PRADEEP NANDRAJOG, J. ( 1 ) THESE are three suits praying for a decree of specific performance of the agreement (s) of sale dated 4. 7. 1993. Raman Sharma is the plaintiff in suit nos. 1543/1996 and 1547/1996. Sanjeev Mehta is the plaintiff of suit no. 1544/1996. Defendants in the three suits are the wife and the two sons of late Shri K. C. Jhingan. Subject matter of the three agreements is property No. A-12, New Rajinder Nagar, New Delhi. Each defendant in the three suits has one-third undivided share in the suit property as the property was owned by late shri K. C. Jhingan and on his death his wife and two sons inherited one-third share each. Name of the three defendants was recorded as the joint perpetual lessee in respect of the plot of land for the reason late Shri K. C. Jhingan was a perpetual lessee of the plot under the Landdo. ( 2 ) EACH agreement is identically worded. The plaints and the written statements are identical save and except reference to the purchaser and the seller. ( 3 ) ON 4. 7. 1993, evidenced by a written receipt, the three defendants agreed to sell their respective one-third share in the suit property for a consideration of Rs. 6,60,000/- each. Each defendant received Rs. 1,66,666/- at the time of execution of the agreement. ( 4 ) RAMAN Sharma was the purchaser who had agreed to purchase one-third share of Somesh Chandra Jhingan and Sushen Chandra Jhingan. Sanjeev Mehta agreed to purchase the one-third share of Smt. Pushpa Jhingan. Contents of the three documents being identical, I may note the document executed by Somesh chandra Jhingan. The same reads as under:-"i, Sh. Somesh Chandra Jhingan S/o Late Sh. K. C. Jhingan R/o D-45 Moti Nagar, n. D. co-owner of property bearing No. A-12, New Rajinder Nagar, New Delhi hereby agree to sell my undivided 1/3 share in the above said property to Mr. Raman sharma S/o Sh. Rajinder Kr. Sharma R/o 233, Titarpur Flats, MIG, Rajouri Garden for the total sale consideration of Rs. Six Lakh Sixty Thousand only, out of which I have received a sum of Rs. 166666/- (One Lakh Sixty Six Thousand Six hundred Sixty Six only) to-day from the said buyer Shri Raman Sharma I shall receive another Rs. Raman sharma S/o Sh. Rajinder Kr. Sharma R/o 233, Titarpur Flats, MIG, Rajouri Garden for the total sale consideration of Rs. Six Lakh Sixty Thousand only, out of which I have received a sum of Rs. 166666/- (One Lakh Sixty Six Thousand Six hundred Sixty Six only) to-day from the said buyer Shri Raman Sharma I shall receive another Rs. Four Lakh Fifty Thousand on or before 30th of September 1993 and the remaining balance of Rs. Twenty Five Thousand shall be received by me after getting I. T. C. clearance and sale permission from competent Authority. Since the Said house is occupied by Shri Harish Chandra from the last Twelve years therefore it shall be the duty of the said Buyer to deal with the Said occupants to get the house vacated amicably or through the Court of Law. The said Seller is not responsible for the same since the Said property is sold on as it is where it is basis all the house tax or Landdo dues/damages if any shall be paid by me till the sale deed is executed. The Said House may be bought by the Said Sh. Raman Sharma Buyer in his name his heirs name or in the name of any of The nominee for which I have no objection. This deal is executed today at New Delhi. Sd/-S/o Late Sh. K. C. Jhingan r/o D-45, Moti Nagar, new Delhi 04 July 1993 sd/- (Rajinder Nath Trikha)S/o Late Duni Chand Trikha r/o 1453, S. P. Mukherjee Marg, delhi-06. Sd/-Sunil Kumar Sharma s/o Sh. Jugal Lal Sharma r/o EG-72, Inder Puri, new Delhi-12" ( 5 ) CASE of the plaintiffs is that they were always ready and willing to pay the balance sale consideration by 30. 9. 1993, in compliance with their obligation under the agreement, but the defendants stated that they were not in a position to execute the sale deed. That on 8. 1. 1994 plaintiffs got prepared pay orders in sum of Rs. 1. 85 lacs each in name of the three defendants. These were tendered to Smt. Pushpa Jhingan and Shri Sushen C. Jhingan who was also acting as the attorney of Shri Somesh C. Jhingan. That on 8. 1. 1994 plaintiffs got prepared pay orders in sum of Rs. 1. 