RAM PRASANNA SHARMA, J.

1. This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 17-5-2003 passed by 3rd Additional District Judge, Bilaspur, District Bilaspur in Civil Suit No. 95-A/2002 wherein the said court dismissed the suit filed by the appellant/plaintiff for specific performance of the contract in relation to agreement to sale of the house which is shown in the map with plaint situated at Jagmal Block, Tikarapara, Juna Bilaspur, MP now CG, but decreed the suit for refund of advance sum to the tune of Rs.5100/- with interest.

2. As per version of the appellant, respondent No.1/defendant namely Padma Ben Bhanushali entered into agreement as per Ex.P/1 for sale the suit house and land for cash consideration of Rs.2,75,151/- and agreement was written on 20-9-1996 on receiving advance sum of Rs.5100/-. It was stipulated in the agreement that the appellant/plaintiff will pay 65% of he sale price upto 19-10-1996 and balance 35% (including advance sum) of the sale price will be paid upto 19-11-1996. After execution of the said agreement respondent No.1 left for Pipariya from Bilaspur and she was not ready and willing to perform her part of agreement. The appellant was always ready and willing to perform his part of contract. On 2-11-1996 respondent sent a notice through her counsel asking for payment of 65% of the sale price with 24% per annum interest on it within three days, otherwise agreement will be deemed to be forfeited. In the said notice it is mentioned that time was essence of the agreement. By service of notice the said respondent herself committed breach of contract by asking for payment of interest though payment of interest was never agreed between the parties. After receiving notice appellant sent a telegram to perform agreement after receiving balance price. In telegram dated 3-3-1997 (Ex.P/7) respondent No.1 directed the appellant to contact Shri Nanji Bhai in the matter of execution of sale deed because respondent No.1 herself was not residing at Bilaspur, but she is residing at Pipariya. Appellant met Nanji Bhai, but he denied for any conversion with the appellant. On 4-3-1997 appellant sent a notice to counsel of respondent No.1 to receive balance sale price and execute registered sale deed in his favour. This notice was received on 5-3-1997 by the advocate of respondent No.1. Appellant produced demand draft of the balance sale price dated 29-2-2000 before the Hon'ble Apex court in SLP (C) No. 23575/97 to show his readiness and willingness because respondent No.1 was not available to receive money at Bilaspur. Appellant then filed a suit for specific performance of contract on 2-4-1997 i.e., only after seven months of the agreement to sell the suit land. On 23-11-1996 respondent No.1 executed a subsequent agreement to sell the suit land and house for the same price to respondents Bharat Kumar and Pratap Kumar as per Ex.D/15 which proves that she had no intention to perform agreement to sell dated 20-9-1996 executed in favour of the appellant. Even after execution of second agreement, respondent No.1 sent a false notice (Ex.D/7) dated 3-3-1997 directing the appellant to meet her son Nilesh Kumar at Bilaspur and get executed sale deed in between 3-3-1997 to 5-3-1997. The said notice was replied by the appellant vide Ex.D/8.

3. Learned counsel for the appellant would submit as under;

(i) The trial Court held (para 25 of the judgment) that time was not essence of the contract, but held that time was made essence of the agreement by sending notice by respondent No.1 which is not sustainable.

(ii) The respondent did not enter into witness box and did not examine another important witness Nanji Bhai, therefore, adverse inference should have been drawn by the trial Court against the respondent.

(iii) The trial Court erroneously held that the appellant has not given evidence of availability of fund which is not correct. The appellant had always requisite