JUDGMENT 1. - This first appeal under Section 96 CPC has been filed against the judgment and decree dated 6.8.2013 passed by Additional District Judge, Kishangarh, Distt. Ajmer in Civil Suit No. 58/2011 (34/2010) (102/2009) whereby a decree for specific performance and injunction has been passed against the appellants. 2. The brief facts of the case are that plaintiffs respondents filed a suit for specific performance of the contract and permanent injunction stating therein that appellants No. 1 and 2 agreed to sale five shops including basement and roof to the plaintiffs in the tune of Rs. 63 lacs and agreement was also executed on 27.8.2009 and plaintiffs paid Rs. 6,50,000/- cash to the appellants at the time of execution. It was further agreed between the parties that the entire payment shall be made on or before 30.11.2009 and the sale deed would be executed in favour of plaintiffs. It was further agreed that if plaintiffs failed to make compliance within the stipulated time period then the advance payment shall be forfeited and the agreement would be cancelled automatically and if the appellants did not execute the sale deed then he will return twice of advance money received by them. It was further sated that Rs. 10 lac as also been paid to the appellants on 3.9.2009 and total 16,50,000/- has been received by the appellants in-spite of this appellants did not execute the sale deed. A public notice was published on 6.12.2009 but the appellants did not execute the sale deed. The plaintiffs have stated that they are ready and willing to perform their part but appellants are denying the execution of the same hence suit has been filed. In written statements the appellants have admitted the execution of the agreement but the contentions were that the time was the essence of the contract, plaintiffs did not make the payment upto 30.11.2009, hence the agreement became cancelled and plaintiffs were not ready and willing to perform their part as per the condition of agreement and suit should be dismissed. In written statements the appellants have admitted the execution of the agreement but the contentions were that the time was the essence of the contract, plaintiffs did not make the payment upto 30.11.2009, hence the agreement became cancelled and plaintiffs were not ready and willing to perform their part as per the condition of agreement and suit should be dismissed. After considering the pleadings of the parties, the learned trial Court framed the following four issues: " 1- vk;k oknhx.k lafonk dh fofufnZ"Vk ikyuk djus ds fy, lnSo rS;kj&rRij Fks\ 2- vk;k oknhx.k us eqrkfcd iz'uxr bdjkj cspkuukesa dh 'krZ ds vuqlkj fnukad 30-11-2009 rd leLr Hkqxrku ugha dj mnklhurk fn[kkbZ] ftlds dkj.k oknhx.k }kjk vnk dh xbZ jkf'k tIr gks xbZ rFkk bdjkjukek Lor% fujLr gks x;k\ 3- vk;k iz'uxr bdjkjukek iathd'r ugha gksus ls lk{; esa xzkgkz nLrkost ugha gSa\ 4- vuqrks"k\ " 3. To prove his case, the plaintiffs have produced PW/1 Sanjay Garg, PW/2 Omprakash Rathi, PW/3 Ganesh Prasad Rathi and PW/4 Dinesh Garg and defendants have also produced DW/1 Padam Chand Kothari, DW/2 Virendra Kumar Kothari and DW/3 Deepak Jain. After completion of hearing the suit has been decreed, hence this appeal. 4. The contention of the present appellants is that the time was the essence of the agreement and till 30.11.2009, the money has not been paid to him, hence in terms of the agreement, it was automatically cancelled and decree for specific performance should not be passed and other contention is that respondents were not ready and willing to perform his part of contract, they were not having remaining sale consideration with them hence the court below has erred in passing the impugned decree.Per contra, the contention of the respondents is that time was not the essence of the contract, they were ready and willing to perform their part of contract, they have given legal notice to the appellants and also published a public notice, the court below has not framed any issue that the time was essence. The respondents were ready and wiling to perform their part and decree has rightly been passed, no interference is needed. 5. Heard the learned counsel for the parties and perused the judgment and decree under appeal as well as the original record of the case. 6. The execution of agreement to sell Ex.1 has been admitted by both the parties. The respondents were ready and wiling to perform their part and decree has rightly been passed, no interference is needed. 5. Heard the learned counsel for the parties and perused the judgment and decree under appeal as well as the original record of the case. 6. The execution of agreement to sell Ex.1 has been admitted by both the parties. The first contention of the appellants is that time was the essence of the agreement and it has been mentioned in the agreement that till 30.11.2009, the whole consideration should have been paid which has not been done by the respondents, hence the court below has committed grave illegality in passing the decree. 