JUDGMENT Hon’ble Rajesh Tandon, J. Heard Smt. Indu Sharma holding the brief of Shri Sharad Sharma, counsel for the appellant and Shri S.K. Mandal, counsel for the respondents. 2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 8.11.1996 passed by the Civil Judge (Sr. Division), Udham Singh Nagar as well as judgment and decree dated 6.9.2007 passed by the Additional District Judge, Nainital. 3. Briefly stated, a suit was filed by the plaintiffs stating therein that the defendant has executed an agreement to sale in favour of the father of the plaintiffs, namely, Late Shri Deshraj with regard to the land khasra nos. 162 area 2 bigha 4 biswa, 334 area 4 bigha 4 biswa, 335 area 5 bigha 15 biswa, 336/1 area 1 bigha 12 biswa, 336/2 area 1 bigha 12 biswa, 338 area 2 bigha 8 biswa, khasra no. 335 B area 5 biswa, total 18 bigha situate at village Harlalpur, tehsil Bajpur, district Nainital on a sale consideration of Rs. 40,000/-. The defendant has received a sum of Rs. 35,000/- towards advance amount. The agreement to sale was registered in the office of Sub-Registrar, Bajpur on 18.2.1985. there was a condition in the sale deed that after payment of Rs. 5,000/- by the father of the plaintiffs, the defendant shall execute the sale deed in his favour. The defendant has received remaining amount of Rs. 5,000/- on 26.3.1985 and handed over the possession of the aforesaid land to the father of the plaintiffs. The father of the plaintiffs has requested several times to the defendant to execute the sale deed in his favour but of no avail. Therefore, the father of the plaintiff has served a notice on 20.1.1988 to the defendant to remain present in the office of Sub-Registrar, Bajpur on 15.2.1988 for execution of sale deed. The defendant has received the said notice on 25.1.1988 but the defendant has denied to execute the sale deed in favour of the father of the plaintiffs. On 16.5.1988, the father of the plaintiffs died, therefore, the plaintiffs have asked the defendant to execute the sale deed in their favour. The defendant has received the said notice on 25.1.1988 but the defendant has denied to execute the sale deed in favour of the father of the plaintiffs. On 16.5.1988, the father of the plaintiffs died, therefore, the plaintiffs have asked the defendant to execute the sale deed in their favour. The plaintiffs and the father of the plaintiffs were always ready and willing to get the sale deed executed in their favour but the defendant was not willing to execute the sale deed with mala fide intention, hence, the suit has been filed for a decree for specific performance of the contract. 4. The defendant has filed the written statement denying the plaint averments. It has been stated the father of the plaintiffs was a ‘sahukar’ and was using to lend money on interest but he was not having any license of money lending. The defendant has only 5-6 acres of land and he is a poor person. He used to borrow money from the father of the plaintiffs and he used to get the sale agreement in favour of his relatives towards guarantee. On 15.2.1985, when the defendant was in need of Rs. 40,000/-, the father of the plaintiffs got executed the sale agreement in question in his favour. The defendant was not willing to sale the land in question and, therefore, the agreement to sale is liable to be cancelled. The suit of the plaintiff is liable to be dismissed. 5. On 15.2.1985, when the defendant was in need of Rs. 40,000/-, the father of the plaintiffs got executed the sale agreement in question in his favour. The defendant was not willing to sale the land in question and, therefore, the agreement to sale is liable to be cancelled. The suit of the plaintiff is liable to be dismissed. 