85 lacs each in name of the three defendants. These were tendered to Smt. Pushpa Jhingan and Shri Sushen C. Jhingan who was also acting as the attorney of Shri Somesh C. Jhingan. The two refused to accept the pay orders stating that Somesh C. Jhingan was posted in a field area and they would receive the amount in his presence and that all three would sign/execute the necessary papers. That since defendants did not come forward to execute the sale deeds, plaintiffs served a legal notice dated 26. 11. 1995. Defendants were called upon to execute the sale deeds. There was no response. Plaintiff's learned through propety dealers in the area that defendants had approached them to find a buyer for the property. Thus, plaintiffs were left with no option other than to file the three suits. ( 6 ) DEFENCE is identical in the three suits. It is stated that the plaintiffs did not come forward to pay the balance sale consideration as agreed to. Defendants had forfeited the earnest money received. It is pleaded by the defendants that due to increase in the price of the property in the year 1995, plaintiffs awoke from their slumber and thereafter filed the three suits to grab the property of the defendants. ( 7 ) IDENTICAL issues were framed in the three suits on 13. 2. 2001. The issues read as under:-"1) Whether the plaintiff proves that by writing dated 4. 7. 1993, defendant agreed to sell immovable property bearing No. A-12, New Rajinder Nagar, New delhi" 2) Whether the plaintiff is and was ready and willing to perform his part of contract" 3) To what relief, if any, the plaintiff is entitled to. " ( 8 ) PARTIES have led evidence. Plaintiffs, besides examining themselves have examined the two attesting witnesses who are common in all three cases. ( 9 ) I need not discuss evidence of the attesting witnesses for the reason I do not find any plea in the written statements that the defendants did not sign the writings dated 4. 7. 1993 which records the agreement between the parties. I am a little surprised at the issues framed for the reason issues have to be framed on questions of law and fact in respect whereof parties are at a variance. 7. 1993 which records the agreement between the parties. I am a little surprised at the issues framed for the reason issues have to be framed on questions of law and fact in respect whereof parties are at a variance. In the written statement, defendants have not denied having executed the writings dated 4. 7. 1993. Defence taken is that since the plaintiffs did not comply with essential requirements of the transactions, the same never became operative as the plaintiffs never acted upon the same. It is further pleaded that since the plaintiffs did not comply with the terms of the agreement the same stood cancelled. ( 10 ) IF that be so, issue No. 1 is wholly redundant. One has to be careful while framing issues for the reason, as in the instant case, unnecessary and redundant evidence is recorded and ultimately the court finds that on the pleadings of the parties, the issue ought not to have been struck inasmuch as parties are not at variance with each other on the said point. ( 11 ) INDEED, Shri M. S. Vinayak, learned counsel for the defendants conceded that it was not the defence taken in any suit that the writing dated 4. 7. 1993 was not executed by the defendants or that it did not constitute an agreement. I accordingly hold that issue No. 1 is wholly redundant. Defendants have admitted having executed the writing dated 4. 7. 1993 as per which defendants agreed to sell their one-third share each in the suit property. ( 12 ) ISSUE No. 2 is the real issue between the parties. Its decision would encompass the defence whether plaintiffs took no steps to comply with their obligations under the agreement to sell and, therefore, defendants were justified in cancelling the same. The issue would encompass the stand of the plaintiffs that they were ready and willing and in fact took steps to comply with their obligations under the agreement to sell. ( 13 ) RAMAN Sharma and Sanjeev Mehta who appeared as their own witnesses stated that on 8/1/1994, 3 pay orders in sum of Rs. 1. 85 lacs each in name of the three defendants were prepared. The pay orders were tendered by the plaintiffs along with the balance payment. ( 13 ) RAMAN Sharma and Sanjeev Mehta who appeared as their own witnesses stated that on 8/1/1994, 3 pay orders in sum of Rs. 1. 