforesaid encumbrances find place in the agreement. The appellant agreed to give vacant possession of the suit shop premises to the plaintiff under the agreement of sale (Ex 42). In this connection, it may be mentioned that although not mentioned in Exhibit 42 there was a small shop of sweet-meats known as "Kalpataru Sweet Mart" in the premises near the portion of its pavements. Exhibit 42 also speaks of the contract having been brought about by the broker Bahurilal Singwi. 6. In this connection, it may be mentioned that although not mentioned in Exhibit 42 there was a small shop of sweet-meats known as "Kalpataru Sweet Mart" in the premises near the portion of its pavements. Exhibit 42 also speaks of the contract having been brought about by the broker Bahurilal Singwi. 6. A spate of exchange of notices took place between the parties before the stipulated date and also thereafter, each party charging the other for committing breach of its obligations and at the same time averring that each side was ready and willing to perform its own part of the contract. 7. It was the alleged payment of Rs 2,000/- on 25th November, 1977 as second instalment of the earnest money by plaintiff to the defendant for which no receipt was obtained by the plaintiff but which amount was noted in the daily account of the plaintiff Exhibit 43-A that the acrimony between the parties started. 8. The first round was fired by the plaintiff by notice dated 30th November, 1977 (Ex. 69) calling upon the defendant to get the portion occupied by the "Kalpataru Sweet Mart" vacated and to execute the sale-deed on the due date i.e. 31st December, 1977 by giving him vacant possession of the entire suit premises, in which (notice) the plaintiff also averred that he was ready and willing to perform his own part of the contract. As Income-tax clearance Certificate is necessary for registering a sale deed for consideration exceeding Rs. 50,000/-, the plaintiff, by the notice (Ex. 69), also called upon the appellant-defendant to obtain the Income Tax Clearance Certificate and to fix the date on which the sale-deed was to be executed. Two things deserve notice in Exhibit 69. In the first place, there is no mention of the alleged payment of Rs. 2,000/- as the second instalment of the earnest money on the part of the plaintiff and in the second place this notice was not replied to by the appellant-defendant, although he did reply the subsequent notice sent by the plaintiff. 9. In the first place, there is no mention of the alleged payment of Rs. 2,000/- as the second instalment of the earnest money on the part of the plaintiff and in the second place this notice was not replied to by the appellant-defendant, although he did reply the subsequent notice sent by the plaintiff. 9. This notice (Exhibit 69) was followed by the plaintiff by publication on 1st December, 1977 in the issue of daily "Matrubbumi" and also on 2nd December, 1977 in the issue of daily "Hindustan" of two notices respectively, advertising his transaction under the contract (Exhibit 42) with the defendant and calling upon the creditors of the defendant, if any, to intimate to the plaintiff about their claims outstanding against the suit property. As per usual business practice, M/s. Pandya Brothers, the firm of the defendant Popatlal and his father Manishankar, used to take deposits from a number of persons. The notices published by the plaintiff in the daily "Matrubhumi" and daily "Hindustan" put their creditors on their guard and a spate of reply notices (Exhibits 48 to 66) from various unsecured creditors of the defendant were received by the plaintiff showing a total amount of unsecured debt to the extent of Rs. 61,315.58 paise owed by the firm M/s. Pandya Brothers to various creditors. 10. Besides, two other secured creditors also gave a reply to the plaintiff's public notice. By Exhibit 46 dated 6th December, 1977, the Bank of Baroda informed the plaintiff that the defendant firm had taken an overdraft of Rs. 24,813.45 paise from the bank and had deposited the title deeds of the entire house of the defendant thereby creating an equitable mortgage by deposit of title deeds. Likewise, one Lalchand by notice Exhibit 47 dated 5th December, 1977 informed the plaintiff about his claim for Rs. 3485/- against the firm Pandya Brothers and about his filling of a suit Civil Suit No. 589 of 1977 against the said firm of the defendant and about his having filed an application of attachment before judgement, of the house of the defendant, which according to him belonged to the family of Manishankar, the father of the defendant. 11. 