JUDGMENT Challenge in present Appeal preferred under Order 43, Rule 1(r) read with Section 104 of the Civil Procedure Code (For short CPC), is the order dated 29.4.2013 passed in Special Civil Suit No.73 of 2012 passed by the learned Principal Senior Civil Judge, Navsari, wherein pending hearing of the suit for the specific performance based upon agreement dated 6.8.2012 in favour of the plaintiff appellant in respect of the land property admeasuring 2-21-57 H-RA-Sq. Mtr. situated at Survey No.239/1 and Survey No.239/2 in the area of village : Vijalpore, Tal. Jalalpore, Dist. Navsari (now, it would be referred to as suit property), prayed to restrain the respondents from transferring, assigning, leasing, mortgaging or transferring in any manner and further to prevent from making any construction or to change the identity of the suit property till final disposal of the suit. Parties to the present proceedings would be referred to as per their status before the trial Court. 2. Brief facts leading to the present Appeal can be stated thus: 2.1 It is the case of the plaintiff that the defendants agreed to sell the suit property for total consideration of Rs.31 Crores. Out of which Rs.5.65 Crores was paid by the plaintiff and same was acknowledged by the defendants in agreement dated 6.8.2012 in clause 4 thereof. It is the say of the plaintiff that earlier agreement/MOU dated 19.4.2012 was executed, which was cancelled by consent and fresh agreement dated 6.8.2012 came to be executed (now, it would be referred to as suit agreement). It is the case of the plaintiff that first agreement dated 16.4.2012 was entered into between the parties for total consideration of Rs.21 Crores. According to the said agreement, it was agreed between the parties to the suit that if plaintiff fails to pay consideration before extended period, on 15.6.2012, the defendants would have right to sell suit property to any third party. It is case of the plaintiff that as the defendants could not determine the lease in favour of V.V.F. Industries, the said agreement was not materialized and therefore, the plaintiff did not pay the said consideration of Rs.21 Crores and therefore, the parties to the suit were compelled to execute the suit agreement dated 6.8.2012. Vide suit agreement dated 6.8.2012, total price of the suit land was raised from Rs.21 Crores to Rs.31 Crores. Vide suit agreement dated 6.8.2012, total price of the suit land was raised from Rs.21 Crores to Rs.31 Crores. It is one of the term in the agreement that the defendants will have to pay total consideration by 30.9.2012 and if the sale price is paid by 31.8.2012, then the plaintiff would be given discount of Rs.50 Lacs from the total price i.e. Rs.31 Crores and if the plaintiff does not pay by 31.8.2012, the sale price of Rs.31 Crores was to be paid by 30.9.2012. It is also case of the plaintiff that the defendants agreed that the earnest money paid to the defendants towards part payment of sale price will be kept separately by the defendants and will not be used or disposed off elsewhere to its business until deal is completed. 2.2 In response to the summons/notice by the trial Court, the defendants filed its reply below Exhibit 22 and by application Exhibit 25, the defendants applied for depositing earnest money into the Court received under the suit agreement from the plaintiff, which appears to have been rejected by the trial Court. After narrating various facts leading to the transaction in question, it is specific case of the defendants that on reading of the suit agreement, it is crystal clear that time was essence of the contract and such intention is evident from the express terms set out in the suit agreement. 3. Learned senior counsel Mr. S.N. Shelat for learned advocate Mr. S.M. Shah appearing on behalf of the appellant submits that the learned trial Court has failed to appreciate the provisions contained in Section 14(1)(c) and Section 10 of the Specific Relief Act (now, for short Act). It is submitted that Section 10 of the Act provides that normally Court shall presume that breach of the contract to transfer of immovable property cannot be adequately relieved by compensation in money. While taking this contention, further it is submitted that the trial Court has ignored the fact that the defendants have admittedly received sum of Rs.5.65 Crores towards the suit agreement which was for total consideration of Rs.31 Crores. While taking this contention, further it is submitted that the trial Court has ignored the fact that the defendants have admittedly received sum of Rs.5.65 Crores towards the suit agreement which was for total consideration of Rs.31 Crores. It is vehemently argued that time was never essence of the contract in respect of such a valuable property and learned trial Judge further failed to consider that though the plaintiff demanded various documents from time to time from the defendants, but the defendants failed to do so and therefore, learned trial Judge erred in holding that since there is clause for termination, no specific performance under Section 14(1)(c) of the Act can be granted. In support of his submissions, learned senior counsel Mr. S.N. Shelat placed reliance on the decisions in the case of Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass reported in AIR 2005 Supreme Court 104 and in the case of Zenit Mataplast P. Ltd. v. State of Maharashtra reported in 2009(10) SCC 388 : (AIR 2009 SC (Supp) 2364). 