Judgment :- 1. This Second Appeal is directed against the judgment dated 15.07.1999 in A.S.No.41 of 1998 on the file of District Court, Vellore, reversing the judgment of trial court dated 25.09.1998 in O.S.No.313 of 1993 on the file of Sub-Court, Ranipet, and thereby, dismissing Plaintiffs suit for specific performance. Unsuccessful Plaintiff is the Appellant. 2.The Plaintiff and Defendant are brothers. There is no dispute that Defendant entered into an agreement of sale (Ex.A1) agreeing to sell the suit property to the Plaintiff for a consideration of Rs.1,75,000/-. On 012. 1991, the Defendant had received a sum of Rs.10,000/- as advance. Execution of Ex.A1-Sale Agreement and receiving of Rs.10,000/- as advance are admitted. 3.Case of Plaintiff is that he was always ready and willing to perform his part of the contract. But, the Defendant has been evading execution of sale deed under false pretext. Plaintiff issued Ex.A2 notice dated 30.08.1993, calling upon the Defendant to execute the sale deed as per Ex.A1. The Defendant had issued Ex.A3 reply by referring to a Panchayat and cancellation of suit agreement of sale. Thereafter, Plaintiff filed a suit for specific performance. 4.Admitting execution of Ex.A1-Sale Agreement, Defendant filed a written statement contending that on 13.01.1993, a Panchayat was convened, in which, as per the decision of the Panchayatars, the Defendant had refunded the advance amount of Rs.10,000/- to the Plaintiff in the presence of Natesa Naicker and Kailasam. Since the agreement of sale was cancelled, Defendant is not bound to execute the sale deed. 5.On the above pleadings, relevant issues were framed. The trial court held that the time was not the essence of contract and Plaintiff was always ready and willing to perform his part of the contract. The Trial court rejected the defence plea that there was Panchayat on 13.01.1993 and the Defendant returned the advance amount to the Plaintiff. On those findings, the trial court decreed the suit for specific performance. 6.Aggrieved, Defendant has filed A.S.No.41 of 1998. Pointing out that under Ex.A1, three months time was stipulated and holding that Plaintiff has not proved continuous willingness, the Lower Appellate Court reversed the findings of the trial court and allowed the appeal. However, the Lower Appellate Court did not accept the defence plea that on 13.01.1993 there was a Panchayat and Defendant had repaid the advance of Rs.10,000/-. Pointing out that under Ex.A1, three months time was stipulated and holding that Plaintiff has not proved continuous willingness, the Lower Appellate Court reversed the findings of the trial court and allowed the appeal. However, the Lower Appellate Court did not accept the defence plea that on 13.01.1993 there was a Panchayat and Defendant had repaid the advance of Rs.10,000/-. 7.At the time of admission the following substantial question of law was formulated for consideration: "Whether the Lower Appellate Court is right in finding that the appellant had not been continuously willing to perform the contract in the circumstances of the case?" 8.Challenging the findings of the Lower Appellate Court, learned counsel for the Appellant contended that the Lower Appellate Court ignored the evidence and materials showing that the Plaintiff was always ready and willing to perform his part of the contract. It was further submitted that the Lower Appellate Court brushed aside the deposit of Rs.6,720/- for purchase of stamp papers and Ex.A6 proceedings issued by the Tahsildar, for refund of the said amount. Learned counsel further argued that granting the relief of specific performance is an ordinary rule, unless there is compelling reason to deny the same. In support of his contention, the learned counsel placed reliance upon number of decisions AIR 2006 SC 1144 ; AIR 2006 SC 2172 ; AIR 2008 SC 143 and AIR 2006 SC 970 . 9.Reiterating the findings of Lower Appellate Court, learned Senior counsel for the Respondent / Plaintiff Mr.Subramani, submitted that taking note of the location of the property and increase in price, the Lower Appellate Court rightly held that the time was not the essence of contract and rightly declined the discretionary relief of specific performance. The learned Senior counsel submitted that Plaintiff had nor proved his continuous readiness and willingness. 10.Admittedly, under Ex.A1-Sale Agreement dated 012. 1991, three months time was stipulated for the payment of balance consideration of Rs.1,65,000/- and for Plaintiffs performance of contract. As rightly pointed out by the Lower Appellate Court there was no evidence showing that Plaintiff had tendered the balance sale consideration within the stipulated period and was ready and willing to perform his part of the contract. 11.The stipulated time of three months expired on 06.03.1992. As rightly pointed out by the Lower Appellate Court there was no evidence showing that Plaintiff had tendered the balance sale consideration within the stipulated period and was ready and willing to perform his part of the contract. 