ARIJIT PASAYAT, J.

( 1 ) CHALLENGE in this appeal is to the judgment of the madhya Pradesh High Court, Indore Bench dismissing LPA No. 16 of 1993 filed by the appellant Rameshwar Prasad. In this appeal the legal representatives of Rameshwar Prasad have been impleaded after his death. By the impugned judgment by which two LPAs. i. e. LPA Nos. 16 and 19 of 1993 were disposed of. LPA No. 16 of 1993 was filed by Rameshwar prasad whereas other LPA was filed by the present respondent basanti Lal. Rameshwar Prasad had filed a suit for the relief of specific performance of contract. The trial court granted the relief of specific performance of the contract. First appeal no. 45 of 1976 was filed by Basanti Lal, the respondent. The appeal was allowed and the judgment and decree of the trial court was set aside on the following terms:

a) That the appellant shall refund the sum of Rs. 3000/- as agreed in Ex. P/3 to the respondent by payment or deposit in trial court within a period of one month from today.

b) That the respondent on payment or deposit of this amount, shall put the appellant in vacant. possession of the property covered by Ex. P/3 within a period of 15 days thereafter on analogy of Section 65 of the Contract act.

c) The appellant shall be liable to pay interest at the rate of 1% per month on this amount in case payment or deposit is made beyond the period of one month from the date of default till compliance.

d) The respondent shall be liable to pay mesne profits, determinable by the trial court in terms of Order 20 Rule 12 of the Code and ordered in the shape of final decree in that behalf in pursuance of this direction on failure to deliver possession within 15 days as directed above from the date of default till delivery of possession. No claim of standing crops shall be admissible in view of enjoyment of usufruct for such a long duration and that possession shall be delivered along with the standing crops, if in existence.

e) Parties are left to bear their own costs of this appeal as incurred. Counsel fee on each side shall, on certification, be Rs. 1500/ -.

( 2 ) BOTH Rameshwar Prasad and Basanti Lal preferred appeals before the Division Bench. By the impugned judgment so far as the appeal filed by Rameshwar Prasad is concerned the High Court held that the plaintiff had neither pleaded nor proved that he was ever ready and willing to pay interest, having failed to prove the purported waiver of interest, as claimed, the Division Bench held that the plaintiff has not established basic ingredients for decree of specific performance of contract. On that ground alone the appeal was dismissed and other points raised were not considered.

( 3 ) LEARNED counsel for the appellants submitted that the high Court categorically noted that in paragraph 13 of the plaint as was shown in the notice sent to the defendant, it was categorically stated that he was compelled to comply with all terms and conditions of agreement. The High Court wrongly construed the statement and came to the conclusion that the said statement cannot be construed to mean that plaintiff was ready to pay the amount of interest, particularly in view of the stand of the defendant. It was pointed out that in the paragraph 13 it has been stated that the plaintiff was always ready and willing and even ready and willing today for performance of his part of the contract.

( 4 ) IT is submitted that the question of interest of delay was never raised before the trial court.

( 5 ) LEARNED counsel for the respondent submitted that there was dispute as regards the claim of payment of Rs. 4,500/-and if there was delay interest was payable. Plaintiff raised an absolutely frivolous plea that payment was being made on behalf of the defendant.

( 6 ) THE agreement dated 13. 9. 1963 contains the following clause which is of significance:

"till the payment of instalment, interest at the rate of Rs. 0. 75 paise percent shall be payable on Rs. 5,000/- Interest shall be payable w. e. f. 1