JUDGMENT 1. - The instant first appeal arises out of the judgment and decree dated 7/5/1997 passed by the Additional District Judge No.4, Jaipur City, Jaipur (hereinafter referred to as 'the Trial Court') in Civil Suit No.85 of 1990, whereby the Trial Court had dismissed the suit filed by the appellant - plaintiff, seeking specific performance of the contract and permanent injunction against the respondents - defendants, however held that the appellant/plaintiff would be entitled to recover Rs. 60,000/- with interest at the rate of 18% per annum from 21/8/1980 till realisation from the respondents - defendants. 2. The short facts, giving rise to the present appeal, are that the appellant - plaintiff had filed the suit before the Trial Court on 30/4/1983, seeking specific performance of the agreement dated 21/2/1980, in respect of the suit plot bearing No.B-10, admeasuring 388.88 sq. yards situated at Sethi Nagar, Jaipur alleging inter-alia that the respondents-defendants had agreed to sell the said plot to the appellant for Rs. 1,26,425/- by executing the agreement dated 21/2/1980. It was further alleged that prior to the execution of the said agreement, the appellant plaintiff had already paid Rs. 30,000/- by way of demand draft on 18/12/1979 as an advance money. As per the terms of the agreement, the appellant-plaintiff was required to make further payment of Rs. 30,000/- within six months of the execution of the agreement or within 15 days of the completion of the construction of the roof over the basement portion, which was to be constructed by the respondents-defendants after getting the site plan approved from the U.I.T. It was also agreed between the parties that the cost of the construction was to be borne by the appellant. As per the case of the appellant-plaintiff, the appellant, in compliance with the terms of the said agreement, further paid a sum of Rs. 30,000/- by demand draft on 20/8/1980, however, the respondents did not perform their part of the contract, and did not get the plan sanctioned from U.I.T., nor put up construction of basement, nor obtained patta from U.I.T. and NOC from the Income Tax Department. The appellant-plaintiff therefore called upon the respondents to comply with the terms of the agreement and execute the sale deed in her favour by serving notice dated 22/8/1981, however, the respondents did not give any reply to the said notice. The appellant-plaintiff therefore called upon the respondents to comply with the terms of the agreement and execute the sale deed in her favour by serving notice dated 22/8/1981, however, the respondents did not give any reply to the said notice. According to the appellant, she again served another notice by registered post through her counsel on 14/3/1983, informing the respondents that she had already prepared the demand drafts of the balance amount to be paid to them for execution of the sale deed and calling upon them to execute the sale deed in her favour, however, the respondents did not respond to the said notice also. The appellant-plaintiff therefore had filed the suit seeking specific performance of the said agreement and permanent injunction in respect of the plot in question. 3. The said suit was resisted by the respondents-defendants by filing the written-statement however, while denying the allegations and averments made in the plaint, the respondents had admitted the execution of the agreement in question. According to the respondents-defendants, the approved site plan was handed over to the appellant on 8/12/1980, however, the appellant did not pay any amount towards construction nor had she started the construction. It was further contended that time was the essence of contract, and hence the agreement itself had stood cancelled and the earnest money had also stood forfeited. The respondents-defendants had subsequently amended the written-statement by incorporating certain new contentions inter-alia that a decree for partition in respect of the plot in question was passed by the District Court on 10/2/1987 in Civil Suit No.1185 of 86, filed by Smt. Anjalipuri, daughter of the respondent No.1, and that as per the said decree, she was entitled to ⅓rd share in the plot in question. The appellant-plaintiff had filed the rejoinder to the said written - statement alleging inter-alia that the decree of partition obtained by Smt. Anjalipuri was collusive and obtained with ulterior motive to frustrate the suit filed by the appellant-plaintiff. 4. The appellant-plaintiff had filed the rejoinder to the said written - statement alleging inter-alia that the decree of partition obtained by Smt. Anjalipuri was collusive and obtained with ulterior motive to frustrate the suit filed by the appellant-plaintiff. 