5. On the basis of the pleadings, the trial court has framed the following issues:- ß1- D;k izfroknh us fnukad 15-2-1985 dks viuh Hkwfe/kjh dh vkjkth #ñ 40]000@& esa oknhx.k ds firk Loñ Jh ns”kjkt dks cspus dk bdjkj fd;k vkSj c;kus ds :i esa 35]000@& fnukad 26-3-85 dks #ñ 5]000@& izkIr fd;s tSlk fd okni= dh /kkjk 1 o 3 esa dgk x;k gS] ;fn gk¡ rks izHkko\ 2- D;k oknhx.k lafonk ds izfr viuk nkf;Ro fuHkkus dks vkt Hkh rRij gS vkSj muls iwoZ muds firk Loñ ns”kjkt lafonk ds izfr viuk nkf;Ro fuHkkus dks rS;kj jgs] tslk fd okni= dh /kkjk 4 esa dgk x;k gS\ 3- D;k oknhx.k ds fgriwoZorhZ ns”kjkt lkgwdkjh dk dk;Z djrs Fks vkSj lkgwdkjh dk ykbZlsUl u gksus ds dkj.k QthZ eqgk;nk c; fy[kok ysrs Fks] tSlk fd izfrokni= dh /kkjk 8 ls 11 esa dgk x;k gS\ 4- D;k izfroknh us oknhx.k ds fgriwoZorhZ ls _.k }kjk izkIr fd;s x;s #ñ 40]000@& okil dj fn;s tSlk fd izfrokni= dh /kkjk 13 o 14 esa dgk x;k gS] ;fn gk¡ rks izHkko\ 5- oknhx.k fdl vuqrks’k dks ikus dk vf/kdkjh gS\Þ 6. The plaintiffs have examined P.W.1 Pradeep Kumar Goyal, Mithilesh Kumar Kashyap as P.W.2, Vijay Kumar Bansal as P.W.3 and Umesh Chandra Sharma as P.W.4. Towards the documentary evidence, the plaintiffs have produced paper no. 10 ga i.e. receipt of registry, receipt issued by the office of the Sub-Registrar, Bajpur i.e. paper no. 12 ga, report of finger print expert i.e. Exb. 3, negative i.e. Exb. 4, photographs i.e. Exbs. 5 to 7, supplementary report i.e. Exb. 8, negatives i.e. Exb. 9, Photographs i.e. Exbs. 10 to 12. 7. The defendant has examined D.W.1 Mohammad Najimul-ur-Rahman, D.W.2 Leeladhar and D.W.3 Durga. The defendant has produced report of finger print expert i.e. Exb. A1, Negative i.e. Exb. A2, Photographs Exbs. A3 to A16, copy of agreement i.e. Exb. A18, receipt i.e. Exb. A17, copy of khasra i.e. Exb. A19 to A22 and copy of khasra i.e. Exb., A-23. 8. While deciding issue no. The defendant has produced report of finger print expert i.e. Exb. A1, Negative i.e. Exb. A2, Photographs Exbs. A3 to A16, copy of agreement i.e. Exb. A18, receipt i.e. Exb. A17, copy of khasra i.e. Exb. A19 to A22 and copy of khasra i.e. Exb., A-23. 8. While deciding issue no. 1 as to whether the defendant has executed an agreement to sale in favour of the father of the plaintiffs on 15.2.1985 on a sale consideration of Rs. 40,000/- and has received an advance of Rs. 35,000/- and Rs. 5,000/- on 26.3.1985. The trial court has relied upon the admission of D.W.2 that he has executed the agreement to sale in favour of the father of the plaintiffs and has received a sum of Rs. 35,000/- towards advance and further received a sum of Rs. 5,000/- on 26.3.1985. The trial court has further relied upon the statement of P.W.2 and P.W.3, who has admitted that the aforesaid amount was given to the defendant in their presence by the father of the plaintiffs. The trial court has also placed reliance on the statement of P.W.4 who has stated that the agreement to sale in question was executed by the defendant in his favour. The trial court has come to the conclusion that the defendant has executed an agreement to sale in favour of the father of the plaintiffs. The trial court has recorded the finding to the following effect :- ßvxj okLro esa ;g vfHkys[k izn”kZ 13 uqek;”kh nLrkost gksrk rks izfroknh fuf”pr :i ls uksfVl izn”kZ 13 dk mÙkj fuf”pr :i ls mfYyf[kr djrk fd ;g uqek;”kh nLrkost gS] vkSj mlus tehu cspus ds fy, bdjkjukek ugha fd;k gSA ysfdu ,slk u fd;s tkus ls ;g mi/kkj.kk LokHkkfod gS fd izfroknh }kjk LosPNk ls fu’ikfnr fd;k x;k izn”kZ 13 bdjkjukek c; gS vkSj blesa mfYyf[kr Hkwfe ds laca/k esa bdjkjukek gS u fd ,d uqek;”kh nLrkostA bl izdkj lk{; ls ;g lkfcr gS fd izn”kZ 13 okLro esa LosPNk ls izfroknh }kjk fu’ikfnr viuh tehu dks cspus ds laca/k esa ,d bdjkjukek c; gS] u fd uqekb”kh nLrkost vkSj bl bdjkjukek dh “krks± ds vuqlkj izfroknh oknhx.k ds i{k esa dfFkr Hkwfe dk c;ukek djus ds fy;s ck/; gSAÞ 9. While deciding issue no. While deciding issue no. 2 as to whether the plaintiffs are ready and willing to get the sale deed executed in their favour, the trial court has relied upon the notice dated 20.1.1988 served by the father of the plaintiffs to the defendant and the reply of the aforesaid notice given by the defendant. The trial court has recorded the finding that the plaintiffs were always ready and willing to get the sale deed executed in their favour. 10. While deciding issue no. 3 as to whether the predecessor of the plaintiffs was doing the work of money lending and he used to get the agreement executed because he was not having license of money lending, the trial court has recorded the finding that the defendant has failed to prove that the predecessor of the plaintiffs was doing the work of money lending. 