3485/- against the firm Pandya Brothers and about his filling of a suit Civil Suit No. 589 of 1977 against the said firm of the defendant and about his having filed an application of attachment before judgement, of the house of the defendant, which according to him belonged to the family of Manishankar, the father of the defendant. 11. Having come to know about the secured and unsecured debts by the defendant's firm M/s. Pandya Brothers by the aforesaid massive response to the public notices, the plaintiff issued another notice (Exhibit 68) dated 19th December, 1977 calling upon the defendant to clear the debts owed by Pandya Brothers to both secured and unsecured creditors total Rs. 59,315.98 and to pass a clear title to the plaintiff, lest the creditors of M/s. Pandya Brothers may move the Insolvency Court and jeopardise the transaction of the contract in the question. In this notice dated 19th December, 1977 the plaintiff reiterated his willingness and readiness to get the sale-deed executed as per the agreed conditions of Exhibit 42, provided the defendant passed a clear title to the suit premises to him. 12. In this respect, by the said notice (Exhibit 68), it may be mentioned that the plaintiff made a grievance in the first place about non-receipt of a reply to his earlier notice dated 30-11-1977 (Exhibit 69) and also offered a solution to satisfy the creditors of the defendant-appellant, by mentioning their amounts owed by the defendants in the sale-deed and by offering to pay them directly out of the balance consideration provided the defendant and his creditors agreed for such a settlement. 13. It was then the turn of the defendant to take up cudgels with the plaintiff which he did, by a short reply notice dated 22nd December, 1977 (Exhibit 70). In this reply notice, while contending that he (the defendant) was ready and willing to hand-over vacant possession and to execute the sale-deed as per the agreement, he (the defendant) assured the plaintiff that he would pay the cash credit amount due by him to the Bank of Baroda and obtain the sale-deed from their possession. So far as the other creditors were concerned, it was contended by the defendant in the said notice (Exhibit 70) that they were of the partnership firm and the debts were not owed by him in his individual capacity. So far as the other creditors were concerned, it was contended by the defendant in the said notice (Exhibit 70) that they were of the partnership firm and the debts were not owed by him in his individual capacity. Secondly, even after the sale, the residential portion of the house would remain intact with him and as such there was no fear of any insolvency proceedings to be initiated by the said unsecured creditors against him. 14. The defendant also made a grievance that the plaintiff was unnecessarily raising a bogey and called upon him to take the sale-deed. This reply notice is conspicuous by its absence of an answer to the solution suggested by the plaintiff in his notice (Exhibit 69), nor does it contain any reply to the need of obtaining Income Tax Clearance Certificate, not to speak of how the defendant was to get the portion in possession of "Kalpataru Sweet Mart" vacated. 15. The plaintiff, therefore, served the third notice (Exhibit 67) dated 26th December, 1977. He referred in this notice to the earlier two notices (Exhibit 69 and Exhibit 68). He (the plaintiff) made a grievance of the defendant not taking any steps get the premises vacated by "Kalpataru Sweet Mart" and reminded the defendant that even a partner of a firm was liable for the debts of a firm, individually. In this notice, the plaintiff reiterated his willingness to take (Hawala) for the defendant's debts and undertook to satisfy the creditors of the defendant. The plaintiff gave 24 hours notice to the defendant to give a reply to this notice (Exhibit 67). The reply of the defendant (Exhibit 71) dated 27 the December, 1977 was prompt enough. The defendant stated that he was willing to give vacant possession including the portion occupied by the "Kalpataru Sweet Mart" and denied that the creditors of the firm M/s. Pandya Brothers constituted a threat to the clear title of the defendant to the suit house as the said firm had enough assets. The defendants charged the plaintiff for putting forth untenable excuses for taking sale-deed. It is by this notice that the defendant threatened the plaintiff that if the sale-deed was not taken, his earnest money would be forfeited. 16. Time for performance of the contract was fast approaching. Then followed notices by telegrams. The defendants charged the plaintiff for putting forth untenable excuses for taking sale-deed. It is by this notice that the defendant threatened the plaintiff that if the sale-deed was not taken, his earnest money would be forfeited. 