JUDGMENT : 1. This appeal filed under Section 100 of the Code of Civil Procedure, 1908 has been heard on the following substantial question of law framed earlier: Whether the lower appellate Court committed error in the absence of clause or evidence for providing forfeiture of the earnest amount or any legal and valid reasons therefore could overturn the decree of the trial Judge? 2. The appellant is the original plaintiff who had filed suit for recovery of an amount of Rs.70,000/which was paid to the defendant no.1 pursuant to an agreement of sale entered into with her. This agreement of sale is dated 10-12-2000 by which defendant no.1 agreed to sell constructed portion standing on plot No.8A and 8B. As per this agreement, the total consideration fixed was Rs.2,80,000/and Rs.70,000/was paid as earnest money. The sale deed was to be executed by 30-11-2003. According to the plaintiff, the defendant no.1 did not execute the sale deed by said date. Various requests were made to the defendant no.1 to complete the transaction. Thereafter on 18-5-2006 a notice was issued to the defendant no.1 calling upon her to execute the sale deed. The plaintiff further learnt that portion of the suit house was sold to defendant no.2. Hence, on 23-11-2006, the plaintiff filed suit for refund of earnest amount of Rs.70,000/. 3. The defendant no.1 filed her written statement. The agreement in question was denied. It was pleaded that the plaintiff had come up with a false case. She pleaded that on 8-4-2005 half portion of the suit property was sold to the defendant no.2 and therefore, no relief could be granted to the plaintiff. 4. The parties led evidence and the trial Court held that the agreement dated 10-12-2000 had been duly proved. The payment of Rs.70,000/was also held to be proved. The trial Court further held that breach was committed by the defendant no.1 and, therefore, it passed a decree for refund of earnest amount with 6% interest. 5. Being aggrieved the defendant no.1 filed an appeal. The appellate Court held that though the agreement was proved, the breach was committed by the plaintiff. After holding that the plaintiff was not ready and willing to perform her part of the agreement, it held that the defendant no.1 was entitled to forfeit the amount of Rs.70,000/. On that basis the appeal was allowed and the suit came to be dismissed. After holding that the plaintiff was not ready and willing to perform her part of the agreement, it held that the defendant no.1 was entitled to forfeit the amount of Rs.70,000/. On that basis the appeal was allowed and the suit came to be dismissed. 6. Shri A. M. Sudame, learned Counsel for the appellant submitted that in the agreement dated 10-12-2000 (Exhibit 39) there was no clause permitting forfeiture of the earnest amount. He submitted that in the absence of any such agreement between the parties by which defendant no.1 could forfeit the earnest amount, the appellate Court was not justified in permitting such forfeiture. He further submitted that no evidence was led by defendant no.1 to justify forfeiture of the earnest amount. According to him, the aspect of readiness and willingness of the plaintiff was wrongly considered by the appellate Court while setting aside the decree passed by the trial Court. As the time was not the essence of the contract and defendant no.1 had sold out the suit property to defendant no.2 in breach of the agreement, the plaintiff was entitled for refund of earnest amount. He placed reliance upon the decisions of the Hon'ble Supreme Court in Balasaheb Dayandeo Naik Vs. Appasaheb Dattatraya Pawar (2008) 4 SCC 464 and Gian Chand Vs. Gopala and others (1995) 2 SCC 528 . 7. Shri P. R. Agrawal, learned Counsel for respondent no.1 supported the impugned judgment. According to him, the sale deed was to be executed by 30-11-2003 and though defendant no.1 was ready and willing to perform her part of the agreement, the breach was committed by the plaintiff. He submitted that the appellate Court rightly found that the plaintiff was not ready and willing to perform her part of the contract and therefore, forfeiture of the said amount was justified. He placed reliance upon the decisions of the Hon'ble Supreme Court in Satish Batra Vs. Sudhir Rawal (2013) 1 Supreme Court Cases 345, judgment in Civil Appeal No.5636 of 2017 (Jaswinder Kaur (now deceased) through her L.Rs. and Ors vs. Gurmeet Singh and Ors.) dated 18.4.2017, decision of the Calcutta High Court in Naresh Chandra Guha vs. Ram Chandra Samanta AIR 1952 Calcutta 93 and the decision of the Delhi High Court in Dr. Habibur Rehman Khan v. Naresh Kumar 2014 (207) DLT 15 . 8. and Ors vs. Gurmeet Singh and Ors.) dated 18.4.2017, decision of the Calcutta High Court in Naresh Chandra Guha vs. Ram Chandra Samanta AIR 1952 Calcutta 93 and the decision of the Delhi High Court in Dr. Habibur Rehman Khan v. Naresh Kumar 2014 (207) DLT 15 . 