11. While deciding issue No. 4 as to whether the defendant has returned the amount of Rs. 40,000/- to the predecessor of the plaintiffs, the trial court has come to the conclusion that the defendant could not establish that he has returned the amount of question i.e. Rs. 40,000/- to the father of the plaintiffs. 12. On the basis of the aforesaid, the trial court has decreed the suit of the plaintiffs for specific performance of contract. Aggrieved by the judgment and decree passed by the trial court, the defendant went in appeal. The appellate court has modified the decree to the extent that the plaintiffs are entitled to get back a sum of Rs. 40,000/- along with interest thereon. 13. Against the judgment and decree passed by the appellate court, the plaintiffs preferred the second appeal being S.A. No. 1148/2001. Relying upon the judgment of P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi & Anr. Reported in 2007 (2) Civil Court Cases 304 (S.C.), Second appeal was allowed and remanded to the appellate court for deciding afresh in the light of the Specific Provision under Section 20(2) (c) of the Specific Relief Act as to whether the relief can be allowed at this stage. In P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi & Anr. Reported in 2007 (2) Civil Court Cases 3004 (S.C.), it has been observed as under :- “19. Submission of Mr. In P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi & Anr. Reported in 2007 (2) Civil Court Cases 3004 (S.C.), it has been observed as under :- “19. Submission of Mr. Chandrashekhar to the effect that having regard to the rise in price of an immovable property in Bangalore, the Court ought not to have exercised its discretionary jurisdiction under Section 20 of the Specific Relief Act is stated to be rejected. We have noticed hereinbefore that the appellate had entered into an agreement for sale with others also. He had even after 11.05.1979 received a sum of Rs. 5,000/- from the respondent. He with a view to defeat the lawful claim of Respondent no. 1 had raised a plea of having executed a prior agreement for sale in respect of self-same property in favour of his son-in-law who had never claimed any right thereunder or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D.’Souza (Supra) and Jai Narain Parasrampuria (supra)’}. 14. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D.’Souza (Supra) and Jai Narain Parasrampuria (supra)’}. 14. After remand of the second appeal, the appellate court has dismissed the appeal and has recorded the findings to the following effect:- ß24- bl izdkj ls mijksDr leLr foospuk ls vkSj ekuuh; mPpre U;k;ky; }kjk mijksDr ekeys esa izfrikfnr fof/kd fl)kar ds ifjizs{; esa ;g Li’V gS fd oknh us izfroknh ds i{k es aiz”uxr lEifÙk ds ckcr ,d fof/kiw.kZ foØ; vuqcU/ki= fu’ikfnr fd;k vkSj mDr foØ; vuqcU/k i= fu’ikfnr fd;k vkSj mDr foØ; vuqcU/ki= ds vUrxZr mldh leLr /kujkf”k izkIr dj “ks’k /kujkf”k izkIr djrs le; jlhn fu’ikfnr djrs gq, lEifÙk dk dCtk iznku dj nsus dk Hkh dFku dj fn;kA blds fo#) izfroknh ;g fl) djus esa foQy gks x;k fd mDr foØ; vuqcU/ki= ek= fdlh _.k dh izfriwfrZ ds :i esa Fkk vkSj izfroknh ;g fl) djus esa Hkh foQy gks x;k fd mlds }kjk _.k pqdrk dj fn;k x;k gSA oknh ;g fl) djus esa lQy jgk gS fd og lafonk dk fof”k’V vuqikyu ds vuq:i cSukek djus ds fy;s lnSo rRij o rS;kj jgk gSA ek= izfroknh dk ;g rdZ gS fd lEifÙk ds foØ; fd;s tkus dk tks izfrQy of.kZr gS og vR;Ur U;wu gS ijUrq tSlk fd iwoZ foospuk dh tk pqdh gS ;g lafonk ds fofufnZ’V vuqikyu vkSj vuqrks’k dks vLohdkj djus dk dksbZ vk/kkj ugha gSA vr% bl ekeys esa ,slk vk/kkj izfroknh LFkkfir ugha dj ikrk gS ftlds dkj.k U;k;ky; ,d fof/kiw.kZ lafonk dk fof”k’V vuqikyu djus dk vuqrks’k vLohdkj djus dk vk/kkj ik;s rFkk bu ifjfLFkfr;ksa esa fo}ku voj U;k;ky; }kjk tks fu.kZ; iz”uxr lEifÙk ds ckcr lafonk ds fofufnZ’V vuqikyu dk ikfjr fd;k x;k gS mlesa fdlh gLr{ksi dh vko”;drk ugha gS vkSj bl dkj.k izfroknh@vihykFkhZ }kjk dh x;h izLrqr vihy lO;; fujLr fd;s tkus ;ksX; gS rFkk fo}ku voj U;k;ky; dk fu.kZ; iq’V fd;s tkus ;ksX; gSAÞ 15. Counsel for the appellant has referred the judgment of Apex Court in Janardhanam Prasad v. Ramdas reported in 2007 (2) Civil Court Cases 568 (S.C.), the Apex court has observed