Dalveer Bhandari, J. ( 1 ) THIS appeal is directed against the Judgmentand Decree dated 6/10/1976 passed by the Sub-Judge, Delhi, decreeingthe Suit of the plaintiff for specific performance of the contract. ( 2 ) THE brief facts which are necessary to dispose of the present appealare set out as under: ON 24. 1. 1973, defendant agreed to sell and the plaintiff agreed topurchase the quarter no. 3/4, Double storey, Lajpat Nagar IV, Newdelhi, for a consideration of Rs. 16,000. 00. The defendant receivedrs. 1000. 00at the time of signing of the agreement and the plaintiffagreed to give another sum of Rs. 14. 000. 00 to the defendant before 31/03/1973 and another sum of Rs. 1000. 00 at the time of registration of the sale deed. It was agreed between the parties that thesale deed would be executed within 15 days of the receipt of thesale permission to be executed by the defendant in favour of theplaintiff or his nominee. ( 3 ) THE plaintiff filed a suit for specific performance of the contract onthe ground that the defendant failed to execute the sale deed within the stipulated time. It was further averred that the defendant also failed to give the vacantpossession of the quarter in question even though the plaintiff has always beenready and willing to pay the balance amount of Rs. 14,000. 00 to the defendant. The plaintiff prayed that the agreement dated 24. 1. 1973 be enforced by meansof specific performance. It appeared to the plaintiff that the defendant wasbacking out of the coract. Therefore, he had sent telegraphic notice on26. 3. 1973. The telegraphic notice sent by the plaintiff is reproduced in toto asunder: "sale quarter 3/4 Lajpat Nagar and also Telegram Dated 26. 3. 73 (.)you received earnest money 1000. 00 now Rs. 14,000. 00 ready receive andgive possession before 31. 3. 73 intimate time and date place. Gulab Tulsyani Advocatefor Gian Chand Son Santumal4/11, Old Double Storeylajpat Nagar. " ( 4 ) BUT in spite of such a specific telegraphic notice, the defendantfailed to execute the sale deed and did not give possession to the plaintiff. ( 5 ) ON 28. 3. 1973, the plaintiff had sent another telegraphic letter callingupon the defendant to hand over the vacant possession of the property. Thereafter, the plaintiff had again sent a copy of the notice through postal A. D. registered letter to the defendant. ( 5 ) ON 28. 3. 1973, the plaintiff had sent another telegraphic letter callingupon the defendant to hand over the vacant possession of the property. Thereafter, the plaintiff had again sent a copy of the notice through postal A. D. registered letter to the defendant. The defendant chose not to reply to any ofthese notices. In pursuance of all these notices and oral requests eventually thedefendant gave expression to his hidden feelings and desire and orally communicated to the plaintiff his unwillingness to sell the property. Immediately thereafter, on 14/04/1973, he had sent a letter to the plaintiff-through his Counselfinally refusing to perform his part of the contract. The defendant had alsothreatened the plaintiff to forfeit Rs. 1000. 00 paid in advance to him at the timeof the agreement. The defendant by his conduct had left no option for theplaintiff and as a last resort, the plaintiff had filed a suit for specific performanceof the contract on 19. 4. 1973. ( 6 ) IN the suit, the plaintiff reproduced the terms and conditions of theagreement. In para 4 of the plaint, it has been categorically mentioned that onor about 23. 3. 1973, the plaintiff told the defendant that he was ready and willing to pay balance amount of Rs. 14,000. 00 in cash and the defendant be readyto hand over vacant possession in time before 31/03/1973. The plaintiffagain sent a telegraphic notice dated 26/03/1973 in which the plaintiffreiterated that he was ready and willing to pay the balance sum of Rs. 14 000. 00again, on 28/03/1973, the plaintiff through his Counsel had sent anothertelegraphic notice calling upon the plaintiff to hand over vacant possession of the property on payment of Rs. 14,000. 00. The defendant did notsend any reply to any of the plaintiff s notices but orally mentioned thathe was not willing to sell the property to the plaintiff. ( 7 ) THOUGH the defendant had virtually no defence in this case,but he chose to contest the suit and filed a written statement. In Para 3 ofthe written statement, the defendant had not denied having receivedrs. 1000. 00as earnest money but without any foundation or basis mentionedthat the plaintiff was not ready and willing to pay the remaining amount ofrs. 14,000. 00. In Para 3 ofthe written statement, the defendant had not denied having receivedrs. 1000. 00as earnest money but without any foundation or basis mentionedthat the plaintiff was not ready and willing to pay the remaining amount ofrs. 14,000. 00. The credibility of the defence of the defendant became totallytotally doubtful when in reply to para 5 of the plaint, he took a completesomersault and mentioned, "it is denied that Rs. 1000. 00 was paid as advance"and again thereafter mentions "as the plaintiff committed the breach of thecontract, the defendant was justified in forfeiting Rs. 1000. 00and revoking theagreement. " The defendant had taken the defence that the time was the essenceof the contract and within the stipulated period, the plaintiff did not tender orpay Rs. 14000. 00 as stipulated in the agreement. After going through the writtenstatement of the defendant, it became clear that somehow he wanted to wriggleout of the agreement. ( 8 ) AFTER perusing the agreement, plaint and the written statement andhearing the Counsel, the learned judge of the trial Court framed the followingissues: "1. Whether the plaintiff was ready and willing to perform his partof the contract ?2. Whether the defendant has committed the breach of thecontract ?3. Whether time was the essence of the contract. If not, to whateffect ?4. Relief. " ( 9 ) THE learned trial Court has categorically came to the conclusion thatthe plaintiff had produced on record Ex. P-1 which is a copy of the statementof account of the plaintiff in Central Bank of India, Lajpat Nagar. The statement shows that the plaintiff had deposited a sum of Rs. 13,000. 