11.The stipulated time of three months expired on 06.03.1992. But for the first time, the Plaintiff had issued Ex.A2 notice dated 30.08.1993 to the Defendant nearly one year and six months after the time stipulated under Ex.A1. According to PW1 / Plaintiff, he had funds to pay the balance sale consideration. But the Plaintiff had not offered or tendered the balance to get the sale deed executed within the reasonable time stipulated under Ex.A1. The Lower Appellate Court has recorded the finding of fact that the Plaintiff has no explanation as to why he did not pay the balance sale consideration and get the sale deed executed within the reasonable time. Referring to 1994 2 L.W. 634 (Jayaraman,B.K. Vs. S.K.Subramanian & Ors.), Lower Appellate Court held that presumption has to be drawn against the Plaintiff that he has abandoned his right under Ex.A1. 12.In Parakunnan Veetill Josephs Son Mathew v. Nedubara Kuruvilas Son, AIR 1987 SC 2328 , the Supreme Court has cautioned and observed as under: “.... 14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter in the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the Plaintiff." 13. In Gobind Ram v. Gian Chand (2000) 7 SCC 548 : AIR 2000 SC 3106 , the Supreme Court has observed that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the Court and the Court has to consider whether it would be fair, just and equitable. The Court is guided by the principles of justice, equity and good conscience. 14.The learned counsel for the Appellant contended that the court below, namely Lower Appellate Court erred in declining the discretionary relief of specific performance. The Court is guided by the principles of justice, equity and good conscience. 14.The learned counsel for the Appellant contended that the court below, namely Lower Appellate Court erred in declining the discretionary relief of specific performance. The learned counsel submitted that Plaintiff and Defendant being brothers, the agreement was only a formality and though time has been mentioned in the agreement, the parties did not intend to keep the time as the essence of contract. The learned counsel would further place reliance upon 1988 (2) SCC 488 , Indira Kaur (smt) V. Sheo Lal Kapoor, the learned counsel submitted that "The law is well settled that in transactions of sale of immovable properties, time is not the essence of the contract." 15. In 2008 (1) CTC 530, Balasaheb Dayandeo Naik (dead) through Lrs & ors vs. Appasaheb Dattatraya Pawar , the Honble Supreme Court has held: "It is clear that in the case of sale of immovable property, there is no presumption as to time being the essence of the contract. Even where the parties have expressly provided that time is the essence of the contract, such a stipulation will have to be read along with other provisions of the contract." 16.The Constitution Bench decision in Chand Rani V. Kamal Rani, 1993 (1) SCC 519 , also makes it clear that mere fixation of time within which contract is to be performed does not make the stipulation as to the time as the essence of contract. 17.In case of sale of immovable property, there is no presumption that time is the essence of contract. Whether parties intend to keep time as essence of contract would depend upon facts and circumstances of each case. In 2004(5) CTC 369: 2004 (8) SCC 689 , Swarnam Ramachandran (Smt.) and another v. Aravacode Chakungal Jayapalan, the Honble Supreme Court has held as follows: "12.That time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of reconveyance or renewal of leas. The onus to plead and prove that time was the essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence. The onus to plead and prove that time was the essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence. That when the Plaintiff pleads that time was not of essence and the Defendant does not deny it by evidence, the court is bound to accept the plea of the Plaintiff. In case where notice is given making time of the essence, it is duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. That a vendor has no right to make time as the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time as the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract." 18.Though, it was contended that EX.A1-Agreement of Sale was only a formality, the recitals in Ex.A1 would clearly manifest the intention of the parties to keep time as essence of contract. Three months time has been stipulated for performance. Even according to the Plaintiff, he has deposited the amount of Rs.6,720/- for purchase of stamp papers even on 012. 1991. Though, Ex.A1 does not contain default clause, intention of parties is to treat time as essence of contract. Though three months time was stipulated, Ex.A2 notice was issued on 30.08.1993 nearly one year and five months after the stipulated time. 19.According to the Appellant, even on 012. 