as under :- “16. Counsel for the appellant has referred the judgment of Apex Court in Janardhanam Prasad v. Ramdas reported in 2007 (2) Civil Court Cases 568 (S.C.), the Apex court has observed as under :- “16. But before we advert to the said question, we may consider the effect of refusal on the part of the 2nd Defendant to execute the deed of sale within 20 days from the date of entering into the said agreement for sale. We have noticed hereinbefore that father-in-law of the Respondent No. 1 categorically stated that he, at all material times he was awarded that the 2nd Defendant was refusing to execute the agreement of sale. They had, therefore, the notice, that the defendant no. 1 had refused to perform his part of contract. The suit should have, in the aforementioned situation, been filed within three years from the said date. We are not oblivious of the fact that performance of a contract may be dependent upon several factors. The conduct of the parties in this behalf is also relevant. The parties by their conduct or otherwise may also extend the time for performance of contract form time to time, as was noticed by this Court in Panchanam Dhara & Ors. V. Monmatha Nath Maity (Dead) through LRs. & Anr. [2006(2) Apex Court Judgments 625 (S.C.)” 2006 (3) Civil Court Cases 358 (S.C.) : (2006) 5 SCC 340]. 18. Furthermore, the appellant is in possession of the said land. He had dug a well. He had made improvement on the suit land. Digging of well as also making improvements was within the notice of the respondent. The witnesses examined on his behalf had categorically admitted the same. In that view of the matter too, in our opinion, it was a fit case where the discretionary jurisdiction of the Court under Section 20 of the Specific Relief Act should not have been exercised and, instead, monetary compensation could be granted. {See M. Meenakshi & Ors. V. Metadin Agarwal (Dead) by LRs. & Ors. [(2006) 7 SC 470]. 19. This question was yet again considered in Jai Narain Parasrampuria (Dead) & Ors. V. Pushpa Devi Saraf & Ors. {See M. Meenakshi & Ors. V. Metadin Agarwal (Dead) by LRs. & Ors. [(2006) 7 SC 470]. 19. This question was yet again considered in Jai Narain Parasrampuria (Dead) & Ors. V. Pushpa Devi Saraf & Ors. [2006(3) Apex Court Judgments 612 (S.C.): 2007 (1) Civil Court Cases 121 (S.C.) : (2006) 7 SCC 756], wherein it was held that for balancing the equities in a given case, compensation can be awarded in lieu of grant of decree of specific performance of contract.” 16. In the aforesaid case law, the plaintiff was not in possession of the property in dispute. The aforesaid case law is not applicable in the present case as the plaintiff in present case was in possession of the property in dispute. 17. Counsel for the appellant has further relied upon the judgment of Lt. Col. K.C. Bheemaiah v. Kakamada A. Kuttappa and others, AIR 2004 Karnataka 224, to the following effect :- “22. The only other aspect that needs to be considered is whether the appellant is also entitled for payment of interest at the stipulated rate. The provisions of section 22 however do not make any mention about the interest payable on the amount received by the defendants, whether the same be contractual or otherwise. The fact however remains that the defendants have use of the money paid by the plaintiff all this time. Refund of the amount so paid will remain inequitable consideration and may not be awarded at the rate contracted between the parties. In the circumstances and having regard to the bank’s rate of interest prevalent currently and in the immediate past. We deem it just and proper to direct that the amount of Rs. 2,50,000/- received by the respondents in terms of the agreement shall be refundable to the plaintiff with interest from the date of the suit till. The date of refund at the rate of 8% p.a.” 18. The facts of the aforesaid case law is quite distinguishable from the facts of the present case because in the present case, there was no such agreement that in case of non execution of the sale deed, the amount taken against the execution of sale deed will be refundable. 