16. Time for performance of the contract was fast approaching. Then followed notices by telegrams. The defendants gave a telegraphic notice (Exhibit 73) calling upon the plaintiff to remain present on 31st December, 1977 the stipulated date, in the office of the Sub-Registrar, Amravati, while the plaintiff sent a similar telegraphic reply (Exhibit 74) dated 30th December, 1977, informing the defendant about his readiness and willingness to take the sale-deed albeit with vacant possession and clear title. 17. The due day i.e. 31st December, 1977 drawned with both the parties visiting Sub-Registrar's office but surprisingly enough not coming together and each other charging later, about latter's absence in their evidence in the trial. The plaintiff had purchased a stamp paper (Exhibit 74-A) on 31st December, 1977 and the defendant had sworn an affidavit (Exhibit 87) on 31st December, 1977 before the Executive Magistrate to evidence their respective presence in the office of the Sub-Registrar. The plaintiff, however, admitted in his evidence that he had not taken money with him as he had not received intimation from the defendants that the house was vacant and as the clog had not been cleared. Thus the day passed away and the due date was over. Without the sale-deed seeing the light of the stipulated day despite each side proclaiming that it was ready and willing to perform its part of the contract. 18. After the stipulated date i.e. 31st December, 1977, both the sides lost no time in taking advantage of the situation that the sale-deed did not come into existence. The defendant issued a notice (Exhibit 75) on 3rd January, 1978 accusing the plaintiff of committing the breach of the contract and intimating him about the former forfeiting the earnest money; while the plaintiff instituting the present suit for specific performance of contract on the same day i.e. 3rd January, 1978, reiterating his readiness and willingness to perform his part of the contract and to take the sale-deed but with a clear title and in the alternative for damages of Rs. 30,000/- with refund of earnest money of Rs. 17,000/- plus interest of Rs 1165/- and Rs. 80/- as notice charges, total being Rs. 48,245/-. 30,000/- with refund of earnest money of Rs. 17,000/- plus interest of Rs 1165/- and Rs. 80/- as notice charges, total being Rs. 48,245/-. 19. The suit was resisted on the ground that it was the plaintiff who was liable for the breach of the contract and that the time being the essence of the contract, the plaintiff was not entitled for specific performance of contract, much less for a money decree in the alternative. In the written statement, the defendant denied receipt of Rs. 2,000/- as a second payment of earnest money. He, however, admitted about the equitable mortgage with Bank of Baroda by deposit of title deeds, but contended that the plaintiff was aware of the same at the time of the contract itself and well knew about the intention of the defendant to clear the said equitable mortgage "from the consideration to be receive by him at the time of the sale-deed". He also admitted that he had agreed to deliver vacant possession of the suit premises. 20. With subsequent events, the pleadings came to be amended. One of the creditors of the defendant, namely, Lalchand had obtained attachment before judgement a Civil Suit No. 589 of 1977, which attachment of the property was got released by the firm M/s. Pandya Brothers on furnishing security before the Appellate Court. Likewise, the defendant had satisfied the dues of Bank of Baroda. Thus both the subsisting secured encumbrances on the property having vanished, the plaint was amended with the plaintiff giving up his insistence also on the "Kalpataru Sweet Mart" vacating the suit premises by taking on himself the responsibility of starting rent control proceedings against "Kalpataru Sweet Mart "without which the premises occupied by the "Kalpataru Sweet Mart " could not be got vacated. Thus, according to the plaintiff there was no impediment now and he was ready and willing to perform his part of the contract and to take the sale deed by depositing the balance of consideration as agreed. 