R. SUBRAMANIAN, J.

The first defendant in OS No.114 of 2007 on the file of the Principal District Court, Namakkal, who suffered a decree for specific performance, is the appellant.

2. The said suit was laid down by the 1st respondent in this appeal seeking specific performance for an agreement sale dated 05.02.2007. According to the plaintiff, as per the agreement dated 05.02.2007, the defendants 1 to 3 had agreed to convey an extent of about 14,517 sq.ft. of vacant site to the plaintiff at a consideration of Rs.135/- per sq.ft. Under the agreement, defendants 1 to 3 had received a sum of Rs.2,00,000/- as advance on the date of the agreement and a further sum of Rs.3,00,000/- on 27.02.2007. The said agreement also provides that the defendants should demarcate the 30 feet wide passage from the main road to reach the property and the defendants should also arrange for the persons, who are having interest over the said passage to sign the sale deed as witnesses. The agreement provides for a period of 60 days for performance and the consequences of non-performance are also set out in the agreement.

3. According to the plaintiff, though he made several demands for execution of sale deed, the defendants did not come forward to demarcate the 30 feet passage and evaded execution of sale deed. The plaintiff would contend that he issued a legal notice demanding execution of sale deed on 11.07.2007 and the 1st defendant alone sent a reply on 27.07.2007 admitting execution of the agreement and the receipt of the advance amount, however, the 1st defendant denied that he had agreed to obtain signatures of the other persons having interest in the passage as witnesses in the sale deed that is to be executed. The 1st defendant further claimed that time is the essence of the contract and the plaintiff having failed to pay the balance of sale consideration within the time fixed under the agreement, namely on or before 10.04.2007, the plaintiff has lost his right to enforce the agreement.

4. The plaintiff would further contend that time was never intended to be an essence of the contract. He would also claim that the agreement being one with reciprocal promises, unless the defendant had complied with his part of the contract, he cannot resist the suit on the ground of absence of readiness and willingness on the part of the plaintiff. On the above pleading, the plaintiff sought for a decree for specific performance. The plaintiff also sought for alternative relief of refund of advance with reasonable interest. Pending suit, the 3rd defendant died and defendants 4 to 7 were brought on record as the legal representatives of the 3rd defendant.

5. The 1st defendant filed a written statement contending as follows:

The execution of the agreement and the receipt of advance of Rs.5,00,000/- was admitted. It was claimed that the time is the essence of the contract and inasmuch as the plaintiff was not willing to perform his part of the contract within the time stipulated under the agreement, the plaintiff has lost his right to enforce the agreement. The claim of the plaintiff that he had approached the defendants seeking execution of the sale deed was stoutly denied. It was also contended that the plaintiff is not entitled to the prayer for alternative relief, since the agreement provides that in the event of his not paying the balance sale consideration within the stipulated time, the plaintiff would forfeit the advance amount. It was claimed that the legal notice was properly replied to. On the above contentions, the defendants sought for dismissal of the suit.

6. On a consideration of the pleadings as well as the evidence on record, the learned Principal District Judge, Namakkal, framed the following issues for consideration.

1. Whether the plaintiff is entitled to Specific performance of the agreement dated 05.02.2007?

2. Whether the plaintiff was ready and willing to perform his part of the contract dated 05.02.2007?

3. To what relief if the plaintiff