Judgment : K. Ramanna, J. The appellant/plaintiff has come up with this second appeal challenging the legality and correctness of the judgment and decree dated 26.2.1994 passed by the principal Munsiff, Mudhol, in O.S. No. 195/ 1991, which has been confirmed by the learned Civil Judge (Senior Division) at Jamakhandi in R.A. No. 40/1994, dated 10.2001. 2. For the sake of convenience the parties will be referred to in their rank assigned to them before the trial Court. .3. The brief facts of the case in a nutshell are that; the plaintiff has filed the suit against the defendant before the trial Court seeking for the relief of specific performance of the agreement of sale/Ex.P.1 and for other allied relief. It is the case of the plaintiff that, defendant is the owner of the suit plot No.43 measuring 60 x 60, out of non agricultural land RS No.554 of Mudhol and that he had agreed to sell the same to the plaintiff for Rs.18,400/- and accordingly he entered into agreement of sale/Ex.P.1, dated 9.4.1990 by receiving earnest money of Rs.2,000/-, further that plaintiff also paid defendant Rs.3,000/- on 16.4.1990 out of balance sale consideration amount and obtained stamped receipt/Ex.P.2; that plaintiff asked defendant to execute registered sale deed in his favour after taking the balance amount of Rs.13,400/- and give possession of the suit plot to him; that the defendant prayed for time till one year; that during the May 1991 plaintiff asked the defendant to execute registered sale deed but he evaded, hence he issued the lawyers notice/Ex.P.3, dated 35.1991 calling upon the defendant to execute the sale deed by receiving balance consideration amount, but defendant gave false reply/Ex.P.4; that he is ready and willing to perform his part of the agreement under Ex.P.1. Hence he filed the suit. 4. On appearance before the trial Court defendant filed written statement and contested the suit admitting the execution of the agreement/ Ex.P.1 and the receipt of advance sale consideration of Rs.5,000/-, but contended that time was the essence of contract and that as per the agreement/Ex.P.1 the plaintiff ought to have taken the sale deed on or before 35.1990; that the plaintiff was not ready and willing to perform his part of the contract; that he forfeited the advance amount and the agreement came to be cancelled and he is not bound to act under the said agreement/Ex.P.1. Hence it is prayed to dismiss the suit of the plaintiff. 5. On the basis of the pleadings of the parties the trial Court in all framed 6 issues. The plaintiff in support of his case examined himself as P.W.1 and got examined two more witness as P.Ws.2 and 3 and got marked documents Exs.P.1 to 4. On behalf of the defendant, defendant himself examined himself as D.W.1 and also examined one more witness as D.W.2. The trial Court after considering the material evidence placed before it though rejected the prayer of the plaintiff for specific performance of agreement/Ex.P.1, decreed the suit of the plaintiff directing the defendant to repay the advance sale consideration amount of Rs.5,000/-with interest at 12% p.a. Being aggrieved by the said judgment and decree, plaintiff preferred R.A. No. 40/1994, wherein the defendant also filed cross-objection challenging the order of refund of earnest made by the trial Court. The learned Civil Judge after hearing the Counsels for the both the parties and considering the materials placed before it dismissed the appeal filed by the plaintiff, however the cross-objection filed by the defendant came to be allowed, modifying the order of refund made by the trial Court and accordingly it directed the defendant to repay the earnest money of Rs.5,000/-with interest at only 6% p.a. from the date of judgment and decree of the trial Court. Being aggrieved by the said judgment and decree the appellant/plaintiff, is in this appeal, under Section 100 CPC. .6. According, toappellant the findings recorded by the Courts blow hat he is not ready and willing to perform his part of the contract under agreement/Ex.P.1 is incorrect and illegal; that he is always ready and willing perform his part of the contract; that the Courts below erred in not believing the oral evidence of P.Ws.1 to 3; that when the Courts below have come to the conclusion that the time was not the essence of contract the suit of the plaintiff ought to have been decreed, instead dismissal of the prayer of the plaintiff for specific performance, which is totally incorrect and illegal. Hence it is prayed to allow the appeal by setting aside the judgment and decree passed by the Courts and to grant him the relief of specific performance of agreement/Ex.P.1. .7. Hence it is prayed to allow the appeal by setting aside the judgment and decree passed by the Courts and to grant him the relief of specific performance of agreement/Ex.P.1. .7. Heard the arguments of the Counsels for both the parties and perused the records, the substantial question of law that arises for my consideration is: .Whether the Courts below committed error in declining to grant relief of specific performance of the contract on the ground that the plaintiff was not ready and willing to perform his part of contract and the time was made essence of the contract? 8. Admittedly, suit property belongs to defendant and he entered into an agreement of sale with the plaintiff for a total consideration of Rs.18,400/-and agreement Ex.P.1 dated 9.4.1990 came to be executed by him by receiving an advance amount of Rs.2,000/-, further he also received from the plaintiff Rs.3,000/- out of balance sale consideration and executed receipt/Ex.P.2 dated 16.4.1990. According to defendant time was the essence of contract and that sale should be completed on or before 35.1990, but the plaintiff failed to get the sale deed within that period inspite of repeated request and demand made by the defendant as such the defendant who was in urgent need of money for the educational purposes of his son, forfeited the advance amount and cancelled the agreement/Ex.P.1. On the other hand, according, to plaintiff immediately after a month from the date of execution of agreement/Ex.P.1 he along with P.Ws.2 and 3 met defendant and requested him to execute sale deed in his favour, after receiving the balance sale consideration amount, but the defendant himself prayed for one year time, accordingly he waited for one year and thereafter