4. Per contra, learned senior counsel Mr. Mihir Joshi for M/s. Nanavati Associates appearing on behalf of the respondents submits that time is the essence of the contract and the same is eloquent on plain reading of the various terms of the suit agreement. According to him, the plaintiff promised to pay the balance consideration of Rs.25.35 Crores on or before 30.9.2012 unconditionally and such promise by the plaintiff was not dependent upon the performance of any obligation on the part of the defendants. Not only that, it is agreed by the parties to the suit that upon receipt of full sale price, the defendants were required to consider the legal formalities for perfecting the deal and vesting right, title and interest in the plaintiff within 15 days after receipt of full price i.e. 25.65 Crores. It is submitted that the plaintiff completed all required exercise in respect to the right, title or interest of the defendants and after having confirmed clear and marketable title of the defendants, the plaintiff entered into the suit agreement on 6.8.2012. In nut shell, it is submitted that the plaintiff was required to pay balance consideration by 30.9.2012 and it was further agreed that if the sale price is paid by 31.8.2012, in that event, the plaintiff was required to pay discounted price of Rs.30.50 Crores. In nut shell, it is submitted that the plaintiff was required to pay balance consideration by 30.9.2012 and it was further agreed that if the sale price is paid by 31.8.2012, in that event, the plaintiff was required to pay discounted price of Rs.30.50 Crores. On combined and cumulative reading various terms of the suit agreement, it would indicate that the time was essence of the contract and therefore, learned trial Judge has rightly rejected injunction application as the plaintiff failed to prove all the required ingredients of Order 39, Rules 1 and 2 of the CPC and more particularly, the provisions contained in Section 16(c) of the Act. In support of his submissions, learned senior counsel Mr. Joshi placed reliance on the decisions in the case of Sardamani Kandappan v. S. Rajalakshmi and others reported in (2011) 12 Supreme Court Case 18 : ( AIR 2011 SC 3234 ). 5. I have heard the submissions made by the learned senior counsels appearing for the parties and carefully examined the pleadings, documentary evidence placed on record for perusal of this Court and considered the principles laid down in the case-law cited at bar. 6. Before the submissions made by the parties are considered, it is relevant to produce the terms of the suit agreement to find out whether the time was essence of the contract or not. 7. Relevant recitals/conditions of the suit agreement namely recitals (c), (d), (e), (f) and (h) and conditions Nos.3 to 7 and 12 are reproduced as under: (c) Said Naik has learnt from the advertisement given by NOP in news paper and Broker that said NOP intends to sell and transfer it’s right in the said property and that said Naik intending to purchase and acquire the said property by way of sale and contacted said NOP in this regard. Said NOP has not made any statements and/or representation to said Naik in respect of it’s rights, title, interest and/or it’s entitlement to said property and/or it’s possession or otherwise. Said NOP has not made any statements and/or representation to said Naik in respect of it’s rights, title, interest and/or it’s entitlement to said property and/or it’s possession or otherwise. (d) Said Naik personally along with others representing him has visited, seen and inspected site of the said property and every piece and/or part thereof and has considered the same and satisfied himself about the physical situation or location and/or physical features of said property including that said property is fit and suitable for the purpose for which he intends to purchase and acquire said property and that he has exercised his judgment to purchase and acquire the said property after being fully satisfied with all aspects relating to the physical features of the said property. (e) Further, said Naik has or caused to have investigated the rights, title and interest of said NOP in the said property in all modes of investigation of title including by inspecting the title deeds of the said property and by inviting third party claims and/or objections on the said property by publishing such public notice in newspapers (to which said Naik has not received any claim and/or objection on said NOPâ„¢s title to the said property) and that the said investigation has been done by him personally and also through professional and/or experts on the subject of investigation of title. (f) Said Naik is satisfied on the basis of his investigation that title of said NOP to said property is clear and marketable and that there are no encumbrances on the said property. Said Naik will not administer any further requisitions upon said NOP in respect of itâ„¢s title to the said property. Said Naik will not do or cause to further investigate the said NOP’s title to the said property. Said Naik accepts said NOP’s title to said