JUDGMENT : B.S. BHANUMATHI, J. 1. This appeal, under Section 96 CPC, is preferred against the judgment and decree, dated 30.09.2016, passed in O.S. No. 469 of 2014 on the file of the Court of XII Additional District Judge, at Visakhapatnam, whereby the suit filed by the respondent/plaintiff seeking specific performance of agreement of sale, dated 16.03.2013, or in the alternative, for refund of advance sale consideration of Rs. 2,80,000/- with interest and costs, was decreed. 2. Heard Sri N. Subba Rao, learned counsel for the appellant/defendant and Sri D. Ravishankar Rao, learned counsel for the respondent/plaintiff. The parties shall be referred as the plaintiff and defendant hereinafter. 3. The case of the plaintiff, in brief, is as follows: (a) The defendant is the absolute owner of the schedule mentioned property, which is a zyroti dry land, in an extent of Ac.1.40 cents. The defendant offered the said land for sale to the plaintiff and the plaintiff accepted the said offer, and an agreement of sale was entered into between the plaintiff and the defendant, on 16.03.2013. As per the said agreement of sale, the sale consideration is fixed at Rs. 11,500/- per Cent and on 16.03.2013, the plaintiff paid an amount of Rs. 2,80,000/- towards advance sale consideration, by way of cheque bearing No. 419524, dated 17.04.2013, drawn on Karnataka Bank Limited, Visakhapantam, for an amount of Rs. 1,40,000/- and a sum of Rs. 1,40,000/- in cash and the defendant acknowledged the same. As per the terms and conditions of the sale agreement, the defendant has to execute registered sale deed for the schedule mentioned property within three months from the date of agreement of sale, in favour of the plaintiff by conducting survey of the land for its exact extent. The plaintiff has to pay the remaining balance on the date of registration. Subsequently, the plaintiff has been intimating his readiness and willingness for getting the registered sale deed for the schedule mentioned property and the defendant used to postpone the same on one pretext or the other. While so, the plaintiff came to know that the defendant is making hectic efforts to sell away the schedule property to third parties by ignoring the agreement of sale entered into with the plaintiff. While so, the plaintiff came to know that the defendant is making hectic efforts to sell away the schedule property to third parties by ignoring the agreement of sale entered into with the plaintiff. On 16.06.2014, the plaintiff got issued a legal notice to the defendant that he is ready with the remaining sale consideration for getting the registered sale deed for the schedule mentioned property. On 23.06.2014, the defendant got issued reply admitting receipt of advance amount and denying execution of the registered sale deed and by raising false allegations. Even though the plaintiff is intimating his readiness and willingness to perform his part of agreement with remaining sale consideration and registration expenses, the defendant is not coming forward to perform his part of agreement. Even after receipt of legal notice, the defendant refused to perform his part of contract. Hence, the plaintiff filed the present suit. (b) The defendant filed written statement denying the plaint averments. It is further contended in the written statement as follows: The defendant intimated to the plaintiff through the mediators that he is ready to execute the sale deed and demanded to pay the balance sale consideration. But, the plaintiff postponed the same on one pretext or the other. The defendant approached the plaintiff several times to pay the amount and he is ready and willing to execute the sale deed, however, as the plaintiff did not respond, the amount paid by the plaintiff was forfeited. As the plaintiff committed breach of terms & conditions of the agreement, the defendant is not interested in executing the sale deed. The plaintiff has not approached the Court with clean hands. There is no cause of action for the suit. The suit is not maintainable. The plaintiff is neither entitled to refund of the advance amount nor the relief of specific performance. The suit is liable to be dismissed. 4. Basing on the above pleadings, the following issues were settled for trial: 1. Whether plaintiff is entitled for specific performance of agreement of sale, dated 16.3.2013? 2. Whether the plaintiff is entitled to alternative relief if the relief of specific performance is not possible? 3. To what relief? 5. On behalf of the plaintiff, PWs. 1 and 2 were examined and exhibits A1 to A3 were marked. Whether plaintiff is entitled for specific performance of agreement of sale, dated 16.3.2013? 2. Whether the plaintiff is entitled to alternative relief if the relief of specific performance is not possible? 3. To what relief? 5. On behalf of the plaintiff, PWs. 1 and 2 were examined and exhibits A1 to A3 were marked. Exhibit A1 is the agreement of sale, dated 16.03.2013, and exhibit A2 is the legal notice, dated 16.06.2014, issued by the plaintiff and exhibit A3 is the reply notice, dated 23.06.2014, issued by the defendant. On behalf of the defendant, DWs. 1 and 2 were examined. No documents were marked for the defendant. 