issued legal notice dated 35.1991 calling upon the plaintiff to execute the sale deed in his favour. In support of his case apart from his oral evidence he placed on record the oral evidence of P.Ws.2 and 3, but their evidence is of not much consequence in the absence of any documentary evidence to this effect, there was no endorsement made on Ex.P.1 for extending the time by defendant by one more year. In support of his case apart from his oral evidence he placed on record the oral evidence of P.Ws.2 and 3, but their evidence is of not much consequence in the absence of any documentary evidence to this effect, there was no endorsement made on Ex.P.1 for extending the time by defendant by one more year. Moreover, P.W.2 is said to be the relative of P.W.1 and P.W.3 is said to be the friend of P.W.1, their evidence as to the approaching the defendant at his residence is contrary to each other, according to P.W.2 when they met the defendant at his house he was alone in his house, whereas according to P.W.3 there were several more persons in the house at that time. Further they failed to disclose the correct identity of the house of defendant. Moreover they have showed ignorance as to the readiness and willingness of the plaintiff to get the sale deed in his favour, also they have not stated any reason why defendant sought for one year time to execute the sale deed. Wherein fact, according to defendant he was in urgent need of money for the educational purpose of his son and that he has no reason to delay the execution of sale; that he along with D.W.2 approached the plaintiff to come forward to get the sale deed in his favour by paying the balance sale consideration amount but he evaded the same, the evidence of D.W.2 in his regard has not been disputed by the plaintiff and D.W.2 has deposed in clear terms that plaintiff was not ready and willing to perform his part of contract within the time stipulated under agreement/Ex.P.1. 9. Under the agreement/Ex.P.1 the time stipulated for completion of sale is 35.1990, both the Courts below after considering the material evidence placed before it have held that there was a time stipulated for performance of contract, but they were of the opinion that since the matter relates to immovable property and there were no forfeiture clause in Ex.P.1, both the Courts below have wrongly held that time was not the essence of the contract. Of course no doubt normally in case of an agreement of sale relating to immoveable property, time is not the essence of the contract, but where the agreement in clear terms provides for it without any ambiguity, the same cannot be ignored. Of course no doubt normally in case of an agreement of sale relating to immoveable property, time is not the essence of the contract, but where the agreement in clear terms provides for it without any ambiguity, the same cannot be ignored. As such the Courts below ought to have held that time was the essence of contract. 10. The question relating to whether time was the essence of the contract is relevant for the purpose of determining the question as to who has committed the breach of agreement. In the instant case there is specific recital in the agreement/Ex.P.1 that the sale should be completed within 35.1970 and according to defendant, plaintiff committed breach of it by not coming forward to get the sale deed in his favour by paying the balance sale consideration amount, inspite of his repeated request. However this evidence of defendant has been seriously disputed by the plaintiff and according to him he has not committed any breach of agreement and it was the defendant who refused to executed the sale deed in his favour, but for the reasons stated above I am of the opinion that it was the plaintiff who committed breach of agreement/Ex.P.1. Further, also there were no materials placed on record to show that the time stipulated under the said agreement/Ex.P.1 has been extended at any time, there was no such endorsement found on the said agreement/Ex.P.1 nor there any independent agreement entered into between the parties in this regard. So also, the plaintiff and his witnesses failed to give the reason why defendant sought for one year time to execute the regular sale deed in favour of plaintiff, a bare statement by the plaintiff and his witnesses that defendant refused to execute sale deed, without assigning any reasons, cannot at all be believed. If really the plaintiff was ready was willing perform his part of contract and if it was the defendant who sought for time to execute the sale deed in favour of plaintiff, the plaintiff ought to have got some endorsement to that effect on the said agreement Ex.P.1 or ought to have issued legal notice to the defendant calling upon him to come forward to execute registered sale deed in his favour after receipt of balance sale consideration amount. 11. 11. In view of the aforesaid discussions and reasoning, the plaintiff who has not did any act in furtherance of the said agreement/Ex.P.1, is not at all entitled to relief of specific performance of agreement/Ex.P.1 and he will not be put to any hardship or inconvenience if the prayer for specific performance is rejected. As such both the Courts below have rightly rejected the prayer of the plaintiff for specific performance of the agreement/Ex.P.1. Thus, I do not find any good grounds to interfere with the concurrent findings, recorded by the Courts below in this regard. .12. As for as refund of earnest money is concerned, admittedly the plaintiff paid in all Rs.5,000/-to .the defendant, even the defendant did not dispute the same. Further, since there is no recital in the agreement/ Ex.P.1 that in case of breach of agreement by the plaintiff, defendant is entitled to forfeiture of earnest money as such defendant is not entitled to forfeit the same. Accordingly both the Courts have rightly ordered for refund of earnest money with interest. Though trial Court wrongly imposed interest at 12% p.a. the lower Appellate Court considering the fact that the transaction is not a commercial transaction rightly reduced the rate of interest to 6% p.a., which also does not call for any interference. Hence viewed from any angle I do not find any good grounds to interfere with the judgment and decree passed by the Courts below. 13. Hence this appeal fails and is accordingly dismissed as devoid of merits. No costs.