JUDGMENT 1. - S. N. Khanna, defendant, had allegedly agreed to sell a plot No. A%7.. Tilak Nagar, Jaipur, (comprising of 1,425 sq. yards of land) for a consideration of Rs. 1,45,000/- under an agreement to sell duly executed on August 20, 1973 in favour of Mulk Raj Sethi, plaintiff. who is said to have paid a sum of Rs. 45,000/- as advance money on the very day, with the assurance to pay balance consideration at the time of registration, but with the stipulation that he (S.N. Khanna) would execute the sale deed in favour of Nlulkraj Sethi within two months or the period extended from time to time by the parties. Possession of the annexee to the disputed property was handed over to the plaintiff. The plaintiff has come up with his case that despite his persistent requests, the defendant has not paid any heed to his requests for performing the terms and conditions of the agreement to sell, rather after agreement to sell, with an oblique motive, the defendant took forcible possession back of the annexee to the disputed property which was handed over during the execution of the agreement to sell by way of fabrication of documentary evidence. Therefore, the plaintiff instituted a civil suit for specific performance of the contract on March 18, 1975, with additional prayer to award mesne profits (2; Rs. 2000/- per month from the defendant till the possession is given to the plaintiff. 2. The defendant in his written statement admitted execution of the agreement but denied to have given possession of the annexee to the property in favour of the plaintiff inasmuch as he denied of the fact of the talk about execution of a power of attorney in favour of one Shri Maliram Verma for getting a sale deed executed. The defendant had pleaded that he had asked the plaintiff to send a draft sale deed fixing the date of execution of the sale but nothing was done by the plaintiff in this respect inasmuch as no amount of stamps duty & registration charges etc. was given nor he disclosed a name of his nominee in whose favour the sale was to be executed. was given nor he disclosed a name of his nominee in whose favour the sale was to be executed. His case was that he along with his advocate, Ramavtar met the plaintiff at Maliram Verrna's place but the plaintiff failed to even disclose the nominees so, according to the defendant, it was the plaintiff who did not carry out' the agreement rather he was ready and willing to perform his part of contract and in these circumstances, the plaintiff is not entitled to any relief for specific performance. 3. On the basis of the pleadings of the parties, six issues were framed. Five witnesses have been produced by the plaintiff whereas five witnesses were produced by the defendant. After hearing both the parties, the learned trial Court decided issue Nos. 3 to 6 in favour of the plaintiff but decided issue No. 1 & 2 against the plaintiff. On the findings arrived at under issue Nos. 3 to 6 the trial court decreed plaintiff's suit in part but it declined to pass decree for specific performance under its judgment dated 17.5.19b0. Hence this first appeal by the plaintiff. 4. Cross objection has also been filed on behalf of the defendant against the decree for refund of a sum of Rs. 45,000,- plus interest to the tune of Rs. 4341.57 p. up to filing of the suit and onwards w.e,f. 18.3.75 till the realisation @ 6, per annum. 5. An agreement of sale was entered into in between the plaintiff, the defendant on August 20.1983, in respect of the suit property for sale consideration of Rs. one lac forty five thousand only out of which a sum of Rs. forty five thousand had been received by S.N. Khanna (seller-defendant) from M.R. Sethi (buyer-plaintiff) on August 20, 1973 vide Ex. 2. The facts set out above have not been disputed by any of the parties either in their pleadings or their evidence. It is also not in dispute that the period of completion of sale was extended mutually by both the parties. The terms and conditions stated in the agreement of sale (Ex. 1) have also not been disputed 6. Under the agreement (Ex. It is also not in dispute that the period of completion of sale was extended mutually by both the parties. The terms and conditions stated in the agreement of sale (Ex. 1) have also not been disputed 6. Under the agreement (Ex. 1) in Clause 3, the balance amount was to be paid at the time of registration, and in clause 4, the seller would arrange for the registration of the transfer of property in favour of the buyer; in clause 5, the period of two months can/could be extended with the mutual consent of the parties, 7. The prima question which requires determination in this appeal is, whether the plaintiff was not ready and willing to perform his part of the contract r whether he has repudiated the contract or which of parties had repudiated the contract ? 