21. With this change in the circumstances, the defendant pleaded by way of consequential amendment that with the rise in price of real estate, the suit property which was worth Rs. 93,000/- only at the time of the agreement (Exhibit 42) dated 4th August, 1977 was worth Rs. 21. With this change in the circumstances, the defendant pleaded by way of consequential amendment that with the rise in price of real estate, the suit property which was worth Rs. 93,000/- only at the time of the agreement (Exhibit 42) dated 4th August, 1977 was worth Rs. 2,50,000/- now and if specific performance was to be granted, it should be at the latter price minus the earnest money of Rs. 15,000/-. According to the defendant, he was entitled to this just relief, in case specific performance was granted in equity, as it was the plaintiff who was responsible for the delay by what has been described in the judgement of the learned trial Court as "by stirring a hornet's nest", by raising a bogey of secured and unsecured debts due to the defendant and his firm and by issuing public notices, in vain, although the plaintiff knew about the practice of businessman to accept deposits and also because the plaintiff being a neighbour, the existence of "Kalpataru Sweet Mart" on the premises could not have but escaped his notice. All this delay was, therefore, manipulated by the plaintiff according to the defendant as the plaintiff had no sufficient funds at the time of the contract and also at the stipulated date to get the sale-deed executed. 22. So far as the funds with the plaintiff are concerned, it may be noted here only as the evidence shows vide Exhibits 72-A B that on 31st December, 1977, leaving aside the disputed second earnest money of Rs. 2,000/- the plaintiff was to pay to the defendant Rs. 78,000/- (Rs. 93,000-Rs. 15,000=Rs. 78,000/-). The plaintiff had in the Central Bank of India Rs. 67,628.75 paise and Rs. 6,500/- in the Bank of Baroda and was therefore, short of funds by only about Rs. 4,000/- or so plus the expenses of the sale-deed and the registration charges. Thus, all told, at the most the plaintiff had to raise an additional amount of Rs. 10,000/- and odd to complete the transaction of the sale-deed on 31-12-1977. Admittedly, he had not taken with him any amount to the Sub-Registrar's office for which plaintiffs reasons have already been referred to. 23. Thus, all told, at the most the plaintiff had to raise an additional amount of Rs. 10,000/- and odd to complete the transaction of the sale-deed on 31-12-1977. Admittedly, he had not taken with him any amount to the Sub-Registrar's office for which plaintiffs reasons have already been referred to. 23. With this backdrop, the stipulations in the contract (Exhibit 42), the conduct of the parties as revealed by exchange of notices, the attending circumstances of the case, the trial was held by the learned Civil Judge, Senior Division, Amravati on the necessary issues framed by his predecessor. The evidence consisted of the testimony of plaintiff Nanalal at Exhibit 41 as against that of the defendant himself, his father Manishankar and also that of the broker Bahurilal. It may be mentioned that the name of Bahurilal as the broker, who had brought about the contract, has been specifically mentioned in the contract (Exhibit 42). 24. The learned trial Judge marshalled the evidence at length and found that the fault lay with the appellant-defendant himself, inasmuch as he did not clear the encumbrances on the due date. The learned Judge also held that the plaintiff did not prove the payment of Rs. 2,000/- as additional earnest money to the defendant. The final situation thus emerging was crystallized by the learned Judge as follows in paragraph 39: "39. Plaintiff was aware of the encumbrances. Encumbrances of Bank of Baroda and Lalchand were there till 31st December, 1977, the date for the sale-deed. Plaintiff was also aware of the deposits. These deposits could further encumber the defendant's property as it was equally liable for debts of the firm in his capacity as its partner. It is quite possible that the plaintiff himself instigated the notices from the bank and the depositors of the firm M/s. Pandya Brothers. Plaintiff did not have sufficient money to pay the consideration, the stamp charges and the registration charges on 31st December, 1977. The Income Tax Certificate was not ready at hand but the Certificates Exhibits 84, 85 and 86 were with the defendant." Earlier in paragraph 37, the learned trial judge observed : "I do see on record Exhibits 84, 85 and 86 filed by the defendant which show that on 17th November, 1977 and 23rd August, 1977, no income-tax was due against the firm M/s. Pandya Brothers for the years 1976-77 and 1977-78. One may therefore, presume that the defendant was not owing any income-tax and they could file Income Tax Clearance Certificate before the Sub-Registrar for getting the document registered." 