property. Said Naik will not raise or object or contend at any time hereafter that the title of said NOP to the said property was defective or that it was not clear and marketable and will not raise said contention to delay and/or avoid in making payment of the said price and/or to complete the sale of the said property. Said Naik admits and accepts that said NOP is in exclusive possession of the said property. Said Naik admits and accepts that said NOP is in exclusive possession of the said property. (h) Said Naik after having completed all due diligence and fact finding exercise in respect of the said property, had requested said NOP to sell and transfer all itâ„¢s rights, title and/or interest in said property to said Naik upon payment of sale consideration or sale price. Conditions : 3. Confirmed that said Naik has agreed to pay the sale price of Rs.31,00,00,000/- (Rupees thirty one crores only) to said NOP for purchasing the said property. Confirmed further that said Naik will pay the said price by 30 September, 2012 (due date). Confirmed further that if the said price is paid by 31st August, 2012, then said Naik will pay a discounted price of Rs.30,50,00,000/- (Rupees thirty crores fifty lakhs only), failing which, Rs.31,00,00,000/- (Rupees thirty one crore only) by 30 September, 2012 i.e. by the due date. 4. Agreed and acknowledged by said NOP that payment of sum of Rs.5.65 corers (Rupees five crores sixty five lakhs only) made by said Naik towards part payment of sale price mentioned in aforesaid Clause 3 will be kept separately by said NOP and will not be used or diverted elsewhere for their business until the deal is completed. 5. 4. Agreed and acknowledged by said NOP that payment of sum of Rs.5.65 corers (Rupees five crores sixty five lakhs only) made by said Naik towards part payment of sale price mentioned in aforesaid Clause 3 will be kept separately by said NOP and will not be used or diverted elsewhere for their business until the deal is completed. 5. Confirmed that if said Naik fails or neglects or refuses or is unable to make the payment of the said price by the said due date for any reasons whatsoever including an Act of God or an Act of State including any problem experienced or suffered by him in the course of his banking business qua his bankers, then, said NOP shall refund all money (without any interest) paid by said Naik to said NOP till the said due date within 15 days of the expiry of the said due date and upon such refund within 15 days from the said due date, this memorandum will be deemed to have been cancelled with retrospective effect from 01 October, 2012 without any further act, matter and/or thing by either party Further NOP will be entitled to deal with the said property with any third party upon refund to said Naik of the money received by NOP from said Naik from time to time towards the sale price recorded herein and that said Naik will not be entitled to object such dealing and/or make any claim and/or demand on the said property. 6. Agreed and admitted by the parties that time for payment of balance sale price by the said due date as recorded herein is the very essence and fabric for signing this memorandum. 7. Agreed and admitted by the parties that, upon receipt of full sale price, said NOP shall complete legal formalities for perfecting the deal and for vesting the rights, title and/or interest of said NOP in said Naik and/or his nominee within 15 days after receipts of full sale price. 12. 7. Agreed and admitted by the parties that, upon receipt of full sale price, said NOP shall complete legal formalities for perfecting the deal and for vesting the rights, title and/or interest of said NOP in said Naik and/or his nominee within 15 days after receipts of full sale price. 12. Agreed and admitted by parties that, apart from this memorandum, the parties have not entered into any other or further oral or verbal or written understanding, arrangement or agreement in respect of the said property and that neither party will be entitled to contend or plead any such other or further or oral or verbal or written understanding, arrangement or agreement in respect of the said property. 8. It is relevant to note that the plaintiff addressed letters dated 17.9.2012, 24.9.2012, 26.9.2012 and 27.9.2012 to the defendants, inter alia, stating that the plaintiff has kept the amount of Rs.25.35 Crores reserved with him, so as to pay on or before 30.9.2012. While saying so, the plaintiff demanded certain documents more particularly, prescribed in paras 3 and 4 of the letter dated 27.9.2012. Vide reply dated 4.10.2012, the defendants sent a cheque for Rs.5.65 Crores in the name of the plaintiff received by way of part payment. 