JUDGMENT R.L. Khurana, J.:- This second appeal at the instance of the defendant against the judgment and decree dated 25.11.2000 passed in Civil Appeal No.49-NL/13 of 2000 by the learned Additional District Judge, Solan Camp at Nalagarh, affirming the judgment and decree dated 12.5.2000 of the learned Sub Judge 1st Class, Arki Camp at Nalagarh in Civil Suit No. 11/1 of 1997/99, was admitted for hearing on 22.3.2001 on the following substantial questions of law:-

1. Whether the time was the essence of the contract and the suit as laid is barred by time?

2. Whether the plaintiff has necessarily to prove the sufficiency and availability of funds in order to establish his readiness and willingness to perform his part of the agreement?

3. Whether specific performance of the agreement cannot be ordered in view of the alternative relief of recovery of earnest money?

2. Briefly stated, the facts of the case are these. Defendant is the owner of the land measuring 8 bighas 3 biswas comprising of khasra Nos. 14,15 and 16 (as described in the jamabandi for the year 1994-95) of village Chandpur, Pargana and Tehsil Nalagarh, District Solan. On 16.7.1991 he entered into an agreement with the plaintiffs agreeding to sell an area of b bighas out of the above said land for a consideration of Rs.54,000/-, that is, at the rate of 9,000/-per bigha. A sum of Rs.25,000/- as earnest money was received by the defendant from the plaintiffs at the time of agreement. It was agreed between the parties that the requisite sale deed would be executed and registered on or before 15.7.1992. On 4.10.1991 vide an endorsement made on the original agreement dated 16.7.1991, the defendant further agreed to sell 2 bighas 3 biswas more land to the plaintiffs on the same terms and conditions as originally agreed upon. A further sum of Rs.5,000/- was received by the defendant from the plaintiffs as part of the sale consideration.

3. Again on 21.3.1992 the parties arrived at another agreement whereby the defendant admitted the earlier agreement dated 16.7.1991 and the receipt of Rs.30,000/- as advance of the sale consideration. Under this agreement the defendant had agreed to execute the necessary sale deed in favour of the plaintiffs after the decision of Civil Suit No.308/1 of 1991 which in the meanwhile had been filed against the defendant by his brother Joginder Singh and sister Harbans Kaur since the land agreed to be sold was also subject matter of such suit. Though the suit was dismissed on 26.8.1996, the defendant never informed the plaintiffs about the decision till 13.3.1997 when upon enquiry the plaintiffs were told by the defendant that the suit stood decreed in his favour and that he would execute the sale deed in favour of the plaintiffs by 31.3.1997. The defendant was repeatedly asked by the plaintiffs to execute the sale deed on receiving the balance sale consideration, but the defendant has been avoiding to do so on one pretext or the other and on 4.4.1997 had refused to perform his part of the agreement. Hence the plaintiffs filed a suit for specific performance of the agreement and also for permanent injunction.

4. The defendant while resisting the suit, has admitted the agreement dated 16.7.1991 (Ex.PW I/A) whereby he had agreed to sell land measuring 6 kanals to the plaintiffs for Rs.54,000/-. He has also admitted the receipt of the sum of Rs.25,000/- as earnest money. The defendant has denied the endorsement dated 4.10.1991 (fcx.PW2/A) on Ex.PWl/A agreeding to sell a further area of 2 bighas 3 biswas of land to the plaintiffs and the receipt of a further sum of Rs.5000/- from the plaintiffs. It has been pleaded that in fact the defendant had mortgage land measuring 2 bighas 3 Biswas with the plaintiff No. 1 for Rs.5000/- and that the plaintiffs in connivance with the scribe and witnesses got the endorsement Ex.PW2/A made as an agreement to sell. It was further pleaded that the amount of Rs.5000/- was repaid to plaintiff No. 1 and the mortgage was redeeme

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