4. The Trial Court from the pleadings of the parties had framed the following issues:- 1- D;k oknh i{kdkj ds e/; gq, lafonk dh ikyuk ds fy, lnSo bPNqd ,oa rRij jgh gS\ 2- D;k le; bl lafonk esa lkj Fkk\ 3- izfrdj D;k gksxk\ 4- D;k okfnuh eq0ua0 1185@86 muokuh vatyhiqjh cuke Jherh d '".kk lgxy o vU; cvnkyr Mh0ts0 t;iqj flVh esa ikfjr fMdzh rdklek ls ikcUn gS&izfroknh 5- D;k rudh la0 4 dk Qslyk cgd izfroknhx.k gks rks D;k nkok oknhuh gktk ckcr rdehy is'kjQy ugha gS\& izfroknhx.k 6- D;k Jhefr vatyhiqjh vko';d i{kdkj gS\ izfroknhx.k 5. It appears that after the examination of witnesses by the appellant-plaintiff, the respondents-defendants did not lead any oral evidence and hence their right to lead evidence was closed by the Trial Court. However, subsequently in view of the order passed by the Trial Court, an opportunity was given to the respondents to lead the evidence. At that juncture, the respondents again sought to amend the written - statement by filing the application under Order 6, Rule 17 of CPC, which came to be allowed by the Trial Court, granting liberty to the appellant-plaintiff to file the rejoinder. The Trial Court thereafter considering the amended written - statement and the rejoinder, framed two more issues as issue Nos.7 and 8, which read as under:- " 7- D;k tokcnkok fnukad 27-1-1997 esa c;ku ethn ds iSjk la[;k&5 esa o.kZukuqlkj okfnuh dks fMdzh rdklek dh tkudkjh fnukad 5-11-1988 ls gS) D;k Jherh vatyh ds ds lgxy dh iq=h gksus dh tkudkjh Hkh fnukad 21-2-1980 ls igys ls gS rFkk fQj Hkh nq?kZVuk ls uktk;t Qk;nk mBkus ds fy, oknhuh izfroknhx.k ls fnukad 21-2-1980 dks bdjkjukek fd;k) vr% bl vk/kkj ij okn (kkfjt gksus ;ksX; gS\ 8- D;k izfroknhx.k dks vatyh ds gd gdwdksa ds ckcr vk{ksi mBkus dk vf/kdkj gSa\ " 6. The Trial Court, after appreciating the evidence on record and submissions made by the respective counsels for the parties, dismissed the suit of the appellant-plaintiff vide the judgment and decree dated 7/5/1997, in which the Trial Court decided the issue No.1 against the plaintiff, whereas decided issue Nos.2 and 4 to 8 in favour of the plaintiff and against the defendants. The issue No.3 with regard to the relief clause was partly decided against the plaintiff by the Trial Court, by not granting the relief of specific performance of the contract, however, directing the defendants to repay the amount of Rs. 60,000/- with interest @ 18% per annum with effect from 21/8/1980 till realisation to the appellant. Being aggrieved by the same, the present appeal has been filed by the appellant-plaintiff. 7. At the outset, it may be stated that in view of the on going strike of lawyers for more than 60 days, the parties had chosen to appear party in person and had made there respective submissions. It was sought to be submitted by Mr. Bal Chand Agarwal - husband of the appellant that the respondents-defendants had committed breach of the terms and conditions of the agreement in question, whereas the appellant had not only paid Rs. 30,000/- in advance and Rs. 30,000/- after execution of the agreement, but had also shown her readiness and willingness to pay the balance amount and had cooperated the respondents-defendants to act as per the terms and conditions of the agreement. According to him, the respondents-defendants did not put up construction of basement which was required to be put up for getting patta from U.I.T. Taking the Court to the terms and conditions of the agreement, as also the notices given by the appellant to the respondents, he further submitted that the appellant had paid and was ready to pay the cost of the construction, however, the respondents, with malafide intention, did not carry out their part of the contract, and subsequently obtained a collusive decree of partition from the Court, colluding with Smt. Anjalipuri to show her ⅓ share in the said plot. 8. Per contra, the respondent No.2 Mr. Anil Sehgal vehemently submitted that the respondents were always ready and willing to perform their part of contract, however, the appellant did not pay the balance amount towards the sale consideration and also towards the construction. 8. Per contra, the respondent No.2 Mr. Anil Sehgal vehemently submitted that the respondents were always ready and willing to perform their part of contract, however, the appellant did not pay the balance amount towards the sale consideration and also towards the construction. He further submitted that the respondents had got the plan sanctioned from the competent authority in which the appellant had sought modification by adding basement and that the appellant had also not brought the cement nor had got the water connection for putting up the construction for which no fault could be found of the respondents. The respondent No.2 further submitted that the time was the essence of the contract in view of the condition Nos.4, 8 and 9 of the agreement and the appellant having failed to comply with the said condition, the agreement had become in-executable, more particularly in view of the decree of partition passed by the competent court. The respondent No.2 has relied upon the various judgments to show that the equity was in favour of the respondents and the appellant having committed breach of the terms and conditions of the contract, was not entitled to the specific performance thereof. 