9. Normally in the contract relating to immovable property, time cannot be the essence of the contract and time stipulated for performance even if expressly read and shown to be the essence requires to be read as not being essence of the contract and consequently, the contract relating immovable property does not become terminable by failure to perform before specified time. In the case on hand, whether time was the essence of the contract or not and to find out whether time was an essence of the contract, this Court will have to examine the express terms set out in the agreement. The first important term/condition is condition No.7. The said condition No.7 makes it clear that payment of the sale price was not dependent on the execution of the sale deed. Said condition in terms stipulates that while time would be the essence of the contract in regard to the terms relating to the payment of balance price, but time was not essence of the contract in regard to the execution of the sale deed. Said condition in terms stipulates that while time would be the essence of the contract in regard to the terms relating to the payment of balance price, but time was not essence of the contract in regard to the execution of the sale deed. So, there is clear intention making the time essence of the contract for the payment of balance price. Accordingly, as per condition No.7, the parties to the suit agreement agreed that the defendants shall complete legal formalities for perfecting the deal and for vesting the right, title and interest of the defendant in the plaintiff within 15 days after receipt of full sale price. So it is abundantly clear that the sale deed was to be executed only after payment of complete sale consideration on or before 30.9.2012 and the parties agreed to postpone the execution of the sale deed after 15 days of the receipt of the full price. 10. It has come on record that prior to the suit agreement, the defendants agreed to sell the suit property to the plaintiff in total consideration of Rs.21 Crores as per the agreement dated 16.4.2012. As per the said agreement dated 16.4.2012, it was agreed between the parties to the suit that if the plaintiff fails to pay full consideration before extended dated 15.6.2012, the defendants would have right to sell the suit property to any third party. Had it been time was not the essence of the contract then the plaintiff would not have entered into the suit agreement dated 6.8.2012, wherein the plaintiff agreed to pay the total consideration of Rs.31 Crores instead of Rs.21 Crores. This execution of the suit agreement in suppression of first agreement dated 16.4.2012 clearly indicates that as the plaintiff failed to pay the balance consideration within stipulated time, the plaintiff readily agreed to raise sale price from Rs.21 Crores to Rs.31 Crores. This is one of important attending circumstances needs to be kept in mind. 11. It is also relevant and significant to note here that as per condition No.3, the parties to the suit agreement confirmed that if the sale price of Rs.31 Crores is paid by 31.8.2012, then the plaintiff was required to pay discounted price of Rs.30.50 Crores failing which Rs.31 Crores by 30.9.2012 i.e. by the due date. 11. It is also relevant and significant to note here that as per condition No.3, the parties to the suit agreement confirmed that if the sale price of Rs.31 Crores is paid by 31.8.2012, then the plaintiff was required to pay discounted price of Rs.30.50 Crores failing which Rs.31 Crores by 30.9.2012 i.e. by the due date. It is one more reason to infer that the time is and was essence of the contract, hence, there was no reason for the defendants to give discount of Rs.50 Lacs to the plaintiff. 12. Now, coming to the various documents demanded by the plaintiff through various notices prior to the filing of the suit, it is evident that the plaintiff personally along with other representing the plaintiff visited and inspected the suit property and found himself satisfied about the physical situation and location. Not only that the plaintiff also investigated the right, title or interest of the defendants in the suit property and inspected the title of the suit property by inviting third party claim and/or objection in respect of the suit property by publishing the public notice in the newspaper. It is admitted by the plaintiff that he has done investigation of title personally or through professional and/or experts. The plaintiff investigated the right, title or interest of the defendants and thereafter, the plaintiff found himself satisfied that the suit property is clear and marketable and that there are no encumbrances on the suit property. In this connection, suffice to refer recitals (d), (e), (f) and (h). 13. On plain reading of condition No.6 of the agreement, it is evident that the parties to the suit have agreed and admitted that time for payment of balance sale price by due date as recorded hereinabove is the very essence and fabric for signing the suit agreement. So in view of specific recitals/conditions in the suit agreement, there is unconditional promise to pay the balance consideration latest by 30.9.2012 and such promise by the plaintiff was not dependent upon the performance of any obligation by the defendants and even also execution of sale deed. So in view of specific recitals/conditions in the suit agreement, there is unconditional promise to pay the balance consideration latest by 30.9.2012 and such promise by the plaintiff was not dependent upon the performance of any obligation by the defendants and even also execution of sale deed. The suit agreement specifically stipulates that if the plaintiff fails to pay balance price on or before 30.9.2012, then as per condition No.5 the defendants would pay the balance price within 15 days from the expiry of the due date part