1991, he has remitted Rs.6,720/-under the head of account "0030.Stamp & Registration-Non-Judicial, for the purpose of obtaining Non-Judicial stamp papers from the Sub-Treasury, Wallajah". Stating that due to personal reasons Plaintiff has not drawn Non-judicial stamp papers from the Sub-Treasury and under Ex.A6, Tahsildar, Wallajah has ordered refund of Rs.6,720/-. What seems to have substantially weighed in the mind of trial court is Ex.A6-Proceedings of the Tahsildar dated 16.06.1992 ordering refund of the amount of Rs.6,720/-, which the Appellant is said to have deposited for purchase of stamp papers. 20.While taking note of Ex.A6 for granting the decree, the trial court did not keep in view the inaction on the part of the Plaintiff, for more than one year. If really, Plaintiff was so ready with stamp papers even on 012. 20.While taking note of Ex.A6 for granting the decree, the trial court did not keep in view the inaction on the part of the Plaintiff, for more than one year. If really, Plaintiff was so ready with stamp papers even on 012. 1991, the Plaintiff could have taken the sale deed itself on 012. 1991, which was just two days after the sale agreement. The trial court on the basis of Ex.A6 was not right in arriving at the conclusion that the Plaintiff was always ready and willing to perform his part of the contract. The amount of Rs.6,720/- for purchase of stamp papers cannot amount to prove the essential ingredient of readiness and willingness as contemplated under Section 16(c) of Specific Relief Act. This is all the more so, when there is nothing in Ex.A6 to indicate that the amount of Rs.6,720/- has been deposited for purchase of stamp papers regarding Ex.A1 -Agreement of Sale. 21.Main plea of the Appellant is that he had sufficient means to pay the balance sale consideration. The learned counsel for Appellant contended that the Appellant being a lorry operator and that he is also one of the sharer in Kanchi Benefit Fund, being a man of means Plaintiff was having means to get the sale deed executed. 22.No doubt, Section 16 (c) of the Specific Relief Act provides that performance of a contract, cannot be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him, other than the terms, the performance of which has been prevented or waived by the defendant. Further Explanation (ii) therein also says that the Plaintiff must aver and prove readiness and willingness to perform, the contract according to the true construction. 23.In AIR 1996 SC 116 (Para 5) N.P.Thirugnanam vs. R.Jagan Mohan Rao, the Honble Supreme Court has held as follows:- "Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract" 24.In AIR 1995 SC 945 (Para 3) Jugraj singh Vs. Labh Singh, the Honble Supreme Court has held as follows:- "(A) Specific Relief Act (47 of 1963), Section 16(c) suit for specific performance of contract – Ready and willingness of Plaintiff – continuous readiness and willingness at all stages from the date of agreement till date of hearing of suit must be proved". 25.Drawing attention of Court to the pleadings, learned counsel for Appellant contended that there is pleadings and evidence to show that Plaintiff was always ready and willing to perform his part of the contract. "Readiness" means the capacity of the Plaintiff to perform the contract which include his financial ability to pay the purchase prices. But for determining his "willingness" to perform his part of the contract, Plaintiffs conduct has to be properly scrutinised. 26.Exs.A4, A5 and A8 might indicate that the Plaintiff had sufficient means to pay the purchase price. But as rightly observed by the Lower Appellate Court, "Readiness" to perform the contract is different from "Willingness" to perform the contract. To get the relief of specific performance, plaintiff has to prove two constituents, viz., readiness to perform contract and also willingness to perform the contract. Referring to evidence and conduct of the Plaintiff, Lower Appellate Court held that there is no lack of evidence showing continuous willingness on the part of Plaintiff to get the sale deed executed and there is no reason to take a different view. 27.Ex.A1-Agreement of Sale is dated 012. 1991. The suit was filed on 012. 1993 nearly two years after Ex.A1. No reason or explanation is forth coming for the delay in filing the suit. Plaintiff must establish that he was genuinely ready and willing to perform his part of the contract. In the case before us it is not mere delay. It is the case of total inaction on the part of Plaintiff for nearly two years which require him to pay the balance and get the sale deed executed within three months. In AIR 1996(1) MLJ 566 , Krishnasamy Naidu Vs.Ambrose, the Honble Supreme Court has held as follows:- "If really the Plaintiff was ready and willing to perform his part of the contract, there is no reason as to why he had not come forward with a suit for specific performance immediately after the period contemplated under the agreement and extended by the power of attorney of the first defendant expired". 