85 lacs each in name of the three defendants were prepared. The pay orders were tendered by the plaintiffs along with the balance payment. That since defendants did not come forward to execute the sale deeds they caused to be served upon the defendants a legal notice dated 26/11/1995 being Ex. P-3. ( 14 ) EXAMINATION in chief of the plaintiffs is by way of an affidavit. Facts deposed by the two, pertaining to preparation and tender of pay orders dated 8/1/1994 in para 4 is as under:-"4. That a photocopy of pay order of Rs. 1,85,000/- dt. 08. 01. 1994 drawn on oriental Bank of Commerce, Rajinder Nagar Old Branch, New Delhi-110060 in favour of the Defendant is Exhibit 'p-2' which was tendered by the plaintiff along with the balance payment, as agreed. " ( 15 ) IN his cross examination, Raman Sharma admitted that as per the agreement dated 30. 9. 1993, he was to pay the balance sale consideration to the two defendants of suit Nos. 1543/1996 and 1547/1996. He stated that he took the money in cash apart from pay orders in sum of Rs. 1. 85 lacs and tendered the amount to the defendants who did not receive the same. When questioned how he carried the cash, he stated that he carried the cash in his pocket. I may record his cross examination for the reason, same is relevant for purposes of decision. The same reads as under:-"it is true that by 30th September, 1993 I was to give the balance money to the defendant. Q. I suggest to you that you did not make the payment of the balance amount by 30. 9. 1993. Ans. I went to give the money to the Defendant but he did not take it. I went in person to make the payment. There I met the mother of the Defendant mrs. Pushpa Jhingani. The money was in my pocket. Rs. 1,85,000/- was by way of bank draft and the rest in cash. I had made a draft of Rs. 1,85,000/- but I do not know whether it has been written in the plaint, may be it is written there. For the remaining two co-owners I took the money on the same day. The money was in my pocket. Rs. 1,85,000/- was by way of bank draft and the rest in cash. I had made a draft of Rs. 1,85,000/- but I do not know whether it has been written in the plaint, may be it is written there. For the remaining two co-owners I took the money on the same day. They also did not take. I do not know how I carried their money. All their money was in cash. Q. Earlier you stated that you were carrying their money for all the three people but were you carrying that money in your pocket only or somewhere else" ans. Now I remember that I carried some money with me and some money with mr. Sunil Sharma and some with Mr. Sanjiv Mehta. The cash was in fresh notes. There were new and old notes. I was carrying cash of Rs. 2,65,000/- in my pocket. Q. To carry that much cash you must have carried 26 bundles of 100 rupee notes of 100 each" ans. The cash was in 500 rupee notes. Q. During that period RBI had demoralised 500 rupee notes. Ans. I do not know, but I was carrying cash in 500 rupee notes. It is true that since I was carrying cash in 500 rupee notes, there were at least 5 bundles of 100 each. It is wrong to suggest that I did not go with cash on that day to the defendants. After that I have been visiting the Defendands quite often and they were avoiding me. " ( 16 ) THE three defendants have led evidence in rebuttal through Somesh chandra Jhingan. He agreed that he, his brother and their mother agreed to sell their one-third share in the suit property and receive Rs. 1,66,666. 00. He stated that further sum of Rs. 4. 5 lacs had to be paid to each one of them on or before 30/9/1993 and remaining amount due after income tax clearance was obtained by the defendants and they were in a position to execute the sale deed. He stated that since sum of Rs. 4. 5 lacs was not paid by 30. 9. 1993, sum of Rs. 1,66,666/-was forfeited by the defendants. In cross examination he admitted that neither defendant ever wrote any letter to the plaintiffs calling upon them to pay the balance sale consideration. He stated that since sum of Rs. 4. 5 lacs was not paid by 30. 9. 1993, sum of Rs. 1,66,666/-was forfeited by the defendants. In cross examination he admitted that neither defendant ever wrote any letter to the plaintiffs calling upon them to pay the balance sale consideration. He denied that plaintiffs have tendered the three pay orders on 8. 1. 1994 or offered any cash. ( 17 ) FROM the evidence led by the parties, it is apparent that neither plaintiffs nor the defendants communicated anything in writing to each other till plaintiffs got issued the legal notice dated 26. 