25. Addressing, therefore, to the question as to whether the totality of facts and circumstances narrated above disentitled the plaintiff from the equitable relief of specific performance of the contract (Exhibit 42), the learned trial Judge answered the question in negative, holding inter alia that the time was not the essence of the contract in question, and that the plaintiff could have easily raised the deficit amount necessary for execution of the sale-deed even after 31-12-1977 and that there now being no question of any encumbrances, there was no impediment in the way of the plaintiff to get a clear title to the suit premises. The learned trial Judge also came to the conclusion that the presumption that the specific performance of a contract for sale of immoveable property was not capable being relieved by money compensation had stood unrebutted even if the plaintiff had committed errors, mistakes and had indulged in falsehood. He negatived the contention of the defendant that the latter was entitled for an equitable relief by denying the specific performance of contract or by allowing it at the present market price, on the ground that the rise in prices was not a phenomenon which cast unforeseen hardships, giving unfair advantage to the plaintiff. 26. We have narrated the facts and circumstances of the case from the beginning to the end in somewhat greater detail without much comment thereon as, in our opinion, the facts and circumstances speak for themselves and support the conclusion reached by the learned trial Court with which we are broadly in agreement. 27. The learned trial court's observations that the plaintiff had indulged in falsehood in respect of the alleged second earnest payment of Rs. 2,000/- is that way not correct, for reasons more than one. It is true that no receipt was obtained by the plaintiff for the said payment much less any mention was made of the said payment on any of the notices and for that matter in the notice dated 30-11-1977 (Exhibit 69) sent immediately after the alleged payment of Rs. 2,000/-. In the daily account-book the plaintiff showed the payment of Rs. 2,000/- to the defendant. 2,000/-. In the daily account-book the plaintiff showed the payment of Rs. 2,000/- to the defendant. The learned trial Court has, however, overlooked the fact that the Ledger page 47 was also mentioned in Account Book (Exhibit 43-A). The relations between the parties were admittedly cordial and transaction of advancing petty loans to each other was not an unusual affair between the parties. It may be that plaintiff may not have insisted on for the receipt while advancing Rs. 2,000/- in view of the cordial relations then existing. However, for want of receipt, all that can be said is that the payment of Rs. 2,000/- has not been proved and not that the fact is disproved or that the plaintiff has come to the Court with a blatant lie disentitling him in the equity to the relief claimed. The earnest money paid by the plaintiff was Rs. 15,000/-. If the plaintiff wanted to indulge in a falsehood of additional payment of earnest money, he would have rather quoted a sizeable sum than the petty amount of Rs. 2,000/- which could even be a hand loan. The fact, therefore, that additional payment of Rs. 2,000/- as earnest money is not proved, is not of such a magnitude as to non-suit the plaintiff particularly in face of a written agreement (Exhibit 42). 28. This answers one of the three contentions raised by the learned Counsel for appellant. 29. The second question of importance is of the time being essence of the contract in question. The stipulation in this respect in Exhibit 42 is as follows: "The time-limit for the sale-deed shall be till 31-12-1977 from today." eqnrhpk vkr rqEgh lakxky rs fno'kh o lakxky R;k ukokus [kjsnh [kr d:u nsbZu- " I will execute the sale-deed within the said time limit on the day of your choice and in the name of the person of your choice." "If you do not complete the sale within the stipulated time, then your earnest money would not be returned to you. Similarly, if within the said time limit, as agreed thereto, I do not execute the sale-deed, then you will get the sale-deed executed through Court and for which I will have no objection." 30. Do these stipulations make time the essence of the contract ? The answer is an emphatic no. Similarly, if within the said time limit, as agreed thereto, I do not execute the sale-deed, then you will get the sale-deed executed through Court and for which I will have no objection." 30. Do these stipulations make time the essence of the contract ? The answer is an emphatic no. A plain reading of the contract would show that the sale-deed could be executed over a period of time from the date of the contract between 4th August, 1977 till 31-12-1977 at the choice of the plaintiff. Why not then even after 31-12-1977 if the plaintiff was ready and willing to perform his part of the contract? 