19. Further, the counsel for the appellant has referred the judgment of Mohd. 19. Further, the counsel for the appellant has referred the judgment of Mohd. Abdul Razak v. B. Venkatesh @ Vankataiah; 2007 (1) Civil Court Cases 176 (A.P.) (D.B.), to the following effect :- “22. As could be seen from the pleadings as well as evidence on both sides, each party is throwing blame against other. Section 9 of the Specific Relief Act, 1963 (for short ‘the Act’) enables a defendant to raise, in a suit of specific performance, all those defences which he is eligible in a suit on contract. Section 10 enumerates the cases in which specific performance is a discretionary remedy. Section 16 lays down grounds on which the relief may be refused to the plaintiff on account of his conduct; and Section 20 direct the circumstances in which the discretion may or may not be exercised in granting the relief. It is settled proposition of law that where time is of the essence of the contract, and the plaintiff has failed to perform his part of contract within the stipulated time, specific performance can be refused. Time, in contracts for sale of immovable property is not of the essence of the contract, unless the nature of the property and surrounding circumstances make it so. Equity treats limits of time as supporting to the main purpose of the parties. So long as the plaintiff is willing to make payment on or before the date which was prescribed or within a reasonable time, the ordinary presumption, that the time is not of essence of the contract of sale of immovable property, would not be displaced. It is said that where the time is not of the essence of the contract for sale of immovable property, some delay in payment of consideration money is no bar to specific performance; provided the delay has caused no prejudice to the defendant or abandonment by the plaintiff or such a change as would make the relief inequitable. If a plaintiff is negligent and dilatory in carrying out his part of the contract for sale of immovable property, the plaintiff cannot get his contract specifically performed.” 20. The aforesaid case law is squarely distinguishable from the case in hand because the plaintiffs were always willing to get the sale deed executed and he had already paid the sale consideration with regard to the property in dispute. 21. The aforesaid case law is squarely distinguishable from the case in hand because the plaintiffs were always willing to get the sale deed executed and he had already paid the sale consideration with regard to the property in dispute. 21. In the other hand, counsel for the respondent has referred the judgment of P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi & Anr., 2007 AIR SCW 1383, to the following effect :- “17. The contention of the appellant has been rejected both by the learned Trial Judge as also by the High Court upon assigning sufficient and cogent reasons. The agreement has been held to have been executed by the parties in support whereof large number of witnesses had been examined. The High Court, in particular in its judgment, has categorically opined that when the respondents served a notice upon the appellant on 29.05.1981, it was expected of the appellant to raise a contention that the said agreement was a sham one or nominal one and was not meant to be acted upon but it was not done. Failure on the part of the appellant to do so would give rise to an inference that the plea raised in the suit was in afterthought. 18. The findings of facts by both the Courts are concurrent ones and in our opinion no case has been made out to interfere therewith by this Court. 19. Submission of Mr. Chandrashekhar to the effect that having regard to the rise in price of an immovable property in Bangalore, the Court ought not to have exercised its discretionary jurisdiction under Section 20 of the Specific Relief Act is stated to be rejected. We have noticed hereinbefore that the appellant had entered into an agreement for sale with others also. He had, even after 11.5.1979, received a sum of Rs. 5,000/- from the respondent. He with a view to defeat the lawful claim of respondent no. l 1 had raised a plea of having executed a prior agreement for sale in respect of self-same property in favour of his son-in-law who had never claimed any right thereunder or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. l 1 had raised a plea of having executed a prior agreement for sale in respect of self-same property in favour of his son-in-law who had never claimed any right thereunder or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in the price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale [See P.D’Souza (Supra) and Jai Narain Parasrampuria (Supra)’”. 