11. 1995. As would be expected by any person who decides on an agreement, I begin by analyzing the agreement between the parties. ( 18 ) FOLLOWING is culled out from the agreement:- (a) Each defendant had one-third undivided share in the suit property which share was agreed to be sold to the plaintiffs for Rs. 6. 66 lacs. (b) Rs. 1,66,666/- was received when agreement was entered into on 4. 7. 1993. (c) Rs. 4. 5 lacs was payable to each defendant on or before 30. 9. 1993. (d) Balance sale consideration had to be paid after defendants obtain income tax clearance certificate. (e) That the property was occupied by one Shri Harish Chandra for the last 12 years and it was the duty of the plaintiffs to deal with the said occupant i. e. constructive possession had to be delivered. (f) A disclaimer stands recorded that the defendants are not responsible for any cloud and that the property was sold on as is where is basis. Page 5 of 7 ( 19 ) PLAINTIFFS have not denied their liability to pay the sum of Rs. 4. 5 lacs to each defendant on or before 30/9/1993. However, in their affidavit by way of evidence plaintiffs have nowhere deposed that on or before 30. 9. 1993 they tendered Rs. 4. 5 lacs to the defendants. Only assertion is para 4 of the affidavit of the two plaintiffs, contents whereof have been noted in para 16 above. The same records that on 8. 1. 1994, the pay orders along with balance sum was tendered in cash. It is obvious that plaintiffs have not established having tendered Rs. 4. 5 lacs to the defendants on or before 30. 9. 1993. The same records that on 8. 1. 1994, the pay orders along with balance sum was tendered in cash. It is obvious that plaintiffs have not established having tendered Rs. 4. 5 lacs to the defendants on or before 30. 9. 1993. ( 20 ) FROM the cross examination of Raman Sharma, contents noted in para 17 above, the story of tendering cash does not inspire confidence. Total amount payable to the defendants was Rs. 19. 8 lacs out of which Rs. 5 lacs was received by them when agreement to sell was entered. Balance amount payable was Rs. 14. 8 lacs. The three pay orders total upto Rs. 5. 5 lacs. Thus, Rs. 9. 25 lacs had to be in cash. Testimony of Raman Sharma, wherein at the first instance he stated that he was carrying the cash in his pocket immediately realised by him as unworthy of belief for the reason, he had to pay two-third of the said amount and it is impossible for anyone to carry this volume of cash in one's personal pocket, he changed the stand that some part of the cash was in his pocket and remaining was being carried by Sunil Sharma and Sanjeev Mehta in their pockets does not inspire confidence. His changed version that he was carrying Rs. 2. 65 lacs with him in his pocket is difficult to believe as he further stated that apart from bundles of notes in denomination of Rs. 500/- at least 5 bundles of notes in denomination of Rs. 100/- were being carried by him. It is difficult to believe that a person would be carrying with him in his pocket 5 to 8 bundles of notes, each bundle having 100 notes. ( 21 ) BUT that apart, if defendants did not receive the money on 8. 1. 1994, I see no reason why plaintiffs did not issue a letter, if not a legal notice, to the defendants notifying that the plaintiffs had come to pay the amount on 8. 1. 1994. It has been pleaded and attempted to be proved by the plaintiffs that due to field posting of Somesh, Sushen and his mother, Smt. Pushpa Jhingan did not receive the money stating that they would receive the money in presence of somesh. 1. 1994. It has been pleaded and attempted to be proved by the plaintiffs that due to field posting of Somesh, Sushen and his mother, Smt. Pushpa Jhingan did not receive the money stating that they would receive the money in presence of somesh. If this was so, I see no reason why plaintiffs did not follow up the matter after a reasonable period of time when Somesh was expected to be back home from the field posting. At this stage I may note that the three suits were filed on 29. 6. 1996 as limitation would have expired on 4. 7. 1996. The three suits have been filed 4 days prior to expiry of limitation. The three suits have been filed nearly 3 years after the execution of the agreement (s) to sell. ( 22 ) EVIDENCE of the plaintiffs that they tendered balance sale consideration on 8. 1. 