31. The law on this point is now well settled and certain enough. It is the unmistakable intention of the parties that answers the question. 32. Section 55 of the Contract Act runs thus: "55. When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee if the intention of the parties was that time should be the essence of the contract. If it was not the intention of the parties that time should be the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.” 33. The second paragraph quoted above of section 55 shows the effect of the failure when time is not the essence. 34. In (Gomathi Nayagam Pillai and others v. Pelani Swami Nadar)1, A.I.R. 1967 S.C. 868. Their Lordship of the Supreme Court have observed that intention to make time essence of the contract, 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, the conduct of the parties and surrounding circumstances at or before the contract. Their Lordship of the Supreme Court have observed that intention to make time essence of the contract, 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, the conduct of the parties and surrounding circumstances at or before the contract. Their Lordship of the Supreme Court have further observed that “specific performance of a contract will ordinarily be granted notwithstanding default in carrying out the contract within the specified period, if having regard to 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 immoveable property, it would normally be presumed that time was not essence of the contract”. It is pertinent to note in the said observation that “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. Prime facie, equity treats the importance of such time-limit as being subordinate to the main purpose of the parties and it will enjoin its specific performance notwithstanding that from the point of view of law, the contract has not been performed by the plaintiff as regards the time-limit prescribed”. 35. It is, therefore, clear that apart from the language being clear and unmistakable, the intention of the parties to make time as essence of the contract will depend circumstances sufficiently strong and compelling enough to displace the presumption that time is not the essence of the contract. The burden to displace the presumption is very heavy and onerous of the party who contends that time was the essence. 36. In yet another case (Prakash Chandra v. Angadlal and others)2, A.I.R. 1979 S.C. 1241 it has been reiterated by Their Lordships of the Supreme Court that specific performance should be granted ordinarily and it ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. 37. In (Kondanswami Mudaliar v. Munuswamy Udiyar)3, 1974 Mad.L.J.R. 62 the Madras High Court has held that in all agreements to convey immoveable property usually time is not the essence of the contract. 37. In (Kondanswami Mudaliar v. Munuswamy Udiyar)3, 1974 Mad.L.J.R. 62 the Madras High Court has held that in all agreements to convey immoveable property usually time is not the essence of the contract. All that is required therefore, while passing a decree for specific performance of a contract for sale of immoveable property is to find out whether the plaintiff was ready and willing to perform his part of the contract from the date of the contract till the date of hearing of the suit. Having therefore, regard to the facts and circumstances of the case and the intention of the parties as evidenced from the exchange of notices, it must be said and we hold that time was not essence of the contract in question. This disposes of the second contention raised by the learned Counsel for the appellant. 38. The last but not the least point to be considered is readiness and willingness to perform one's own part of the contract. It was the plaintiff who had released the first swallow by giving a notice dated 30th November, 1977 (Exhibit 69) expressing his readiness and willingness to perform his part of the contract. In this connection, it was vehemently argued by the learned Counsel for the appellant that thereafter by stirring a hornet's nest by giving public notices and inviting outstanding claims against the defendant from his secured and unsecured creditors by reply notices to the public notices, the plaintiff was only showing that he was not ready and willing to perform his part of the contract. We do not agree. The boot rather is on the other leg. By giving public notices, plaintiff was merely cautions and was following the maxim "Buyer beware". It was the natural anxiety on the part of the plaintiff to get an immoveable property free of encumbrances and which had no cloud on its title. The response obtained to the public notices is clear indication as to how the plaintiffs anxiety was