22. Counsel for the respondent has further invited my attention towards the judgment of P.D’Souza v. Shondrilo Naidu; 2004 AIR SCW 4653, to the following effect :- “11. The High Court accepted the contentions advanced on behalf of the plaintiff and held that on the basis of materials on record it was proved that the plaintiff has all along been ready and willing to perform her part of contract holding : “The question is whether on a particular day i.e. before the expiry of the period, for which extension has been granted, the plaintiff was ready to perform her part of the contract. The fact that subsequently the money was withdrawn does not indicate that readiness and willingness has gone. The very fact that the money was available in D.S. is abundantly clear that the plaintiff was ready and willing.” 12. The High Court furthermore rejected the contention of the defendant to the effect that the Court should not exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act on the ground of hardship of the defendant. 45. Bhan, J., however, while expressing his dissention in part observed : 38. It is well-settled that in cases of contract for sale of immovable property the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds. Further, the defendant cannot take advantage of his own wrong and then pleaded that decree for specific performance would be an unfair advantage to the plaintiff. 40. Excalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him. 40. Excalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him. It would depend on the facts and circumstances of each case.” 46. The learned Judge further observed that delay in performance of the contract due to pendency of proceedings in court cannot by itself be a ground to refuse relief of specific performance in absence of any compelling circumstances to take a contrary view. However, the learned Judge noticed the events which occurred subsequent to the passing of the decree and held : “45. The appellant has always been ready and willing to perform her part of the contract at all stages. She has not taken any advantage of her own wrong. The appellant is in no way responsible for the delay at any stage of the proceeding. It is the respondents who have always been and are trying to wriggle out of the contract. The respondents cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would amount to an unfair advantage to the appellant. 46. Requiring the appellant to pay further sum of Rs. 40 lakhs would may amount to frustrating the agreement itself as the appellant may not be in a position to pay the sum of Rs. 40 lakhs. Respective counsel for the parties had quoted the figure of a particular sum which could be paid to the appellant in lieu of avoiding the decree of specific performance. The appellant had not made an offer to pay any additional sum over and above the quoted price to sell by way of compensation. It does not indicate the financial position of the appellant to pay the additional sum of Rs. 40 lakhs. With due respect, in my view, it would be unfair to grant the decree of specific performance by one hand and take it back by the other. 47. It does not indicate the financial position of the appellant to pay the additional sum of Rs. 40 lakhs. With due respect, in my view, it would be unfair to grant the decree of specific performance by one hand and take it back by the other. 