9. So far as the legal position is concerned, it is axiomatic to say that the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of Specific Performance. Right from the date of execution till date of decree he must prove that he is ready and has always been willing to perform his part of contract. A beneficial reference of the decision of the Apex Court in case of N.P. Thirugnandam (Dead) by LRs. v. Dr. R. Jagan Mohan Rao & Ors., (1995) 5 SCC 115 be made in this regard. It is also held by Apex Court in case of Man Kaur (dead) by LRs v. Hartar Singh Sangh, 2010(10) SCC 512 inter-alia that in order to succeed in a suit for specific performance, the plaintiff has to prove (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of obligations in terms of the contract. It is also further observed in the said case that even if the defendant had committed a breach, the plaintiff has to aver and prove that he was ready and willing to perform the essential terms of the contract, which were required to be performed by him ('other than the terms the performance of which has been prevented or waived by the defendant'), otherwise, there is a bar to specific performance in his favour. 10. It is also settled legal position that in a contract for sale of immovable property normally it is presumed that time is not the essence of the contract. Even if there is an express stipulation to that effect the said presumption can be rebutted. In case of Chand Rani v. Kamal Rani (1993) 1 SCC 519 , the Apex Court outlined the principle in para 19 as under:- "19. It is a well - accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language" 11. The Apex Court in the said decision, after discussing earlier decisions observed in para 25 as under:- "From an analysis of the above case - law 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 if it is not of the essence of the contract the court may infer that it is to be performed in a reasonable time if the conditions are 1. From the express terms of the contract; 2. From the nature of the property; and 3. Even if it is not of the essence of the contract the court may infer that it is to be performed in a reasonable time if the conditions are 1. From the express terms of the contract; 2. From the nature of the property; and 3. From the surrounding circumstances, for example : the object of making the contract" 12. In view of the afore-stated factual and legal position, following points arise for determination before this Court:- (i) Whether the appellant-plaintiff had proved that she was always ready and willing to perform her part of contract and that the respondents had committed breach of the contract in question? (ii) Whether the time was the essence of the contract? (iii) Whether the appellant was entitled to the compensation if the specific performance was not possible on account of the breach of the contract by the respondents? 13. In the instant case, the appellant-plaintiff had sought specific performance of the agreement dated 21/2/1980 - Ex.1, and therefore it would be beneficial to refer to the main conditions of the said agreement. As per the condition No.1 of the agreement, the sale consideration for the plot in question was fixed at Rs. 1,26,425/-. The appellant-plaintiff had already paid Rs. 30,000/- by way of demand draft on 18/12/1979, the receipt thereof was acknowledged in the agreement by the respondent No.1, for being adjusted towards the sale consideration, and it was further agreed in condition No.2 that an amount of Rs. 30,000/- shall be paid by the appellant on the completion of construction of the roof or within six months of the agreement. It was also agreed that if the said Rs. 30,000/- was not paid within 15 days of the completion of the roof, the agreement would automatically stand terminated. The appellant had to pay the balance amount on the completion of the construction of the first floor and at the time of registration being done in her favour. As per condition No.3, it was agreed that the respondent No.1- seller shall put up the construction on the said plot on behalf of the appellant-purchaser and the entire cost of construction shall be borne by the appellant. The time limit for the agreement was fixed for nine months as per condition No.4. As per condition No.3, it was agreed that the respondent No.1- seller shall put up the construction on the said plot on behalf of the appellant-purchaser and the entire cost of construction shall be borne by the appellant. The time limit for the agreement was fixed for nine months as per condition No.4. It was also agreed that the respondent No.1 - seller shall obtain the patta from U.I.T in respect of the plot in question and shall also bear the expenses for obtaining the NOC, whereas the appellant shall bear the expenses of the registration, as per the condition Nos.5 and 6. It was also agreed that the respondent No.1 shall deposit the fees and lease money with the U.I.T before 21/2/1980. It was also agreed in condition No.8 that if the appellant failed to get the registration done within nine months of the agreement, the respondent No.1 would be entitled to the interest @ 12% per annum on the remaining amount of sale consideration and the respondent No.1 would also be entitled to forfeit the advance money of Rs. 30,000/- + 30,000/- paid by the appellant; and if the respondent No.1 refused to get the registration done, she would pay the cost of Rs. 30,000/- over and above the amount paid by the appellant. It was also agreed that the time limit shall be deemed to be extended if the respondent No.1 failed to obtain patta and NOC from U.I.T. within the fixed time limit for any reason. It was lastly agreed in condition No.10 that the respondent No.1 shall execute power of attorney in favour of the appellant for obtaining the cement etc. from U.I.T. and also get the plans for construction sanctioned and that the period of nine months shall be counted from the date when the said plans were handed over to the appellant. The execution of the agreement and the terms and conditions of the said agreement have not been disputed by the parties. 