7. It is not in dispute that in Ex.1, it has been specifically narrated that till 30.11.2009, the whole sale consideration should have been paid to the seller and admittedly, consideration has not been passed to the seller till 30.11.2009 but the contention of the respondents is that in the case of contract for immovable property, the presumption is that time is not the essence and reliance has been placed on Balasaheb Dayandeo Naik (dead) v. Appasaheb Dattatraya Pawar, 2008 DNJ (SC) 226 and their contention is that by the attending circumstances, it could be inferred whether the time is the essence of the contract. Further reliance has been placed on Govind Prasad Charturvedi v. Hari Dutt Shastri & Anr., (1977) 2 SCC 539 wherein it has been held that in a contract relating to sale of immovable property it will normally be presumed that time will not be essence of the contract and on the strength of this, the contention of the respondents is that the time was not the essence of the contract. The respondents were ready and willing to pay balance amount but the appellants have refused to accept the amount. In this regard, PW/1 Sanjay Garg has stated that he was ready and willing to pay the amount and time was not the essence and he has also stated that many times he asked the appellants to take the payment and to execute the sale deed. In this regard, PW/1 Sanjay Garg has stated that he was ready and willing to pay the amount and time was not the essence and he has also stated that many times he asked the appellants to take the payment and to execute the sale deed. PW/2 Omprakash who has been examined as broker to the agreement has also stated that he talked to Padam Chand Kothari between 27.11.2009 to 1.12.2009 but nothing has been said that what transpired between the two persons and it has been objected by the appellants that PW/2 Omprakash Rathi is not the broker. It is true that he has not been shown as broker in Ex.1 and Ex.1 agreement clearly states that Ganesh Prasad PW/3 and Deepak Jain DW/3 are the brokers but stamps of Ex.1 has been purchased by Om Prakash and it can very well be concluded that Om Prakash has participated in the agreement. PW/3 Ganesh Prasad Rathi is the broker, he has sated that he has not talked to Padam Chand Kothari only Om Prakash has talked with him but as earlier considered what was transpired between the two has not been placed on record. PW/4 Dinesh Garg is not having any knowledge about the transaction and his contention is that his brother is having complete knowledge about the transaction. DW/1 Padam Chand Kothari has stated that time was the essence of the contract till 30.11.2009 the rest of the sale consideration was to pay which has not been paid to him. Deepak Jain, DW/3 who is the broker in the transaction has also confirmed the same fact and it has also been clearly stated in the agreement itself that till 30.11.2009, the whole consideration should be paid, hence it can safely be concluded that time was the essence of the contract and reliance has been placed on Chand Rani (Smt.)(dead) by LRs v. Kamal Rani (Smt.) (dead) LRs (1993) 1 SCC 519 wherein it has been held that whether time was the essence of the contract or not, for such no presumption exists it can be ascertained from express provision of the contract, nature of the property and surrounding circumstances. Further reliance has been placed on Coromandel Indag Products Pvt. Ltd. v. Garuda Chit & Trading Co. Further reliance has been placed on Coromandel Indag Products Pvt. Ltd. v. Garuda Chit & Trading Co. Pvt. Ltd. & Anr., (2011) 8 SCC 601 wherein it has been held that whether time is essence of the contract or not can be gathered only by the intention of the parties. Further reliance has been placed on Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates Pvt. Ltd. & Anr., (2011) 9 SCC 147 wherein it has been held that in case of contract relating to sale of immovable property, time is not normally of essence however, this is not an absolute proposition and has several exceptions. Further reliance has been placed on Sardamani Kandappan v. S. Rajalakshmi & ors., (2011) 12 SCC 18 where in relation to Section 55 of the Contract Act, it has been held that time will become the essence only with reference to payment of sale price and if payment schedule has not been made, the same would amount to breach of condition and decree for specific performance should not be ordered. Here in the present case, in Ex.1 specific condition is there that till 30.11.2009 the remaining amount should be paid to the appellants and admittedly it has not been paid, hence time has been made the essence of the contract and a very plausible cause has been given for the same as the property was already in possession of the respondents, they were tenants in the property and property has been sold to them, hence short term agreement has been executed on 27.8.2009 and the upper limit for payment has been fixed as 30.11.2009. A short duration which has been fixed for payment also makes it explicit that time was essence of the contract and furthermore, PW/1 Sanjay Garg himself has stated that he was ready and willing to pay the rest of the amount before 30.11.2009 and his broker Om Prakash has contacted the appellants for the same and Om Prakash has also stated so meaning thereby that the respondents were also of the view that the time is the essence and till 30.11.2009, they have to pay the remaining amount of sale consideration, the court below has erred in holding that the time was not the essence. 