The main legal point established in the judgment is that the plaintiffs must prove their readiness and willingness to perform their part of the contract, including the capacity to pay the purchase price, and that time is not the essence of the contract in cases for the purchase of immovable property.

Hemant Gupta, J.

1. This judgment shall dispose of Regular Second Appeal No. 1105 and 1486 of 1991 arising out of suit for specific performance of agreement of sale dated 9.8.1978 entered into by defendant Pritam Singh in favour of plaintiffs Sukhdev Singh and Subhash Chander.

2. On 9.8.1978, the defendant agreed to sell Kabari shop No. 52 in the Industrial Area, Chandigarh, for a total consideration of Rs. 75,000/-. An amount of Rs. 15,000/-was paid to the defendant at the time of execution of the agreement to sell whereas a sum of Rs. 25,000/- was be paid by 22.08.1978 and the remaining sum of Rs. 35,000/-was to be paid by 9.8.1979 i.e. at the time of execution and registration of sale deed. It is alleged by the plaintiffs that the defendant received @ sum of Rs. 25,000/- on 6.9.1978 and agreed to receive the balance amount at the time of registration of sale deed. A sum of Rs. 4302/- was deposited by the plaintiffs at the request of the defendant with the Estate Office, Chandigarh, as certain proceedings were pending against the defendant. Another sum of Rs. 15,000/- was paid to the defendant at Jagadhri in the first week of April, 1979, at the time of marriage of son of the defendant and, thus, a sum of Rs. 59,302/- has been received by the defendant from the plaintiffs towards the total sale consideration but the defendant refused to abide by the terms and conditions pf the contract. A registered notice was sent to the defendant at his Chandigarh address which remained undelivered. Another notice was sent to the defendant at Jagadhri which was received by the relative of the defendant, namely Harbans Singh. Still further, it has been alleged that the defendant filed ejectment petition against Subhash Chander plaintiff No. 2 for ejectment under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 , for the reason that the tenant is in arrears of rent. Thus, the plaintiffs allege that the defendant is going back on his agreement and is not willing to execute the sale deed whereas the plaintiffs are ready and willing to perform their pay of the contract and, thus, sought specific performance of the agreement with the intervention of the Court.

3. The defendant admitted the agreement but alleged that the plaintiffs have failed to honour the agreement and has violated the terms and conditions of the same. The payment of Rs. 25,000/- vide receipt dated 6.9.1978 was not denied but it was alleged that the plaintiffs did not make any payment in terms of the agreement and, therefore, failed to discharge their part of duty under the contract and, therefore, the plaintiffs are not entitled to the relief claimed in the suit. It is further stated that the agreement is not legal and valid inasmuch as permission from Chandigarh Administration through the Estate Office, Chandigarh, was not obtained. Therefore, the amount paid by the plaintiffs was forfeited.

4. It is a finding of fact recorded by the learned trial Court that a sum of Rs. 15,000/-allegedly paid by the plaintiffs to the defendant in April, 1979, and deposit of Rs. 4302/-in the Estate Office, Chandigarh, has not been proved on the record. Such finding was affirmed by the learned first Appellate Court. The plaintiffs have challenged such findings by way of Regular Second Appeal No. 1105 of 1991.

5. Before deciding the question arising out of defendants appeal, it would be necessary to decide the question whether the plaintiffs have proved the payment of Rs. 15,000/- in April, 1979, or deposit of a sum of Rs. 4302/- in the Estate Office, Chandigarh. The entire case of the plaintiffs is based upon either on oral evidence of payment of Rs. 15,000/- or on receipt Exhibit P-4 which is a counterfoil of deposit of Rs. 4302/-for the purposes of preparation of draft. The amount of draft is Rs. 4300/- whereas exchange is Rs. 2/-. However, the said receipt does not show that the draft was prepared in the name of Estate Office, Chandigarh, and was deposited on behalf of