14. Now, if the said agreement - Ex.1 is closely read, it seems that the suit plot was purchased by the respondents in the auction held by the U.I.T. and it was necessary to put up construction thereon, for which the respondents did not have the sufficient money, and therefore, they wanted to sell the said plot to the appellant. The appellant therefore had paid Rs. The appellant therefore had paid Rs. 30,000/- by way of draft on 18/12/1979 i.e. prior to executing the said agreement, and she had to further pay Rs. 30,000/- within six months from the date of the agreement, or on the completion of the construction of a unit, whichever was earlier. The appellant, in order to prove that she had performed her part of the contract and was ready to perform her part of contract till the filing of the suit, had examined herself as PW.1, Shri Dinesh Agarwal, the Estate officer as PW.2 and Shri Balchand Agarwal, husband of the appellant as PW.3. All the three witnesses examined by the appellant-plaintiff had stated inter-alia that the appellant had paid Rs. 30,000/- by way of advance and had further paid a sum of Rs. 30,000/- by way of demand draft within six months from the date of agreement as per the term of the agreement, and that the appellant was also ready to pay the balance amount. As per their version, the respondents did not get the plan sanctioned nor got the patta and NOC from the U.I.T. and did not execute the sale deed in favour of the appellant. As against that, the respondent No.1 had examined herself as DW.1, her son Anil Sehgal as DW.2, one Ravi Kumar as DW.3 and Smt. Rekha Sehgal W/o. Shri Anil Sehgal as DW.4. The respondent No.1 Smt. Radha Sehgal in her evidence had stated inter-alia that the said plot was purchased by her husband in one auction sale held by the U.I.T. She admitted to have executed an agreement and also admitted to have received Rs. 30,000/- prior to the execution of the agreement and Rs. 30,000/- subsequently after the execution of the agreement. However, according to her, the appellant-plaintiff had not performed her part of the contract. She had admitted that she had not got the patta from the U.I.T. as no construction was put up on the plot in question. DW.2 Anil Sehgal, who is present respondent No.2 herein, had also stated in his deposition that the plot was purchased by his father from U.I.T. in one auction sale and that his father had died in November, 1977, and thereafter, his mother Krishna Sehgal, his sister Anjali and he himself had become the owners of the plot in question. DW.2 Anil Sehgal, who is present respondent No.2 herein, had also stated in his deposition that the plot was purchased by his father from U.I.T. in one auction sale and that his father had died in November, 1977, and thereafter, his mother Krishna Sehgal, his sister Anjali and he himself had become the owners of the plot in question. He also had admitted the execution of the agreement in question in favour of the appellant. According to him, the proceedings for transfer the plot in their name after the death of his father were pending with the U.I.T. and that the plans for putting up construction thereof were sanctioned in December, 1980. According to him, the construction could not be made as the appellant failed to get cement, though he had executed letter of authority in favour of the appellant as agreed in the agreement. In the cross - examination, he had admitted that the sale deed could have been executed only if he had obtained patta and NOC and that patta and NOC could not be obtained as no construction was put up on the plot in question. He had stated that he did not remember whether his mother had received any notice from the appellant or not. 15. Thus, considering the overall evidence adduced by the appellant as well as the respondents, it emerges that the plot in question was not transferred in the name of the respondents when the agreement in question was executed by them in favour of the appellant. It further appears that though the appellant had paid Rs. 60,000/- as per the agreement, no active steps were taken by the respondents to put up the construction on the said plot, which was a condition precedent to obtain the NOC and patta from the U.I.T. Though it was sought to be contended by the respondents that the appellant did not get the cement nor paid the cost of the construction to the respondents, there is nothing on record to suggest that the respondents had anytime called upon the appellant to pay the amount for the construction. Since no construction was put up by the respondents, the patta and NOC was not given by the UIT. Since no construction was put up by the respondents, the patta and NOC was not given by the UIT. The respondents have also failed to prove that they had made any effort muchless serious effort to get the NOC and patta from the U.I.T. The notice-Ex.6 given by the appellant through her Advocate by registered post had also returned as the respondent No.1 had refused to accept the same as per the AD slip Ex.9 and 10. Thus, it clearly transpires that it was the respondents who did not perform their part of contract and committed breach thereof. 