8. It is trite law that it is an essential requirement of a suit for the specific performance of a contract for the sale of the immovable property that the plaintiff should make a n averment about his readiness and willingness to perform his part of the contract. Even, if the fact was traversed, he was required to prove a continuous and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. 9. The plaintiff in his plaint so also statement, specifically averred that he was, is and even on that day of recording of his statement, has been ready and willing to perform his part of the contract. S.N. Khanna (DW2) in his statement admitted to have received letter dated 26.6.74 which is of the plaintiff M.R. Sethi. This letter is Ex. 6. According to Ex. 6, which has been written by M,R. Sethi referring to his previous letter dated 27.3.1974. the plaintiff was very much anxiously waiting for S.N. Khanna and he had requested S.N. Khanna to come to Jaipur personally and in case of his inability to come personally at an early date, S.N. Khanna was advised in that letter to send a power of attorney favouring his Advocate, Shri M.R. Verma so as to execute the sale deed in respect of the disputed property. Ex. A. 9 is a letter of S.N. Khanna in reply to M.R. Sethi's letter dated 26.6.1974 (Ex. 6). In this reply. Ex. A. 9 is a letter of S.N. Khanna in reply to M.R. Sethi's letter dated 26.6.1974 (Ex. 6). In this reply. Shri S.N. Khanna has neither informed the day on which he could have come to Jaipur so as to execute sale deed nor has be stated-anything about sending his power of attorney. In that reply, he has merely stated the allegations made against M.R. Sethi. Only in his letter dated 11.8.1974 (Ex, A. 10) S. N. Khanna has given out that there is no need for executing a power of attorney in favour of Mr. Verna for executing sale deed. However, in that letter (Ex. A. 10) S.N. Khanna gave final & last opportunity to play up the balance consideration money and to have the sale deed executed within a fortnight. But, first this letter also, it is not clear as to when was S.N. Khanna reaching Jaipur so as to execute sale deed S. N. Khanna has never stated any date in his letter either of 11.8. 1974 or of prior dates referred to above, about his coming to Jaipur. Moreover, according to the agreement (Ex. 1), as, already stated above it was for the seller i. e. S.N. Khanna to have arranged for the registration of the transfer of property and further it was for him to receive the balance amount only at the time of registration and not at the time before the registration as has been given out by him (S.N. Khanna) in his letters produced by him. There was no rider or condition agreed to by the parties that firstly the buyer would have to send the balance amount of sale consideration to the seller at the place of his residence and then the sale been would be executed. S.N. Khanna in his cross-examination, however, admitted that the plaintiff has never refused to get the sale deed executed, but he stated that the plaintiff has not asked him to execute or register the sale deed. This fact stands belied by the letter of M.R. Sethi dated 26.6.74 which has admittedly been received by S.N. Khanna, and by which, as stated above, it was and is precisely clear that the plaintiff had asked S.N. Khanna to come to Jaipur or send his power of attorney so as to execute the sale deed. 10. This fact stands belied by the letter of M.R. Sethi dated 26.6.74 which has admittedly been received by S.N. Khanna, and by which, as stated above, it was and is precisely clear that the plaintiff had asked S.N. Khanna to come to Jaipur or send his power of attorney so as to execute the sale deed. 10. S.N. Khanna either in his written statement or his evidence of oral and documentary in nature, never proved nor alleged or pleaded that the plaintiff had repudiated his part of contract and that, he (defendant) had performed his part of contract as specified in the agreement (Ex.l). In the pleadings much emphasis was laid on the time alleging it to be of essence of contract. However, from the facts and circumstances which are in the form of admission of the defendant himself, even in his documentary evidence of letters submitted by him, it is abundantly clear that it was the defendant who repeatedly given chance by way of extension of time, for getting the sale deed registered even after expiry of the time as is alleged by him, of two months specified in the agreement (Ex. 1). Thus trebly, there was definite stipulation fixing time of two months for performance of the contract but, in view of the conduct of the parties and their intention having been gathered from their oral as well as documentary evidence, the fact that the time was extended, shows that the parties did not stick to the time and regard the same as the essence of the contract and that being so, the existence of default clause even in the agreement in question also does not necessarily lead to the inference that time was the essence of the contract. Moreover, the property sold in the case at hand was the land property and in contracts of sale of immovable property the presumption is that time is not of the essence of the contract. The surrounding circumstances at or before the agreement do not displace that presumption. I lend support from the decision of this Court in Pakhar Singh v. Kishan Singh, 1973 RLW p. 611 . In this view of the matter, while agreeing with the trial Court, 1 hold that there was no material for arriving at the conclusion that time was of the essence of the contract. 