8. I have heard the learned Counsel for the parties at length and perused the records of the case. While answering the substantial question of law, it would be necessary to consider the law with regard to forfeiture of advance money that is paid while entering into an agreement. In Satish Batra (supra), the facts therein indicate that in the agreement of sale, there was a specific stipulation that on the failure of the purchaser to fulfil certain conditions, the earnest amount was liable to be forfeited. In para 15 of the said decision, it has been observed thus: “15. The law is, therefore, clear that to justify the forfeiture of advance money being part of “earnest money” the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of nonperformance by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get double the amount, if it is so stipulated. It is also the law that partpayment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards partpayment of consideration and not intended as earnest money then the forfeiture clause will not apply.” From the aforesaid, it is clear that the terms of the contract must be clear and explicit to justify forfeiture of the advance amount. Further, if the amount paid is towards part payment of consideration and not intended to be earnest money, then the forfeiture clause would not apply. 9. As per the agreement dated 10-12-2000, the suit house belonging to defendant no.1 was agreed to be sold for consideration of Rs.2,80,000/out of which Rs.70,000/was paid as earnest amount. The balance consideration of Rs.2,10,000/was to be paid by 30-11-2003. 9. As per the agreement dated 10-12-2000, the suit house belonging to defendant no.1 was agreed to be sold for consideration of Rs.2,80,000/out of which Rs.70,000/was paid as earnest amount. The balance consideration of Rs.2,10,000/was to be paid by 30-11-2003. The agreement clearly recites that this amount of Rs.70,000/was received as an advance and towards the part payment of the total consideration. The agreement does not contain any clause by which forfeiture of the amount paid could be made. Similarly, the consequence of not complying with the time schedule mentioned in the agreement is also not provided. The agreement dated 10-12-2000 (Exhibit 39) has been held to be duly proved by both the Courts. It is in the light of this agreement at Exhibit-39 that the entitlement of the plaintiff for refund of the earnest amount is required to be adjudicated. 10. The defence as raised to the claim for refund of earnest amount of Rs.70,000/was the denial of the agreement dated 10-12-2000. It was pleaded that the plaintiff's husband had misused the stamp-paper for preparing said agreement. The agreement itself having been denied, there were no pleadings by the defendant no.1 as regards absence of readiness and willingness on the part of the plaintiff to perform her part of the agreement. In absence of any pleadings by the defendant that the plaintiff was not ready and willing to perform her part of the agreement, there was no occasion for the appellate Court to have gone into that aspect of the matter for denying refund of earnest amount. In the light of limited defence raised by the defendant, the ratio of the decisions in Naresh Chandra Guha, Dr. Habibur Rehman Khan and Jaswinder Kaur (supra) cannot apply to the case in hand. Moreover, the agreement being for sale of immovable property, there is no presumption that the time was the essence of the contract. This position is clear from the decision in Chand Rani V. Kamal Rani (1993) 1 SCC 519 . This decision has been followed in Balasaheb Dayandeo Naik (supra). There was no term in the agreement permitting forfeiture of the part consideration paid by the plaintiff on account of any breach by the plaintiff. There was also no evidence led by the defendant to justify the forfeiture of said amount. This decision has been followed in Balasaheb Dayandeo Naik (supra). There was no term in the agreement permitting forfeiture of the part consideration paid by the plaintiff on account of any breach by the plaintiff. There was also no evidence led by the defendant to justify the forfeiture of said amount. The defendant having failed to prove her defence vis-a-vis the agreement dated 10-12-2000, the plaintiff was entitled for a decree of refund of earnest amount. 11. It cannot be lost sight of that the suit as filed was simplicitor for refund of the earnest amount and in absence of any agreement between the parties by which defendant no.1 was entitled to forfeit the amount of part payment, the aspect regarding readiness and willingness of the plaintiff to perform her part of the agreement could not have been the basis for the appellate Court to refuse refund of the part consideration. In that view of the matter, I find that the trial court was justified in holding in favour of the plaintiff. The appellate Court by misdirecting itself proceeded to consider the question of readiness and willingness and treated it as a condition precedent for getting refund of the part consideration was paid by the plaintiff. The substantial question of law is accordingly answered in favour of the appellant. The appellate Court was not justified in setting aside the decree passed by the trial Court. 12. In view of aforesaid, the judgment in Regular Civil Appeal No.94/2009 dated 24-2-2015 is quashed and set aside. The judgment in Regular Civil Suit No.441/2006 dated 26-3-2009 stands restored. 13. The second appeal is allowed with no order as to costs.