well-founded. The defendant had to ultimately clear the overdraft of the Bank of Baroda and also to get the attachment before judgement vacated during the course of the suit. The response obtained to the public notices is clear indication as to how the plaintiffs anxiety was well-founded. The defendant had to ultimately clear the overdraft of the Bank of Baroda and also to get the attachment before judgement vacated during the course of the suit. So far as the large number of unsecured creditors who had made deposits with the defendant the plaintiff had offered a reasonable solution and had even undertaken to satisfy those debts provided the creditors of the defendant and the defendant himself agreed for such a settlement. All this is nothing but an indication on the part of the plaintiff to abide by the contract and be ready and willing to perform his part of the contract. In this connection, the post-haste conduct on the part of the defendant to forfeit the earnest money immediately after the stipulated date was over, by a notice dated 3rd January, 1978 (Exhibit 75) has to be juxtaposed with the conduct of the plaintiff in instituting the present suit for specific performance of the contract which but showed his readiness and willingness to perform his part of the contract. 39. It is unnecessary to go into other aspects of the conduct of the parties which have been sufficiently narrated in the earlier part of the judgement. Suffice it to say that the conduct of the plaintiff from the beginning to the end till the institution of the suit and even thereafter clearly indicated his readiness and willingness to perform his part of the contract. 40. Much cannot be made of the contentions canvassed seriously by the learned Counsel for the appellant that the plaintiff had no sufficient funds with him to perform his part of the contract on 31st December, 1977. We have already referred to this aspect and have found that at the most the plaintiff was short of Rs. 10,000/- or so on 31st December, 1977 to complete the transaction of the sale-deed and that he had not taken any amount with him to the Sub-Registrars office for want of intimation from the defendant. This circumstances is wholly insufficient to come to the conclusion that the plaintiff was not ready and willing to perform his part of the contract for the simple reason that plaintiff who was a businessman could have easily arranged for a loan or a deposit to make up the deficiency. 41. This circumstances is wholly insufficient to come to the conclusion that the plaintiff was not ready and willing to perform his part of the contract for the simple reason that plaintiff who was a businessman could have easily arranged for a loan or a deposit to make up the deficiency. 41. In (Shafiq Ahmad v. Sayeedan)4, A.I.R. 1984 Allahabad 140 the Allahabad High Court, while dismissing the defendant's second appeal against a decree for specific performance of a contract of a sale of a house, has held that absence of proof that the plaintiffs were not in a position to raise the amount for reconveyance and plaintiffs averments in another suit that they would have arranged for the amount on taking a loan showed their readiness and willingness which was not adversely affected. The same High Court in (Prag Datt v. Saraswati Devi and another)5, A.I.R. 1982 Allahabad 37 has held that the institution of suit for specific performance of contract and prosecution of the case with due diligence, by itself, showed the readiness and willingness of the plaintiffs to perform their part of the contract. In the Madras case cited supra 1974 Mad.L.J.R. 62, the transaction was that of an agreement to sell immovable property simpliciter. It was held that the plaintiff will not lose his right to get specific performance merely because he had not the necessary funds before the last date provided under the contract. It is thus abundantly clear that it is not essential that the plaintiff should have money ready on the stipulated date in a contract of sale of immoveable property where time is not the essence. All that is necessary is that he should stand by the contract and be ready and willing to perform his part of the contract. By instituting the present suit, the respondent has clearly showed his readiness and willingness to perform his part of the contract apart from his previous conduct right from the very beginning to the end which unmistakably showed his anxiety to purchase the suit house and his readiness and willingness to perform his part of the contract. We find so. 42. In the result, the challenge to the impugned decree for specific performance of contract fails and the appeal is hereby with costs. Appeal dismissed -----