consideration without any interest and the suit agreement shall stand cancelled w.e.f. 1.10.2012. So keeping in mind the provisions contained in Sections 51, 52, 53, 54 of the Contract Act, it is clear that the suit agreement contains/stipulates that the plaintiff has to pay balance consideration latest by 30.9.2012 which was not dependent upon any performance or any obligation by the defendants. It is significant that the suit agreement did not stipulate that the balance of sale price shall be paid only after the plaintiff satisfied himself in regard to the title. So, considering overall frame of the suit agreement, only irreversible conclusion which can be drawn is such that the time was essence of the contract and the plaintiff failed to pay the balance sale price on or before 30.9.2012. Therefore, the defendants case is clearly covered by the decision rendered in the case of Shardamani Kandappan, ( AIR 2011 SC 3234 ) (supra). It is relevant to reproduce the observations made by the Hon’ble Supreme Court, more particularly, paras 28, 32, 35, 36, 37, 41, 42, 56 and 57 (Paras 19, 21, 23, 24, 25, 27, 36 & 37 of AIR) : 28. The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. If for example, the vendor discloses in the agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for payment to be the essence of the contract, that is, say, need to repay a particular loan before a particular date, or to meet an urgent time bound need (say medical or educational expenses of a family member) time stipulated for payment will be considered to be the essence. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, with reference to payment, time will be held to be the essence of the contract. 32. It is clear that the purchaser on the basis of whatever initial examination she had taken of the documents, had unconditionally agreed to pay the amounts in three instalments of Rs.1,00,000/- on or before 28.2.1981; Rs.1,00,000/- on or before 6.4.1981 and Rs.75,000/- on or before 30.5.1981; and if the purchaser was not thereafter satisfied with the title or found the title unacceptable and if the vendors failed to satisfy her about their title when she notified them about her dissatisfaction, the vendors had to refund all payments made within three months. Thus it is categorically made clear in the agreement that time regarding payment of balance price was the essence of the contract and such payment was not dependent upon the purchaserâ„¢s satisfaction regarding title. 35. It is of some interest to note that the distinction between contracts relating to immovable properties and other contracts was not drawn by section 55 of Contract Act (or any other provisions of Contract Act or Specific Relief Act, 1963). The Courts in India made the said distinction, by following the English law evolved during the nineteenth century. This Court held that time is not of the essence of the contracts relating to immovable properties; and that notwithstanding default in carrying out the contract within the specified period, specific performance will ordinarily be granted, if having regard to the express stipulation of the parties, nature of the property and surrounding circumstances, it is not inequitable to grant such relief. (vide Gomathinayagam Pillai, ( AIR 1967 SC 868 ), Govind Prasad Chaturvedi, ( AIR 1977 SC 1005 ), and Indira Kaur v. Sheo Lal Kapoor, ( AIR 1988 SC 1074 ) and Chand Rani, ( AIR 1993 SC 1742 ) following the decision of Privy Council in Jamshed Khodaram Irani v. Burjorji Dhunjibhai, (AIR 1915 PC 83) and other cases). Of course, the Constitution Bench in Chand Rani made a slight departure from the said view. 36. Of course, the Constitution Bench in Chand Rani made a slight departure from the said view. 36. The principle that time is not of the essence of contracts relating to immovable properties took shape in an era when market value of immovable properties were stable and did not undergo any marked change even over a few years (followed mechanically, even when value ceased to be stable). As a consequence, time for performance, stipulated in the agreement was assumed to be not material, or at all events considered as merely indicating the reasonable period within which contract should be performed. The assumption was that grant of specific performance would not prejudice the vendor-defendant financially as there would not be much difference in the market value of the property even if the contract was performed after a few months. This principle made sense during the first half of the twentieth century, when there was comparatively very little inflation, in India. The third quarter of the twentieth century saw a very slow but steady increase in prices. But a drastic change occurred from the beginning of the last quarter of the twentieth century. There has been a galloping inflation and prices of immovable properties have increased steeply, by leaps and bounds. Market values of properties are no longer stable or steady. We can take judicial notice of the comparative purchase power of a rupee in the year 1975 and now, as also the steep increase in the value of the immovable properties between then and now. It is no exaggeration to say that properties in cities, worth a lakh or so in or about 1975 to 1980, may cost a crore or more now. 37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and `non-readiness. