Judgment Hon'ble JAIN, J.—The plaintiff-appellant has preferred this regular first appeal under Section 96 of the Code of Civil Procedure against the impugned judgment and decree dated 25th August, 1988 passed by the Additional District Judge No. 1, Alwar in Civil Suit No. 7/81 (58/78), whereby suit of the plaintiff for specific performance of the contract has been dismissed. 2. Briefly stated the relevant facts of the appeal are that on 6th October, 1978, the plaintiff filed a suit for specific performance of the agreement in respect of disputed property i.e. double storied shop. It was pleaded in the suit that on 16th January, 1978, the defendants agreed to sell the disputed property situated in village Kathoomar, Tehsil Laxmangarh to plaintiff for a sum of Rs. 30,000/-. Rs. 5,000/- were paid as an advance. An agreement was executed in this regard. The remaining amount was to be paid at the time of execution of the sale deed. The plaintiff was in possession of the disputed property even prior to the execution of the agreement. The plaintiff requested the defendants to execute the sale deed after taking the remaining amount of the contract and in pursuance thereof, the defendants took a sum of Rs. 2,000/- towards stamps on 13th March, 1978. The stamps were purchased by defendants. The plaintiff wanted to execute the sale deed of first floor in his own name and in the name of his wife for second floor. The defendants purchased the stamps, but they returned back to their village after informing the plaintiff that they will again come to execute the sale deed on 31st March, 1978. It was further pleaded that at the time of execution of the sale deed one Padam Chand, the relative of defendants came and at his instance the sale deed was not executed. The plaintiff again requested the defendants to execute the sale deed number of times, a notice dated 18th May, 1978 was also served, but defendants did not execute and register the sale deed. It was also pleaded in the plaint that in pursuance of notice of plaintiff, the defendants gave a reply that plaintiff was not having the remaining amount of Rs. 25,000/- , therefore, sale deed was not executed and the said fact is absolutely false and baseless. The plaintiff was ready to pay the remaining amount of Rs. It was also pleaded in the plaint that in pursuance of notice of plaintiff, the defendants gave a reply that plaintiff was not having the remaining amount of Rs. 25,000/- , therefore, sale deed was not executed and the said fact is absolutely false and baseless. The plaintiff was ready to pay the remaining amount of Rs. 25,000/- on 31st March, 1978 and is still ready to pay the remaining amount and other expenses of registration charges. In these circumstances, the present suit was instituted with a prayer that decree of specific performance of the contract be passed and in case the same is not passed then a decree of a sum of Rs. 12,000/- be passed in favour of the plaintiff. 3. The defendants filed their written-statement on 31st July, 1980, wherein the contents of the plaint, as mentioned, were denied. It was pleaded by defendants that the defendants were in urgent need of money and they even accepted the request of the plaintiff to execute the sale deed of first floor of the disputed property in the name of his wife, they purchased the stamps on 13th March, 1978 and handed over the same to plaintiff for its execution and registration, but plaintiff told them that he could not arrange the money, therefore, 15 days' time may be granted to him. The defendants accepted his request and they granted time upto 31st March, 1978. The defendants again came back at Kathoomar on 31st March, 1978 for registration of the sale deed, but plaintiff failed to arrange the remaining amount of Rs. 25,000/- as per terms of the agreement. The defendants also pleaded that it is absolutely wrong to say that one Padam Chand came and at his instance the sale deed was not got registered. In additional plea, it was pleaded that the defendants were over ready for execution and registration of the sale deed and for that purpose they came at Kathoomar on 13th March, 1978 and again on 31st March, 1978, but on both the dates the plaintiff could not arrange the remaining amount of money, therefore, present suit is liable to be dismissed and amount of Rs. 5,000/- paid as an advance has been forfeited. It was, therefore, prayed that suit of plaintiff be dismissed. 4. 5,000/- paid as an advance has been forfeited. It was, therefore, prayed that suit of plaintiff be dismissed. 