6. On a consideration of the entire evidence, both oral and documentary, and on hearing the submissions of the learned counsel for the parties, the trial Court decreed the suit directing the plaintiff to deposit balance sale consideration of Rs. 13,30,000/- on or before 30.11.2016 and the defendant is directed to execute registered sale deed in the name of the plaintiff within three months from the date of the said judgment. 7. The aggrieved defendant preferred this appeal. While reiterating his pleaded case, the appellant further urged as follows: The trial Court failed to appreciate that there is neither pleading nor evidence before it for delay of more than a year to issue notice under exhibit A1 after expiry of the agreed period. The trial Court erred in decreeing the suit though the plaintiff is unable to plead and establish that he is always ready and willing to perform his part of contract. The trial Court decreed the suit on the basis of evidence of DW-1 who is an illiterate woman and who does not know about the court proceedings. The trial Court failed to appreciate the pleadings, evidence on record. The trial Court failed to appreciate that there is willful negligence on the part of the plaintiff. The suit for specific performance itself is not maintainable as time is the essence of the contract. There are no lapses on the part of the defendant. 8. The suit for specific performance has been resisted on the ground that the plaintiff has not been ready to pay balance sale consideration within the stipulated period of three months, and thereby, the amount of advance is also forfeited, while admitting the execution of the agreement and receipt of advance amount as per the terms of contract. 8. The suit for specific performance has been resisted on the ground that the plaintiff has not been ready to pay balance sale consideration within the stipulated period of three months, and thereby, the amount of advance is also forfeited, while admitting the execution of the agreement and receipt of advance amount as per the terms of contract. The plaintiff contends that the defendant has to get the land measured and thereafter, the plaintiff has to pay balance sale consideration, but, the defendant failed to discharge his burden, and therefore, there are no laches on the part of the plaintiff and that the plaintiff has always been ready and willing to perform his part of contract. 9. It is settled law that mere stipulation in the agreement of sale of immovable property as to time for performance of the contract does not make the term ‘essence’ unless both parties intend to treat the condition as ‘essence’ for performance of the contract. Both parties agree on the fact that time for performance of the contract is indicated in the agreement as three months. But the order of obligations to be performed by both parties is also indicated in the agreement itself. Therefore, it is relevant to mention the condition regarding mutual obligations linked to the time framed fixed. The vendor agreed to execute the registered sale deed, at the expenses of the vendee, on receipt of balance sale consideration payable on calculation of the total land available for sale on survey being conducted immediately after payment of the sale consideration within three months from the date of the agreement. The plaintiff says that survey should be conducted first so that the amount of remaining sale consideration can be ascertained. On the other hand, the defendant contends that unless the plaintiff pays the balance sale consideration within three months, his obligation to get the land surveyed does not arise. The obligations are not clearly spelt out with reference to the time. Is it the intention of the parties that the balance sale consideration should be paid within three months and survey should be conducted later on, or, survey should be conducted within three months and get the land measured to fix the total amount of sale consideration and thereafter, the obligation to pay balance sale consideration would arise. Is it the intention of the parties that the balance sale consideration should be paid within three months and survey should be conducted later on, or, survey should be conducted within three months and get the land measured to fix the total amount of sale consideration and thereafter, the obligation to pay balance sale consideration would arise. Even, there is no thorough cross-examination on this aspect to cull out the intention of the parties. That apart, the parties did not intend to treat the time as ‘essence’ by their conduct before or shortly after expiry of the period of three months. No other term of contract would indicate that time was treated as essence. It is only in the reply notice, the defendant sated that the amount of balance sale consideration is also forfeited since the plaintiff has not discharged his obligation within the stipulated time. 10. Thus, when time is not essence of the contract, what is left for both parties is to discharge their respective obligations in the order mentioned in the agreement. Though it appears that survey to be conducted on payment of balance sale consideration, it is not so possible because the amount of balance sale consideration can be determined only after actual survey to measure the land. Therefore, unless survey is conducted, the plaintiff cannot pay the balance sale consideration. Both parties say that they have been asking the other party to perform the contract. In this regard, the defendant examined DW-2 as one of the mediators, who has knowledge of the defendant asking the plaintiff to perform his contract, as a mediator. That apart, he has also examined as a witness to support the contention that the wife of the defendant was examined as a witness for the defendant, i.e., DW1, since the defendant is sick being an alcoholic. The plaintiff also examined PW2 in support of his case that he used to ask the defendant to perform his part of the contract, but the defendant used to postpone the same on one pretext or the other. 