11. I lend support from the decision of this Court in Pakhar Singh v. Kishan Singh, 1973 RLW p. 611 . In this view of the matter, while agreeing with the trial Court, 1 hold that there was no material for arriving at the conclusion that time was of the essence of the contract. 11. Agreement to sell was entered into between the parties on 20-8-73. Two months had expired on 20-10-1973. However, from the letters and correspondence in between the parties, after two months i. e. from 20-10-1973, the parties had several meetings and each of them had given opportunities and chances to each others for registration of the sale deed on one pretext or the others. Such correspondence continued up to notice (Ex. A. 1) given by the defendant's counsel on 11-10-1974. This notice was replied by way of a telegram dated 9-12-1974 (Ex. 4) preceded by letter-cum-reply dated 7-12-1974 (Ex. 5) sent by plaintiff's advocate denying the averments of the notice of the defendant. However, in reply (Ex. 5), it has also been averred that the plaintiff has always been & is ready and willing to perform his part of the contract by paying balance and obtaining conveyance executed in his favour. That apart, it was again reminded by averring in clause (7) of the reply (Ex. 5) as under : "Under clause (4) of the agreement it was the duty of your client to arrange for the Registration of the Transfer of Property in favour of my client or his nominee or nominees within a period of two months, but your client went on taking time for the same for one or the other excuse." In clause (11) of the reply (Ex. 15) it has been averred "that my client is ready to pay the balance an d to have the sale deed executed forthwith." 12. After having perused the material on record, it appears that the defendant has not only in his correspondence but also in his pleadings in the case at hand, set up a new case by way of side-track from the agreement (Ex. 1), i. e. that it was the duty of the plaintiff to purchase necessary stamps and to have a draft sale-deed prepared and to submit the same to the defendant on or before the registration of the sale deed. 1), i. e. that it was the duty of the plaintiff to purchase necessary stamps and to have a draft sale-deed prepared and to submit the same to the defendant on or before the registration of the sale deed. That being so, it has been contended that unless the plaintiff tendered draft conveyance to the defendant the latter was not bound to execute the sale deed and in the circumstances, it is urged, it cannot be said that the plaintiff was ready and willing to perform his part of the contract. In my view, since the letters produced by the defendant, however, riddled with conditions which were in fact, quite extraneous to the terms of the agreement (Ex. 1) and did not categorically show the defendant's willingness to execute the sale deed with the plaintiff, it cannot be said with any justification that it was the duty of the plaintiff to comply with the terms of the letters which culminated into notice. As stated earlier, the plaintiff had sent a letter dated 26.6.74 (Ex. 7) which has no doubt been received and acknowledged by the defendant in his statement and letter dated 7.7.74 (Ex. A. 9), after the letters of the defendant (Ex. A. 7) requesting & advising him (S.N. Khanna) to either come personally or send his power of attorney in case of his inability to come to Jaipur for registration of the sale-deed. All the letters allegedly endorsed and addressed to the plaintiff by the defendants do not categorically show the defendant's willingness to execute the sale-deed nor does it show that the defendant had made all arrangements for the registration, as was bounden under Ex. 1. Even in reply to the defendant's notice, the plaintiff has averred that it was for the defendant to have made arrangement's for the registration in view and face of the agreement's clause (4). Even from a bare perusal of the defendant's correspondence alleged to have been made with the plaintiff and one Maliram Verma, the defendant continued to postpone and defer his visit to Jaipur on the one pretext or the others. Rather, in those correspondence, the defendant raised a number of points which in fact were quite extraneous to the agreement for sale. 13. Rather, in those correspondence, the defendant raised a number of points which in fact were quite extraneous to the agreement for sale. 13. Even after calling upon the plaintiff to carry out the instructions (stated in his letters) such as, to send the name of his nominee, to send a draft sale-deed