8. 8. The contention of the respondents is that no such issue has been framed before the court below that whether the time was the essence of the contract. Issue No.2 has been framed in this regard hence objection is unsustainable. Both the parties have placed the evidence before the court below and issue No.2 has been framed as regards to payment till 30.11.2009, hence after scanning the rival contentions and evidence of the parties, it can be concluded that time was the essence of the contract, it was duty of the respondents to pay rest of the sale consideration to respondents till 30.11.2009 which was not done by the respondents. 9. The other contention of the appellants is that respondents were never ready and willing to perform their part of the contract, they were not having requisite funds to pay the sale consideration. The contention of PW/1 Sanjay Garg-respondent is that they were ready and willing to perform their part of the agreement, they have also purchased the stamps for registry and also prepared a draft sale deed. In cross-examination, he has specifically accepted the fact that he has not placed any document which shows that they were having requisite amount in Bank or in cash to meet the sale consideration on 30.11.2009. No bank account or any kind of documents have been placed on record to show that they were having requisite amount, it was the duty of the respondents to pay the rest of the amount. Till 30.11.2009 they have not paid the amount to the appellants and even no notice for the same has been given to the appellants prior to 30.11.2009. Notice which has been served to the appellants is after the date 30.11.2009 has passed. It has been stated that draft for sale deed has been prepared but it has not been placed before the Court and never sent to the appellants. PW/1 Sanjay Garg has admitted that it was condition in Ex.1 that till 30.11.2009, the remaining amount should be paid. PW/2, Om Prakash has also shown ignorance that whether the respondents were having sufficient amount in bank or cash to pay the sale consideration. PW/3 Ganesh Prasad Rathi who is broker in the transaction has also shown ignorance as regards availability of sale consideration. PW/2, Om Prakash has also shown ignorance that whether the respondents were having sufficient amount in bank or cash to pay the sale consideration. PW/3 Ganesh Prasad Rathi who is broker in the transaction has also shown ignorance as regards availability of sale consideration. Surprisingly, PW/1 Sanjay Garg has stated that he get prepared the draft of the sale deed but PW/3 Ganesh Prasad Rathi has stated that he never read the draft sale deed. He has also admitted the fact that plaintiffs never served notice for getting registry to the appellants and furthermore, he has stated that appellants were happily ready to execute the sale deed which clearly goes against the case of the respondents. DW/1 Padam Chand Kothari has stated that remaining sale consideration has not been paid to him, hence registry could not be executed and his further contention is that respondents were not having the requisite amount to pay him and no draft sale deed has been sent to him, the notice was sent to him on 7.12.2009 which was of no use and public notice was also issued on 6.12.2009 after the expiry of stipulated time i.e. 30.11.2009. DW/3 Deepak Jain who is admittedly the broker in the transaction has specifically stated that respondents were not ready to execute the sale deed till 30.11.2009, they never tried to pay the money, no draft sale deed has been prepared and no copy has been given to the appellants, hence the evidence produced by the parties clearly show that respondents were not ready to pay the sale consideration. The court below has not appreciated the evidence in right perspective and the opinion of the court below was that it was not intended on the part of plaintiffs to show whether that they were having sale amount is against the settled proposition of law as laid down in N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao & ors., 1996 (1) CCC 27 (SC) wherein it has been held that the amount of consideration which plaintiff has to pay to the defendant must be proved to be available. It was duty of the respondents to prove that from the date of execution of agreement, they were ready and willing to perform his part of the contract which has not been proved in this case. It was duty of the respondents to prove that from the date of execution of agreement, they were ready and willing to perform his part of the contract which has not been proved in this case. Further reliance has been placed on Smt. Bismillah Begum (dead) by LRs v. Rahmatullah Khan (dead) by LRs. 1998 (1) Apex Court Journal 317 (SC). Reliance has also been placed on His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, 1996 (5) Supreme 159 wherein it has been held that if the plaintiffs had no financial capacity to pay consideration in cash as contracted, it could be held that he was not ready and willing to perform his part of the contract, it was the duty of the plaintiff to prove that he was ready and willing to complete his part of the agreement but admittedly, no notice has been given to the appellants to receive the amount, nothing has been done to pay the amount hence the respondents has utterly failed to prove that they were ready and willing to perform his part of the contract. The contention of the respondents is that they have purchased stamp for registry which shows their readiness and willingness to perform his part of the contract but appellants have placed reliance on Voleti Rangaiah v. Adapa Satyanarayana & ors., AIR 2001 AP 251 wherein it has been held that mere presence in Sub-Registrar office on the date is not sufficient to prove ready and willingness to perform the part of the contract if the requisite money has not been available or paid to the seller. Here in the present case, there is nothing on record to show that the respondents are having requisite money to pay the sale amount. 10. The other relevant factor in the matter is that respondents were already in possession of the property, they were tenants in the property. There was nothing in Ex.1 which has to be complied with by the appellants, only agreement speaks that remaining payment was to be made by the respondents, hence there was no reason for the appellants to deny execution if the respondents were ready and willing to pay the amount. There was nothing in Ex.1 which has to be complied with by the appellants, only agreement speaks that remaining payment was to be made by the respondents, hence there was no reason for the appellants to deny execution if the respondents were ready and willing to pay the amount. The contention of the respondents is that property has become costlier, hence the appellants were not willing to comply with the agreement, but it can only be fanciful argument in view of the matter that agreement has been executed on 27.8.2009 and the last date for compliance of agreement was 30.11.2009, meaning thereby that only 3 months have been fixed for fulfilment of the agreement and only in three months, it cannot be accepted that prices of the properties so hiked that the appellants are not willing to execute the sale deed in-spite of the fact that respondents were in possession of the property. The respondents has relied upon M.L. Devender Singh & ors. v. Syed Khaja, AIR 1973 SC 2457 wherein it has been held that if in agreement, the sum has been affixed for liquidated damages, it would not be a ground to deny specific performance of contract. There is no dispute about this legal proposition. Further reliance has been placed on Rameshwar & Anr. v. Hakim Mohd. Ibadullh Khan, 2006 (3) DNJ (Raj.) 1681 where plaintiff has served notice and shown his readiness and willingness to perform his part of the contract. Here in the present case admittedly, no notice has been given to the appellants prior to stipulated period i.e. 30.11.2009 which shows that the respondents were not ready and willing to perform his part of the contract. Further reliance has been placed on Narinderjit Singh v. North Star Estate Promoters Ltd., (2012) 5 SCC 712 where general principles has been laid down that the readiness and willingness of the plaintiff to perform his part of the agreement has to be decided with reference to the conduct of the parties, attending circumstances and evidence on record. Here in the present case, the evidence on record and conduct of the parties clearly shows that the respondents were not ready and willing to perform his part of the agreement. There was nothing on the part of the appellants to perform and before 30.11.2009, the respondents have not paid the rest of the amount. Here in the present case, the evidence on record and conduct of the parties clearly shows that the respondents were not ready and willing to perform his part of the agreement. There was nothing on the part of the appellants to perform and before 30.11.2009, the respondents have not paid the rest of the amount. Even it has not been shown that they were having requisite amount to pay the sale consideration and no constraints on the part of the appellants have been shown which clearly speaks that respondents were not ready and willing to perform his part of the contract and court below has not scanned the evidence in right perspective and findings of the court below are per verse on issue No.1 and 2 and both the issues stand decided against the respondents, in favour of the appellants. 11. In view of the above, the appeals succeeds and is allowed. The judgment and decree for specific performance and permanent injunction passed in favour of respondents is set aside. Rs. 10 lacs which has been paid on 3.9.2009 in excess to the advance money would be repaid by the appellants to the respondents along with interest @ 6% from 3.9.2009.Appeal Allowed-Excess Advance of Rs. 10 Lacs to be Repaid by Appellants to Respondents. *******