28.In AIR 1978 SC 537 , Sandhyarani Vs. Sudha Rani, the Honble Supreme Court has held as follows:- "(D) Specific Relief Act (47 of 1963), Section 16(b) and (c) Specific performance of contract – Bars to relief – Inordinate delay on the part of Plaintiff to perform her part of contract – Decree for specific performance refused." 29.The learned counsel for the Appellant contended that there was no delay in filing the suit and even assuming that there was a delay in filing the suit in 1993, it cannot be a ground for refusing the relief of specific performance. In support of his contention, the learned counsel placed reliance upon 1994 (1) CCC (AP) 555, Sha Peerchand Vs Jandhyala Venkata Subramanya & Ors. 30.It is true that mere delay without such conduct on the part of the Plaintiff would cause prejudice does not empower the court to grant a relief of specific performance. In AIR 1965 SC 1405 , Satyanarayana Vs. Yelloji Rao, the Supreme Court has held as follows: "that mere delay without such conduct on the part of the Plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief of specific performance. There it has also been held that proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the Plaintiff, to the relief of specific performance, for if abandonment or waiver is established, no question of discretion on the part of the court would arise. It has been further held therein that it is not possible or desirable to lay down the circumstances under which the Court can exercise its discretion against the Plaintiff. But, they must be such that the representation by, or, the conduct or neglect of, the Plaintiff, is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." 31.As held by the Supreme court readiness and willingness has to be determined from the facts and attendant circumstances of the case. In the present case, the suit was filed nearly after two years, thereby inducing the Defendant to change his position. As held by the Supreme Court in 1997 3 SCC 1 K.S.Vidyanandam Vs. In the present case, the suit was filed nearly after two years, thereby inducing the Defendant to change his position. As held by the Supreme Court in 1997 3 SCC 1 K.S.Vidyanandam Vs. Vairavan, "The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the Plaintiff." Taking note of the conduct of the Plaintiff in not tendering the amount, lower appellate court rightly held that the delay in filing the suit would dis-entitle to get the discretionary relief of specific performance. 32.According to the Defendant on 13.01.1993, there was a Panchayat and in the presence of Natesa Naicker and Kailasam he has returned the advance amount of Rs.10,000/- to the Plaintiff. Both trial court and Lower Appellate Court by concurrent findings negatived the defence plea and the said concurrent finding is not to be interfered with. 33.Contending that escalation of price is not a ground for rejection of Plaintiffs case, learned counsel for the Appellant placed reliance upon 2000(4) CCC 85 (SC), Gobind Ram Vs. Gian Chand; P2001 (3) CCC 105 (SC) Mohamed Asgar Mohamed Mazhar & Anr. Vs Arvind Raghunath Sawant & Anr; 2002 (4) CTC 624, Nirmala Anand Vs. Advent Corporation (P) Ltd and others. 34.Though, increase in price may not be a ground for refusing decree for specific performance, escalation of price of the land will have to be necessarily kept in view. Referring to 1997(3) SCC 1 , Lower Appellate Court has held that courts cannot be oblivious to spiralling prices of immovable properties and inflation. Having regard to the location of the property near Wallajah in national highway, the Lower Appellate Court has rightly taken note of the fact of escalation of price of immovable property and on that score holding Plaintiff would not be entitled to the equitable relief of specific performance. 35.Upon appreciation of evidence and circumstance of the case and the conduct of the parties concerned, lower appellate court declined the relief of specific performance. When the Lower Appellate Court refused to exercise the discretion, the High court ought not to interfere with the discretion, unless the decision of the Lower Appellate Court is shown to be perverse. There is nothing to show that Lower Appellate Court ignored evidence and materials. No substantial question of law is involved in this Second Appeal and this Second Appeal is bound to fail. There is nothing to show that Lower Appellate Court ignored evidence and materials. No substantial question of law is involved in this Second Appeal and this Second Appeal is bound to fail. 36.In the result, the judgment of the Lower Appellate court in A.S.No.41 of 1998 on the file of the District Court, Vellore (arising out of O.S.No.313 of 1993 on the file of Sub-Court, Ranipet.) is confirmed and the Second Appeal is dismissed. Plaintiff is entitled to the refund of sale consideration deposited to the credit of the suit O.S.No.313 /1993 along with accrued interest. No costs.