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and `non-readiness. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and received rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees. 41. A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this court in K.S. Vidyanadam and others v. Vairavan, ( AIR 1997 SC 1751 ) (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani), ( AIR 1993 SC 1742 ). This Court observed: (SCC pp. 7 & 9, (pp 1754-1756 of AIR) paras 10 11) 10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect in the case of urban properties in India, it is wellknown that their prices have been going up sharply over the last few decades particularly after 1973..... 11. 11. .........We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties fuelled by large scale migration of people from rural areas to urban centres and by inflation..... Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties evolved in times when prices and values were stable and inflation was unknown requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. (Emphasis supplied) 42. Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to larger bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may. 56. As noticed above there is an unconditional promise to pay the balance consideration in three installments and the said promise by the purchaser is not dependent upon performance of any obligation by vendors. The contract specifically states that having paid the balance price, if the purchaser is not satisfied about the title and on being intimated about the same if the vendors fail to satisfy the purchaser about their title, all amounts paid towards the price should be refunded to purchaser. This clearly demonstrates that the payment of balance of sale price in terms of the contract was not postponed nor made conditional upon the purchaser being satisfied about the title, but that payment of the balance price should be made to the vendors as agreed unconditionally. In fact if the intention of the parties was that only after the vendors satisfying the purchaser about their title, balance consideration had to be paid, clause 12 would be redundant as the situation contemplated therein would not arise. In fact if the intention of the parties was that only after the vendors satisfying the purchaser about their title, balance consideration had to be paid, clause 12 would be redundant as the situation contemplated therein would not arise. Further, if that was the intention, the purchaser would not have paid Rs.1,00,000/- as further advance on 28.1.1981 and Rs.25,000/- on 2.4.1981. It is therefore clear that the contract does not expressly (or even impliedly) specify the order of performance of reciprocal promises, as alleged by the appellant. 57. The terms of the contract makes it clear that payment of sale price did not depend on execution of the sale deed. The sale deed was not required to be executed within any specific period. The purchaser had to fulfil her obligation in regard to payment of price as provided in clause 4 and thereafter vendors were required to perform their reciprocal promise of executing the sale deed, whenever required by the purchaser, either in her name or in the names of her nominees. The sale deed had to be executed only after payment of complete sale consideration within the time stipulated. In these circumstances, section 52 of the Contract Act does not help the appellant but actually supports the vendors-respondents. 14. So, in light of the specific terms stipulated in the suit agreement and principles laid down by the Hon’ble Apex Court in case of Shardamani, ( AIR 2011 SC 3234 ) (supra), learned trial Judge has rightly found that the time is the essence of the contract so far as present suit agreement is concerned. The plaintiff failed to fulfill obligation with regard to the payment of balance price as provided in condition No.3. There is no substance in submissions made by learned senior counsel Mr. S.N. Shelat to the effect that as the defendants failed to supply the documents as demanded in various notices, the plaintiff did not make payment of balance price though it was kept reserved. It is significant to note here that the legal notice issued by the plaintiff through advocate Mr. B.M. Nayak states that the plaintiff was ready and willing to perform the suit agreement dated 6.8.2012 and he was ready and willing to pay remaining full and final sale price of Rs. 25.65 Crores. It is significant to note here that the legal notice issued by the plaintiff through advocate Mr. B.M. Nayak states that the plaintiff was ready and willing to perform the suit agreement dated 6.8.2012 and he was ready and willing to pay remaining full and final sale price of Rs. 25.65 Crores. In order to establish this fact, the plaintiff has issued four letters dated 17.9.2012, 24.9.2012, 26.9.2012 and 27.9.2012 to the defendants. It is further stated in the said notice that the defendants miserably and deliberately failed to provide the documents demanded by the plaintiff. It is specifically admitted by the plaintiff in the said notice that he has never raised objection with respect to the title of the suit property. It is most relevant and significant to note here that vide para 3 of the notice, the plaintiff requested to provide documents as they are compulsory and mandatory to attach with the sale deed. For the sake of repetition, it requires to be noted here that as per condition No.7, the sale deed was to be executed after 15 days of the receipt of balance consideration. So, for the submissions made by Mr. S.N. Shelat for the plaintiff to the effect that as the defendants failed to provide said documents, the plaintiff did not pay balance price though it was kept reserved, does not seem to be either bona fide demand or excuse to postpone the balance payment to the defendants. 