16. It further transpires that a decree of partition also came to be passed by the Court in the suit filed by Smt. Anjali Sehgal daughter of the respondent No.1 and sister of the respondent No.2, in which the Court had held that each of the three would have ⅓rd share in the suit plot. It was sought to be submitted on behalf of the appellant that the said decree was obtained by collusion with a view to frustrate the suit. There is some substance in the said submission made on behalf of the appellant, in as much as despite knowing fully well that Smt. Anjali had her share in the suit plot, the respondents entered into agreement with the appellant, and when the appellant filed the suit for specific performance, the decree of partition was obtained through Smt. Anjali Sehgal. Be that as it may, the said decree has not been challenged by the appellant nor the appellant had taken any further action against the respondents. Under the circumstances, the Court of competent jurisdiction having found that each of the respondents had only ⅓ share in the suit plot, the execution of the sale deed in favour of the appellant for the entire plot was also not possible. It is pertinent to note that even as on today, the patta and NOC have not been obtained from the U.I.T./J.D.A. by the respondents as no construction as such was put by the respondents as agreed between the parties. Thus, apart from the fact that the respondents had committed breach of terms of agreement, the execution of the agreement had also become impossible by virtue of the decree of partition passed by the Court pending the suit and on account of non obtaining of the NOC and patta by the respondents. 17. Thus, apart from the fact that the respondents had committed breach of terms of agreement, the execution of the agreement had also become impossible by virtue of the decree of partition passed by the Court pending the suit and on account of non obtaining of the NOC and patta by the respondents. 17. It was sought to be submitted on behalf of the respondents that time was the essence of the contract and the appellant had failed to perform her part of contract. As stated here-in-above, normally in case of sale of immovable property, time is not presumed to be the essence of contract unless such presumption is rebutted. In the instant case, though it was mentioned in condition No.4 that the time limit for agreement was 9 months, it was also stated in condition No.9 that the said time limit shall be deemed to be extended till the patta and NOC were obtained from U.I.T. Considering the other terms of the agreement also, it transpires that parties never intended to make the time as the essence of the contract. 18. In that view of the matter, the Court has no hesitation in holding that it was the respondents who had committed the breach of the terms and conditions of the agreement in question. However, the patta and NOC having not been obtained from the U.I.T., nor any construction as contemplated in the agreement having been carried out, it is not possible to pass the decree for specific performance in favour of the appellant. By virtue of decree of partition passed by the Court, it is also not possible to pass decree for the entire suit plot. At this juncture, it is required to be noted that as per the condition No.9, if the respondents - seller failed to get the registration done in favour of the appellant, they were liable to refund the amount paid by the appellant and Rs. 30,000/- by way of cost to the appellant. Hence, the interest of justice would be met if the appellant is compensated in terms of the said condition of the agreement. Since the appellant had admittedly paid Rs. 60,000/- towards the agreement, the respondents would be liable to pay the said amount plus Rs. 30,000/- i.e. Rs. 90,000/- with interest @ 18% per annum from the date of agreement i.e. 21/2/1980 till payment. 19. Since the appellant had admittedly paid Rs. 60,000/- towards the agreement, the respondents would be liable to pay the said amount plus Rs. 30,000/- i.e. Rs. 90,000/- with interest @ 18% per annum from the date of agreement i.e. 21/2/1980 till payment. 19. For the reasons stated above, the judgment and decree passed by the Trial Court is modified to the extent that the respondents shall pay Rs. 90,000/- with interest @ 18% per annum from 21/2/1980 till payment. The decree shall stand modified accordingly. The appeal stands partly allowed accordingly.Appeal Partly Allowed. *******