1994 is unworthy of any credence. I do not believe that the plaintiffs tendered any balance sale consideration to the defendants, much less on 8. 1. 1994. Under the agreement to sell, payment had to be made in three stages. The first was at the time of execution of the agreement to sell. Further payment of Rs. 4. 5 lacs had to be made by 30. 9. 1993 and the balance when defendants obtained the income tax clearance certificates. ( 23 ) ASSUMING time was not of the essence of the contract and parties did not intend 30. 3. 1993 to be a material date, at best it would mean that within a reasonable time period of 30. 9. 1993, plaintiffs would pay Rs. 4. 5 lacs to each of the three defendants towards further sale consideration. ( 24 ) PLAINTIFFS have not led any evidence of their means i. e. save and except sum of Rs. 5. 55 lacs available with the plaintiffs when 3 pay orders were got prepared. There is no evidence that the plaintiffs were possessed of further sums of Rs. 4. 5 lacs. ( 25 ) A case close on facts is the decision of the Supreme Court reported as air 1997 SC 1751 , K. S. Vidyanadam and Ors. Vs. Vairavan. Total inaction on part of the purchaser for 2" years was held as act of breach by the purchaser. 4. 5 lacs. ( 25 ) A case close on facts is the decision of the Supreme Court reported as air 1997 SC 1751 , K. S. Vidyanadam and Ors. Vs. Vairavan. Total inaction on part of the purchaser for 2" years was held as act of breach by the purchaser. It was held that a time limit prescribed under the agreement for a party to take steps may not amount to making time the essence of the contract but it must have some significance. In that, within a reasonable period of time of the specified date, the obligation must be performed. ( 26 ) I accordingly decide issue No. 2 in favour of the defendant and against the plaintiffs and hold that the plaintiffs have not established that they were at all material times ready and willing to perform their obligations under the agreement to sell. In view of decision on issue No. 2, pertaining to issue No. 3 relief of specific performance has to be declined. However, would the plaintiffs be entitled to refund of the amounts received by the defendants" ( 27 ) SHRI M. S. Vinayak, learned counsel for the defendants urged that sum of rs. 1,66,666/- received by the three defendants when agreement to sell was entered into was an earnest money and since plaintiffs are in breach of the agreement, defendants are entitled to forfeit the said amount. A perusal of the agreement between the parties shows that it has not been recorded that the sum of Rs. 1,66,666. 00 was paid by the plaintiffs to the defendant towards earnest money. The agreement does not record that if plaintiffs failed to comply with their obligations under the agreement the said amount is liable to be forfeited. ( 28 ) IT is trite that where money is paid as earnest money to secure due performance of an obligation under a contract, alone can the said amount be forfeited for breach of terms of the contract. The agreement between parties does not evidence that the sum received by the defendants is to secure due performance of the obligations of the purchasers. ( 29 ) DEFENDANTS have themselves pleaded that there has been a tremendous price rise and due to price rise, plaintiffs are trying to enforce a dead agreement. The agreement between parties does not evidence that the sum received by the defendants is to secure due performance of the obligations of the purchasers. ( 29 ) DEFENDANTS have themselves pleaded that there has been a tremendous price rise and due to price rise, plaintiffs are trying to enforce a dead agreement. In the teeth of said admissions of the defendants, question of defendants suffering any loss due to breach of agreement by the plaintiffs does not arise. Thus, defendants cannot retain the said sum of Rs. 1,66,666. 00 received by them at the time of entering into the agreement to sell. ( 30 ) I decide issue No. 3, by holding that the defendants are liable to refund the sum of Rs. 1,66,666. 00 to the plaintiffs. I accordingly pass decree in favour of the plaintiffs of the three suits and against the defendants in the three suits in sum of Rs. 1,66,666. 00 together with pendente lite and future interest @ 9% p. a. till said amount is received by the plaintiffs from the defendants. In the facts and circumstances of the case (s), I leave the parties to bear their own costs.