15. It is also required to be noted here that it is say of the plaintiff that the plaintiff has kept reserved balance amount as per notices dated 27.9.2012 vide notice dated 24.9.2012. It is also case of the plaintiff that he has forwarded draft of sale deed for verification and approval. In support of such fact stated in the notices, there is no iota of evidence placed on record, so as to infer that the plaintiff has balance consideration reserved with him on 27.9.2012. Though the plaintiff has placed reliance on Annexure G, which is certificate issued by the Chartered Accountant, which is for movable and immovable property of the plaintiff and his wife showing the position as on 27.3.2013. Though the plaintiff has placed reliance on Annexure G, which is certificate issued by the Chartered Accountant, which is for movable and immovable property of the plaintiff and his wife showing the position as on 27.3.2013. On the basis of such certificate, the Court did not find that the plaintiff has balance consideration of Rs.25 Crores on 30.9.2012, so as to establish that the plaintiff was ready and willing to perform his part of the suit agreement. Needless to say that the readiness and willingness is condition precedent to grant relief both at the final stage or even at the interlocutory stage in order to succeed in the suit for specific performance. The plaintiff needs to show that he has sufficient fund for payment in the event, if he is called upon to pay consideration of the suit agreement. Learned trial Judge rightly found that the plaintiff failed to meet with the requirements of Section 16(c) of the Act. So considering the true nature of the transaction and intention of the parties as well as circumstances attendant thereto and as also wordings/expressions used in the suit agreement, it is quite clear that the defendants were not required to discharge and/or perform any obligation on or before due date except receiving of balance consideration from the plaintiff. Learned senior counsel Mr. Shelat could not point out any recitals/conditions so as to construe as rendered ineffective express provisions relating to the time being the essence of the contract. Admittedly, there is no such condition that in the event of failure to pay balance price on 30.9.2012, part payment would be fortified. But on the contrary, condition No.5 in terms stipulates that the on expiry of due date, if the plaintiff fails to do pay the balance consideration, the defendants would refund the amount within 15 days thereafter and the suit agreement would stand cancelled with retrospective effect from 1.10.2012. Needless to say that the defendants issued a cheque of part payment in favour of the plaintiff and also requested the trial Court to accept the amount of part consideration received by the defendants as per application Exhibit 25. But as stated hereinabove, the said application was rejected. 16. So far as case laws settled in the cases cited by the learned senior counsel Mr. But as stated hereinabove, the said application was rejected. 16. So far as case laws settled in the cases cited by the learned senior counsel Mr. Shelat, are concerned, the same are not helpful to the plaintiff because no exceptional circumstances or ground shown to the Court so as to make out a case of irreparable loss likely to be suffered by the plaintiff. For the sake repetition, suffice to say that the plaintiff agreed to pay additional amount of Rs.10 Crores in span of months between first agreement dated 16.4.2012 and suit agreement dated 6.8.2012. Since the plaintiff could not establish the case of irreparable loss, therefore, the defendants cannot be prevented to enjoy the suit property in any manner. So considering all the pros and cons of the case in view of the set of facts in the case on hand and after examining the facts in view of law settled in case of Shardamani Kadappan, ( AIR 2011 SC 3234 ) (supra) and taking into account all the basic ground i.e. prima facie case, balance of convenience and irreparable loss, learned trial Judge has rightly refused the interim relief. Needless to say that if any transfer is effect pending the hearing of the suit, principle of lis pendens under Section 52 of the Transfer of the Properties Act would come into play. 17. Considering the intention of the parties gathered from various recitals/conditions of the suit agreement reproduced hereinabove, it is clear that the time was essence of the contract and further the plaintiff failed to establish before the trial Court that he was ready and willing to perform his part of the suit agreement. Thus, the plaintiff