11. In a suit for specific performance, the plaintiff has to establish readiness and willingness throughout. It is represented by the learned counsel for the appellant that the plaintiff failed to make the deposit of balance of sale consideration of Rs. 13,30,000/- as directed by the trial Court in its decree, on or before 30.11.2016. 11. In a suit for specific performance, the plaintiff has to establish readiness and willingness throughout. It is represented by the learned counsel for the appellant that the plaintiff failed to make the deposit of balance of sale consideration of Rs. 13,30,000/- as directed by the trial Court in its decree, on or before 30.11.2016. Except filing the suit on 07.08.2014 to get the agreement of sale, dated 16.03.2013 performed, no evidence is placed by the plaintiff to satisfy the Court that he has been ready and willing to perform his part of the contract, in case, if it is allowed in his favour. Moreover, even after passing of the decree, till now, the balance sale consideration is not deposited. As such, this is a fit case to allow the appeal. 12. Since the agreement does not contain any term to forfeit the balance sale consideration, in any event, the defence taken about its forfeiture is not sustainable. Therefore, the amount of advance sale consideration received shall be refunded to the plaintiff with reasonable rate of interest. 13. Insofar as rate of interest payable pending and post suit, the same is governed by Section 34 CPC which gives discretion to the Court to fix the reasonable rate of interest for the period pending the suit, i.e., from the date of the suit to the date of decree, whereas the post suit rate of interest shall not normally exceed 6% per annum. Insofar as the rate of interest for the post-decree period is concerned, the proviso to Section 34 CPC states that if the contract has an element of commercial nature, the rate of interest payable may exceed 6% per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions. 14. In the present case, there is no term as to interest payable on the amount of advance paid. In the plaint, the plaintiff prayed for refund of the advance amount with interest at the rate of 24% per annum from the date of payment to the defendant, i.e., from the date of the agreement, till the date of realization. This Court is of the view that the rate of interest claimed at 24% per annum is reasonable insofar as pre-suit period is concerned. This Court is of the view that the rate of interest claimed at 24% per annum is reasonable insofar as pre-suit period is concerned. Even in relation to the period pending the suit, this Court deems it fit to award the same rate of interest, i.e. at the rate of 24% per annum. 15. In relation to post-decree period, since the discretion of the court is limited to the prevailing rate of interest collected by the nationalized banks on the amount lent or advanced and the rates of interest payable on the monies lent or advanced by nationalized banks vary from time to time; interest at the rate of 14% per annum is considered appropriate. Thus, the defendant can be directed to refund the advance sale consideration to the plaintiff with interest payable at the rate of 24% per annum from the date of the agreement till the date of decree and thereafter, at the rate of 14% per annum from the date of decree till the date of realization on the principal amount of Rs. 2,80,000/-. To secure the interest of the plaintiff, charge over the property can be created and the same shall be intimated to the Sub-Registrar concerned to protect the interest of the prospective buyers. 16. In the result, the appeal is allowed setting aside the judgment and decree, dated 30.09.2016, passed in O.S. No. 469 of 2014, and decreeing the suit for refund of the advance sale consideration, and directing the defendant to refund the advance sale consideration to the plaintiff with interest payable at the rate of 24% per annum from the date of the agreement till the date of decree, and thereafter, at the rate of 14% per annum from the date of decree till the date of realization on the principal amount of Rs. 2,80,000/- as well as the suit costs. In the facts and circumstances, this Court holds that the liability shall remain as a charge over the suit schedule property and a copy of this judgment shall be sent to the Sub-Registrar concerned for the purpose of recording ‘charge’ over the suit schedule property in the concerned registers. 17. Each party shall bear their own costs in the appeal. 18. Pending miscellaneous petitions, if any, shall stand closed.