along with balance amount of sale consideration b_fore execution of the sale-deed, (which in fact, as already stated above), were quite extraneous to the agreement (Ex. 1), the defendant had also gone on to extend the time, as would be evident from letter dated 11.8.1974 (Ex. A. 10). Thus it makes clear that instead of showing his willingness to execute the sale deed after making his arrangements as was bounden in agreement (Ex. 1), the defendant sent notice to the plaintiff blaming him for not complying with the conditions & pre-requisites' of the sale and pointing out that he had forfeited the earnest money. All this correspondence leaves no room for doubt that it was defendant who had rescinded the contract without any justification. The contention that it was the plaintiff's duty to purchase stamps or to have a draft sale-deed prepared and to submit the same to the seller (defendant), in view of the agreement (Ex. 1) was not correct, inasmuch as since it had already been held that time was not of the essence of the contract, it was not essential that the preparation of the draft sale deed should have done before the registration of the sale-deed by the plaintiff. That apart, these facts do not justify an inference that the plaintiff was not ready and willing to perform his part of the contract. No reason is apparent why the plaintiff should change his mind and be not ready and willing to perform his part of the contract so as to lose substantial amount of sale consideration which he had already paid to the defendant, and subsequently why he brought the suit averring that he is willing and ready to perform his part of contract. Further more, even under Section 55(1)(d) of the Transfer of Property Act, it was the bounden duty of the defendant to execute a proper conveyance of the property when the buyer tendered it for execution. Further more, even under Section 55(1)(d) of the Transfer of Property Act, it was the bounden duty of the defendant to execute a proper conveyance of the property when the buyer tendered it for execution. No doubt, the onus of proving readiness and willing ness to perform his part of the contract lies on the plaintiff, but, as laid down in Abdullah Bey Chedid v. Tenenbaum, AIR 1934 PC p. 91 followed by this Court in Pakhar Singh v. Kishan Singh, 1973 RLW p. 611 , (supra), that onus, in the absence of any cvidence to the contrary, may even easily he discharged. Similarly, by virtue of section 51 of the Contract Act, it was not necessary for the plaintiff to perform his promise unless the defendant was ready and willing to perform his reciprocal promise, as agreed to by him in the agreement (Ex. 1). As the defendant was not willing to carry out his obligation under the law, it would have been a mere empty formality for the plaintiff to have tendered the conveyance even otherwise. As discussed above, in the case at hand, general considerations are in favour of the plaintiff's willingness and readiness. Thus, it was the defendant who was to blame for repudiating the contract and there is no reason why he should not be called upon to perform it specifically. In this view of the matter, there is no justification for the cross-objection at all and it is dismissed with costs. 14. However, this first appeal of the plaintiff is allowed to the extent of decree for specific performance of the contract for sale. The plaintiff's suit is decreed for specific performance of the contract for sale between vendor S. N. Khanna and the plaintiff, and the defendant is directed to execute the sale deed by joining in the conveyance so as to pass on the title of the disputed property which resides in him to the plaintiff, within two months from today in favour of the plaintiff on payment of balance sale consideration to defendant S.N. Khanna, in accordance with agreement (Ex. 1). If the defendant does not execute the sale deed within that time limit, the trial Court will execute and register the sale deed in favour of the plaintiff. The appellant will be entitled to his costs from the respondent in this appeal also. 15. 1). If the defendant does not execute the sale deed within that time limit, the trial Court will execute and register the sale deed in favour of the plaintiff. The appellant will be entitled to his costs from the respondent in this appeal also. 15. To the above extent, the impugned judgment & decree is modified, reversing the findings arrived at under the issues which were adversely to the plaintiff. However, it is made clear that since the suit for specific performance has been decreed in favour of the plaintiff, the decree passed by the trial Court under issue No. 6 will be non est and thereby the plaintiff will not get any benefit out of that decree. 16. Cross-objection shall stand dismissed with costs to the plaintiff-appellant, as ordered above. 17. The record be sent back to the trial court.Appeal allowed and suit decreed for specific performance. Impugned judgment and decree accordingly modified. *******