failed to satisfy the trial Court in regard to the existence of the ingredients for grant of interlocutory order of injunction namely prima facie case, balance of convenience and irreparable loss. 18. Last but not the least, as per condition No.4, it requires that the defendants should be directed to deposit amount of part payment received by them pending hearing of the suit so that they may not get unjust enrichment by enjoying the funds and on the other hand, if any party succeeds at the end of trial, such party may get amount of part payment with interest. Condition No.4 of the suit agreement, otherwise stipulates that till deal is completed, part payment shall be kept separately and shall not be used by the defendants. It is true that the suit agreement does not oblige the defendants to pay any interest, at the time of refund of part payment. It is also true that the defendants refunded part payment by cheque to the plaintiff on 4.10.2012 but the same was not accepted by the plaintiff. Similarly, the defendants filed application Exhibit 25 before the trial Court requesting to accept the amount of part payment, but the same was refused by the trial Court. In this situation and further considering condition No.4, whether the defendants have utilized the amount or not after 1.10.2012, is the subject matter of the evidence and in order to strike the balance, it is equitable and justifiable to direct the defendants to deposit the amount with 9% interest before the trial Court. 19. The present appeal is filed under the provisions of Order 43, Rule 1(r) of the Code and challenge in this appeal is the discretionary order passed by the trial Court under the provisions of Order 39, Rules 1 and 2 of the Code whereby, the learned trial Judge dismissed the injunction application Exhibit 5 for interim relief. If this Court elaborately deal with the matter on its own merits, it is likely that same would prejudice the case of either side. Therefore, it is also well settled law that the Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-original plaintiff has made out a prima facie case or not for grant of interim injunction. It is well settled law that the Appellate Court may not interfere with the exercise of discretion of the Court at first instance and substitute its own discretion except when the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or when the Court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. So, the Appellate Court cannot reassess the material and reach a conclusion different from the one reached by the Court. So, the Appellate Court cannot reassess the material and reach a conclusion different from the one reached by the Court. Keeping in mind the limited scope of present appeal, this Court is required to see whether discretion exercised by the learned trial Judge is perverse, arbitrary, capricious or against any settled principles of law or not? No such finding is shown so as to interfere with in the appeal. No further contentions have been raised by the learned senior counsel Mr. S.N. Shelat for the appellant. 20. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43, Rule 1(r) of the Code, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at interlocutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and decide the suit in accordance with law. 21. In view of the facts and circumstances of the case, the learned Principal Senior Civil Judge, Navsari, is directed to expedite the hearing of the suit and decide and dispose of the suit being Special Civil Suit No.73 of 201 (sic) within 6 months from the date of receipt of this order. 22. In view of the foregoing findings, no case is made out to interfere with the impugned order and therefore, Appeal stands dismissed with a direction to the defendants to deposit the amount of Rs.5.65 Crores with 9% p.a. interest from 1.10.2012 to till its deposit with the trial Court. 22. In view of the foregoing findings, no case is made out to interfere with the impugned order and therefore, Appeal stands dismissed with a direction to the defendants to deposit the amount of Rs.5.65 Crores with 9% p.a. interest from 1.10.2012 to till its deposit with the trial Court. The defendants shall deposit such amount within one month from the date of pronouncement of order and on amount so being deposited, the learned trial Court is directed to invest such amount in cumulative Fixed Deposit in the name of plaintiff, initially for a period of six months and thereafter, it shall renew the FDR from time to time till final disposal of the suit and original FDR shall be kept with registry of trial Court. It is made clear that the order of payment of 9% interest will remain subject to final outcome of the suit. CIVIL APPILCATION Nos.5491 of 2013 and 6735 of 2013 : In view of the dismissal of the main Appeal, the Civil Applications do not survive. Hence, the Civil Applications are disposed of. Notice is discharged. Interim relief, if any, grated earlier stands vacated forthwith. FURTHER ORDER : After pronouncement of the order, learned advocate Mr. S.M. Shah for the appellant makes a request to stay the operation of the order, so as approach the Honâ„¢ble Apex Court. Request is accepted. This order is stayed for a period of four weeks from today. Appeal dismissed.