The main legal point established in the judgment is that the plaintiff's conduct led to the failure of the contract, time was of the essence of the contract, the claim for damages was incompatible with the claim for specific performance, and the earnest money paid by the plaintiff was forfeited due to the plaintiff's default.

1. This appeal arises out of a suit brought by the plaintiff for specific performance of an agreement to sell a plot of land in Akola Civil Station measuring 200 feet by 180 feet. The agreement is dated 3-6-1936 and is Ex. P. 1. The rate agreed on was 4 annas a square foot, and as the site measured 36000 square feet, the price, although not stated, would come to Rs. 9000. It was also agreed that Rs. 4000 was to be paid by 11 O'clock on 5-6-1936 and this was done. The sale-deed, however, was never executed and each side blamed the other for the failure. Subsequently the defendant 1, Laxminarayan, sold the plot in separate lots to the other defendants who were impleaded and who had begun construction of their houses on the plot before the suit was brought. The plaintiff claimed specific performance of the agreement after payment by him of the balance of Rs. 5000, and in the alternative claimed that he should be paid damages to the extent of Rs. 9000, with interest at 8 annas per cent. per month or, failing that, that the sum of Rs. 4000 paid towards the consideration of the sale should be returned to him with interest at the same rate.

2. The trial Court negatived the plaintiff's claim in all respects and held that it was he who broke the contract and further that time was of the essence of the contract and dismissed the plaintiff's suit. The plaintiff has appealed. The original defendant 1, Laxminarayan, is now dead and his son and his widow have been substituted in his place as respondents.

3. The plaintiff was a money-lender and stated in his evidence that he found money-lending no longer profitable and wished to invest his capital in building. The defendant was the owner of considerable building sites in Akola Civil Station and had already conveyed a certain number of plots in individuals who each built his house thereon. The plaintiff wished to buy and the defendant wished to sell the area now under dispute measuring 200 feet by 180 feet for the purpose of building several houses thereon as a building investment. An experienced lawyer of Akola acted on behalf of both of them in drawing up the document and on 3-6-1936 a deed of agreement was drawn up. This is Ex. p. 1 and it runs as follows:

Karar-chithi (deed of agreement) executed in favour of Badridas Ramrai shop at Akola, proprietor Lakshminarayan Badridas, resident of Akola by Bhalchandra Pandurang Rajandekar, resident of Rajanda at present at Akola to the following effect:

I have decided to purchase the site in front of the bungalow in the Civil Station belonging to you at the rate of 0-4-0 four annas per square foot. Description thereof:

(1) The entire site measuring 180 or less if so found, from south to north and 200 feet from east to west, from the plot sold to Dr. Joglekar, adjoining the main road to the corner, i.e. upto the fencing, of the road of the Bank. The site as mentioned above, at the rate of four annas per square foot.

The transaction regarding the said sale is subject to the following conditions.

(a) The cost of the sale-deed should be borne half and half, i.e., I will pay half and you should bear half.

(b) In case the Committee does not permit me to construct the three or as many bungalows as I have to construct, as per the rules of the Committee, I will be entitled to recover from you the consideration of the sale-deed with interest at the rate of eight annas per cent. per mensem and I will-return the site to you.

(c) You should neither give nor sell the plots on the side of my plot upto your bungalow or upto the present road on the northern side i.e. on the back side (of the plot) of Dr. Joglekar to any non-Hindu.

(d) Upto 11 O'clock on 5-6-1936 I will pay rupees four thousand to you towards the consideration of the sale and will pay the remaining amount before the registering officer.

(e) I will get the sale-deed executed within one month.

(f) You should execute the sale deed after giving a guarantee that you are the absolute owner of the said plot.

(g)