47. For the reasons stated above, I am of the view that the appellant is entitled to the specific performance of agreement to sell the flat No. 71 on the 7th floor of Divya Prabha Building on the price mentioned in the agreement to sell which would be subject to the terms (iii), (iv), (v) and (vi) of the last paragraph of the judgment of my learned Brother. There would be no order as to costs: 47. The said decision cannot be said to constitute a binding precedent to the effect that in all cases where there had been an escalation of prices the court should either refuse to pass a decree on specific performance of contract or direct the plaintiff to pay a higher sum. No law in absolute terms to that effect has been laid down by this Court nor is discernible from the aforementioned decision.” 23. In P.C. Varghese v. Devaki Amma Balambika Devi and others (2005) 8 SCC 486, the Apex Court has observed as under :- “20. It may be true that the agreement was to be performed within a period of three months, but it was extended. The appellant herein not only in the suit but also even prior thereto asked the respondents herein by a notice dated 23.3.1981 (Ext. P-2) to execute a deed of sale in relation to the shares of Respondents 1 to 3 herein i.e. excluding the share of the minor stating : “… Even now I stick on to his suggestion and am prepared to purchase the remaining portion of the property minus the minor’s share and am prepared to purchase the minor’s share also after obtaining the permission from court. It is further strange to see that in your letter under reference you have invited my attention to the aforesaid suggestion of mine without specifically, unambiguously stating whether you are prepared for the suggestion and if so on which date the document can be executed for the remaining share of the property after deducing the minor’s share. It is further strange to see that in your letter under reference you have invited my attention to the aforesaid suggestion of mine without specifically, unambiguously stating whether you are prepared for the suggestion and if so on which date the document can be executed for the remaining share of the property after deducing the minor’s share. So kindly inform me whether you accept the aforesaid suggestion and, if so, on which date we can execute the document. In that case let the court take its own time to grant the permission certificate and after you obtain the said certificate from the court, I will purchase the minor’s share also. Further, I request you to extend, period of agreement in writing. 21. In reply to the said notice Respondent 5 contended that as the share of the fourth respondent was not demarcated, the appellant will have to wait till the required documents from the authorities are obtained. Thereafter, another legal notice was issued on 31.7.1981 asking the respondents to execute the sale deed in his favour and his nominee failing which a legal proceeding shall be initiated for specific performance of the said agreement for sale. It is not in dispute that the appellant was all along ready and willing to perform his part of the contract. 28. In Dalsukh M. Pancholi v. Guarantee Life and Employment Insurance Co. Ltd. AIR 1947 PC 182 two questions were posed by the Court : (a) was the term “subject to the court’s approval” an essential term of the agreement? And (b) if it was essential, by whose default did it fail? Therein, in the facts of the case, the Privy Council opined that the approval of the attaching court was insisted on as a necessary condition for effecting the sale, for without it the title to the property was not at all safe. Once such condition was found to be an essential one the contract was held to be a composite contract. However, in that case, the vendor therein was not in a position to convey his own interest in the property without the court’s sanction and the contract. In the facts and circumstances of the case, Defendants 1 to 3 could transfer their properties having definite share in favour of the appellant. 30. The submission of Mr. However, in that case, the vendor therein was not in a position to convey his own interest in the property without the court’s sanction and the contract. In the facts and circumstances of the case, Defendants 1 to 3 could transfer their properties having definite share in favour of the appellant. 