00 in the bankon 29/03/1973. According to the trial Court bonafides of the plaintiff isis further established when he orally requested the defendant to perform hispart of the contract and on his non-performance, he had sent several noticesindicating that he was ready and willing to perform his part of the contract,therefore, please come forward to perform your part of the contract. The Courtfurther came to the conclusion that the defendant did not act in a madner whichwould indicate that the plaintiff was not ready and willing to perform his partof the agreement and the defendant was eager to sell the quarter or to performhis part of the contract. ( 10 ) THE trial Court has held that as far as issue no. ( 10 ) THE trial Court has held that as far as issue no. 2 is concerned,the defendant has admitted that he has not delivered the possession to theplaintiff in terms of the agreement. After examining the submission of both thedefendant and the plaintiff, the trial Court came to the conclusion that thedefendant had committed breach of the agreement. ( 11 ) THE learned trial Court while deciding the issue no. 3, "whethertime was the essence of the contract", has mentioned that the Counsel for theparties admitted that in case of immovable properties, time is usually not theessence of the contract. However, the parties may make time the essence of thecontract by express agreement. The Court came to the conclusion that theparties never intended time to be the essence of the contract. It would beappropriate to note that the plaintiff has shown his willingness to perform hispart of the agreement by sending telegraphic notices on 26. 3. 1973 and 28. 3. 1973i. e. before the stipulated date of performance of the contract. Therefore, evenif time is taken as the essence of the contract, even then the suit filed by theplaintiff must succeed. ( 12 ) HAD the defendant been so keen to get the agreement executed thenhe would have taken steps to see that the plaintiff paid him the money. Thedefendant had not taken any step to deliver the possession to the plaintiff orthat he had shifted to some other quarter or premises. The conduct of thedefendant clearly shows that the wanted to back out of the agreement. Thetrial Court directed the plaintiff to deposit a sum of Rs. 15,000. 00 in the Courtwithin 30 days of the order. The Court further mentioned that in case theplaintiff failed to deposit. the said amount within the stipulated time, the suitshall stand dismissed. In pursuance of the Court s direction, the plaintiff baddeposited the entire amount which is lying with the Court. Unfortunately, thedefendant had made no efforts to get the balance consideration deposited in thefixed deposit with the bank. Otherwise, the amount would have multiplied,several-folds. We have carefully perused the agreement and statements of witneses produced on behalf of the defendant and the plaintiff. In our opinion, theconclusion arrived at by the learned trial Court seems to be quite justified. Unfortunately, thedefendant had made no efforts to get the balance consideration deposited in thefixed deposit with the bank. Otherwise, the amount would have multiplied,several-folds. We have carefully perused the agreement and statements of witneses produced on behalf of the defendant and the plaintiff. In our opinion, theconclusion arrived at by the learned trial Court seems to be quite justified. According to us, the plaintiff has always been ready and willing to perform hispart of the contract and the defendant wanted to back out from the same. ( 13 ). We have heard Shri G. C. Lalwani, Counsel for the plaintiff, andshri R. L. Tandon, Counsel for the defendant at length. The matter was adjourned from time to time to see that even at this stage parties may settle theirdispute and arrive at a suitable compromise. It seems that even with the best ofefforts of the Counsel, the matter could not be mutually resolved and now wehave been called upon to give our verdict. ( 14 ) WE are conscious of the fact that the defendant has been inpossession of the said quarter for the last several decades and logical consequence ofaffirming the Judgment of the trial Court would mean considerable hardship tohim, at the same time the conduct of the defendant does not justify any furtherindulgence by the Court. We have no doubt that the defendant has tried towriggle out of the contract between the parties because of the tremendousescalation in the prices of real estate properties all over the country and indelhi, in particular in the last few years. ( 15 ) IN deciding the instant appeal, our endeavour would be to minimisehardship of the parties without deviating from the settled principles of law. Onthe basis of the agreement and other evidence on record, in our opinion theconclusion arrived at by the trial Court is irresistible. We affirm the Judgmentpassed by the trial Court dated 6. 10. 1976. We deem it appropriate to recall thatduring the course of negotiations Mr. Lalwani, on instructions from the plaintiffstated that to mitigate the hardship to the defendant and considering the factthat value of the property has increased in manifold, he was prepared to payrupees one lakh more to the defendant. We consider this offer to be quite justand fair and will accept the same. Lalwani, on instructions from the plaintiffstated that to mitigate the hardship to the defendant and considering the factthat value of the property has increased in manifold, he was prepared to payrupees one lakh more to the defendant. We consider this offer to be quite justand fair and will accept the same. Accordingly, we direct the plaintiff to deposit rupees one lakh with the Registrar of this Court within two months fromtoday who in turn would deposit the amount in short term deposit in a nationalised bank. This amount would be paid to the defendant on his giving possession of the quarter in question to the plaintiff. We grant six months time to thedefendant to give vacant possession of the quarter no. 3/4, Double storey,lajpat Nagar IV, New Delhi to the plaintiff. We are granting long time to thedefendant to vacate so that his family particularly children may not get disturbed or dislocated in the mid academic session. We further direct the defendantnot to induct any other person or create third party rights or interests in themeanwhile. The appeal filed by the defendant is dismissed but in the peculiarfacts and circumstances of the case, we leave. the parties to bear their owncosts.