4. On the basis of pleadings of the parties, the learned trial Court framed seven issues on 14th November, 1980, which have been reproduced in the impugned judgment passed by the trial Court. In support of the case, the plaintiff examined himself as PW.1 and produced documentary evidence Ex. 1 to Ex. 14 including copy of agreement Ex. 1. The defendants did not lead any evidence despite grant of number of opportunities. Ultimately the ex-parte proceedings were drawn against them on 3rd December, 1987. The trial Court, after hearing both the parties and examining the record of the case, dismissed the suit of the plaintiff with no order as to costs. Being aggrieved with the same, the present appeal has been preferred on behalf of the plaintiff. 5. The learned counsel for the appellant contended that the trial Court has committed an illegality in deciding issue No. 1 against the plaintiff. He contended that plaintiff was always ready and willing to pay the remaining amount of Rs. 25,000/-, which is clear that on 13th March, 1978 itself he paid Rs. 2,000/- for purchasing the stamps and in fact the stamps were also purchased by defendants and sale deed was got written on it, but on the date of execution and registration of the sale deed, one Padam Chand came who was near relative of defendants and at his instance, the sale deed was not signed by the defendants and as such it was not registered. He referred the finding of the learned trial Court with regard to issue No. 1 Issue No. 1 is as to whether the defendants came at Kathoomar on 13th March, 1978 and 31st March, 1978 and on that day the plaintiff had arranged the remaining amount of Rs. 25,000/- and plaintiff was ready and willing to perform his part of contract. The issue No. 2 is as to whether the plaintiff is entitled to a decree of specific performance. The issue No. 5 is that in case a decree of specific performance is not passed, then whether the plaintiff is entitled to get refund of Rs. 12,000/- from the defendants. The learned trial Court, while discussing issue No. 1 referred the statement of PW. 1 Mahesh Chand and documentary evidence including pass-book Ex. The issue No. 5 is that in case a decree of specific performance is not passed, then whether the plaintiff is entitled to get refund of Rs. 12,000/- from the defendants. The learned trial Court, while discussing issue No. 1 referred the statement of PW. 1 Mahesh Chand and documentary evidence including pass-book Ex. 10, copy of cash-book Ex. 11/1 to Ex. 14/1 and recorded a finding that plaintiff had not arranged the remaining amount of Rs. 25,000/- on both the dates when defendants were ready to execute and register the sale deed and consequently decided issue No. 1 against the plaintiff. 6. I, myself examined the pleading and evidence available on record in the light of submission of learned counsel for the parties. The plaintiff in para 8 and 9 of the plaint specifically pleaded that the plaintiff was ready and willing to pay the remaining amount of Rs. 25,000/- on 31st March, 1978 and he is still ready to pay the same to defendants. This facts has been denied by the defendants in the written statement. PW.1 Mahesh Chand in his statement, has stated that he was ready to pay Rs. 25,000/- on the date of execution and registration of the sale deed. He had sufficient money in his Bank account and shop, both. he placed on record his pass-book of Punjab National Bank Ex. 10, wherein there was a balance of Rs. 17,008.83/-. The copies of cash book of the plaintiff Ex. 11 to Ex. 14 have also been placed on record, according to which the cash balance of Rs. 18,148.88/- was there with the plaintiff on 11st March, 1978, Rs. 18,527.88/- on 15th March, 1978, a sum of Rs. 19,478.43/- on 26th March, 1978 and a sum of Rs. 20,050.87/- (Ex. 14) on 7th April, 1978. It is relevant to mention that defendants have not led any evidence whatsoever to the effect that they went on 13th March, 1978 or 31st March, 1978 and they were ready to execute and register the sale deed, but plaintiff failed to pay the remaining amount of Rs. 25,000/- and in these circumstances, they could not execute and register the sale deed. Despite number of opportunities granted to defendants, they could not lead any evidence and ultimately the ex-parte proceedings were drawn against them by the trial Court vide order dated 3rd December, 1987. 25,000/- and in these circumstances, they could not execute and register the sale deed. Despite number of opportunities granted to defendants, they could not lead any evidence and ultimately the ex-parte proceedings were drawn against them by the trial Court vide order dated 3rd December, 1987. In these circumstances, it is clear that defendants did not lead any evidence in support of their contention. From the scrutiny of statement of PW.1 and other documentary evidence produced on record, it is clear that plaintiff was ready and willing to pay the remaining amount of Rs. 25,000/- on 31st March, 1978. The plaintiff had already paid Rs. 2000/- to purchase the stamps, which were purchased by defendants on 13th March, 1978 and sale deed was got written on it, which is clear from Ex. 2 and 3. In these circumstances, in my view, the learned trial Court committed an illegality in deciding issue No. 1 against the plaintiff. Thus, the finding of the learned trial Court in respect of issue No. 1 is reversed and the same is decided in favour of the plaintiff. 