30. The submission of Mr. Reddy to the effect that this Court should not exercise its discretionary jurisdiction is stated to be rejected. No such contention has been raised before the High Court. Even otherwise it has not been shown, having regard to the conduct of the parties, as to why such a discretionary jurisdiction should not be exercised. An alternative plea of refund of earnest amount and damages cannot itself be a bar to claim a decree for specific performance of contract.” 24. In Diwan Chand v. Kuldip Kumar Mehta reported in [2008 (64) AIC 603 (P&H), H.C.)], relying upon the judgment of Govind Ram v. Gian Chand (2000) 7 SCC 548 = 2000 (41) ALR 601 (SC); K. Narendra v. Riviera Apartments P. Ltd. 1999 (5) SCC 77 = 1999 (37) ALR 9 (Sum) SC and Sargunam (Dead) by LRS. V. Chidambaram (2005) 1 SCC 162, it has been observed that inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature have not been considered as sufficient grounds to decline the decree for the specific performance of the agreement. The High Court has observed as under :- “7. The argument that the plaintiff is not entitled to a decree for specific performance in view of the comparative hardship suffered by the appellant, is again not tenable. The defendant has denied even the execution of the agreement. There is no pleading in respect of hardship in the written statement. It is for the defendant to plead and prove the circumstance to decline the relief of specific performance in terms of section 20(2) of the Specific Relief Act, 1963. Though it is well settled that the jurisdiction to grant decree of specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the Court is not arbitrary and is based upon judicial principles. The hardship is a question of fact. Though it is well settled that the jurisdiction to grant decree of specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the Court is not arbitrary and is based upon judicial principles. The hardship is a question of fact. The escalation of price of the real estate, reference Govind Ram v. Gian Chand (2000) 7 SCC 548 = 2000 (41) ALR 601 (SC), inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, Reference K. Narendra v. Riviera Apartments P. Ltd. 1999 (5) SCC 77 = 1999 (37) ALR 9 (Sum) (SC) and Sargunam (Dead) by LRs. V. Chidambaram (2005) 1 SCC 162, have not been considered as sufficient grounds to decline the decree for the specific performance of the agreement. 25. In view of the aforesaid, the substantial question of law involved in the second appeal is decided against the appellant. 26. In Kamti Devi (Smt.) and Anr. V. Poshi Ram (2001) 5 SCC 311, the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. 27. In Thiagaraja v. Sri Venugopalaswamy B. Koil (2004) 5 SCC 762, it has been held that the High Court in its jurisdiction under Section 100 of C.P.C. was not justified in interfering with the findings of fact. The court observed that to say the least the approach of the High Court was not proper. This is the obligation of the Courts of law to further clear the intendment of the legislature and not frustrate it by excluding the same. The Apex Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. 28. In the case of Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Apex Court has observed that the High Court was not justified in interfering with the concurrent findings of fact. 28. In the case of Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Apex Court has observed that the High Court was not justified in interfering with the concurrent findings of fact. The Apex Court has observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. 29. In the case of Harjeet Singh v. Amrik Singh (2005) 12 SCC 270, the Apex Court has held that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. 30. In H.P. Pyarejan v. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under :- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial question of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.” 31. In Commissioner Hindu Religious & Charitable Endowments v. P. Shanmugama and others (2005) 9 SCC 232, it has been held as under :- “14. In our view, High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.” 32. In view of the aforesaid, I find no merit in the second appeal. Second appeal, therefore, lacks merit and is liable to be dismissed. 33. Consequently, second appeal is dismissed. No order as to costs.