7. Now the question remains for decision in respect of issue No. 2 and 5 as to whether the plaintiff is entitled to get a decree of specific performance of the contract or a decree of Rs. 12,000/- in his favour. In this connection, an important piece of evidence on record is Ex. 1 agreement, on the basis of which the present suit has been filed by the plaintiff. Ex. 1, agreement specifically reveals that agreement was executed in between plaintiff and defendant in respect of disputed shop for a sum of Rs. 30,000/- and Rs. 5,000/- was paid as an advance and remaining amount of Rs. 25,000/- was to be paid at the time of registration of the sale deed, which was to be paid upto Falgun Sudi 15 Samwat 2034 i.e. upto 24th March, 1978. Both the parties further agreement in the agreement Ex. 1 that in case the defendants refuse to execute and register the sale deed, then the plaintiff will be entitled to get refund of Rs. 5,000/- paid as an advance and further a sum of Rs. 5,000/- towards damages; total Rs. 10,000/-. It has further been mentioned that in case the plaintiff does not pay the remaining amount of the contract, then Rs. 5,000/- paid by him towards advance will be forfeited. 5,000/- paid as an advance and further a sum of Rs. 5,000/- towards damages; total Rs. 10,000/-. It has further been mentioned that in case the plaintiff does not pay the remaining amount of the contract, then Rs. 5,000/- paid by him towards advance will be forfeited. The expenses of registry will be borne by the plaintiff. The plaintiff in his plaint, has also pleaded, in alternative, that in such circumstances the plaintiff is entitled to a decree of Rs. 12,000/- i.e. Rs. 5,000/- paid towards advance amount, Rs. 5,000/- towards damages and Rs. 2,000/- towards expenses incurred by him for purchasing the stamps. In view of the above finding in respect of issue No. 1, it is clear that plaintiff was ready and willing to pay a sum of Rs. 25,000/-, but the sale deed has not been executed by the defendants and as per term of contract, the amount of Rs. 5,000/- paid towards advance cannot be allowed to be forfeited, but it will be refunded to the plaintiff along-with damages, as agreed by both the parties in the agreement Ex. 1. As per Section 20 of the Specific Relief Act, 1963, the plaintiff cannot get a decree of specific performance as a matter of right as the said decree is discretionary. After considering all the facts and circumstances of the case, I am not inclined to pass a decree of specific performance in favour of the plaintiff. However, as per the terms and conditions of the agreement, the plaintiff is entitled to get the refund of his advance of Rs. 5,000/-, for damages Rs. 5,000/- and Rs. 2,000/- incurred by him for purchasing the stamps. The learned counsel for the defendants has not disputed this term and condition of the agreement and has not seriously contested the said prayer of the plaintiff-appellant. In these circumstances, I am inclined to pass a decree of a sum of Rs. 12,000/- in favour of the plaintiff-appellant. 8. So far as award of interest on the advance amount and decreetal amount is concerned, although there is no specific term and condition in the agreement Ex. 1, but in the interest of justice, I am inclined to award interest @ 12% per annum on the advance amount i.e. Rs. 5,000/- + Rs. 2,000/- incurred by plaintiff to purchase the stamps i.e. Rs. 1, but in the interest of justice, I am inclined to award interest @ 12% per annum on the advance amount i.e. Rs. 5,000/- + Rs. 2,000/- incurred by plaintiff to purchase the stamps i.e. Rs. 7,000/- from the date of filing of suit, but so far as amount of Rs. 5,000/- towards damages is concerned, I am inclined to award interest thereon from the date of judgment passed by the trial Court treating this amount as part of decreetal amount. 9. Consequently the appeal is allowed. The impugned judgment passed by the trial Court is set-aside. The plaintiff's suit for specific performance is dismissed, but his suit for recovery of Rs. 12,000/- is decreed with interest @ 12% on Rs. 7,000/- from the date of filing of the suit i.e. 6th October, 1978 till the date of realization and interest @ 12% on Rs. 5,000/- from the date of judgment of the trial Court i.e. 25th August, 1988 till the date of realization. 10. There will be no order as to costs.