Judgment: Rajesh Bindal, J. 1. The defendants are before this Court against the judgment and decree of the learned Lower Appellate Court whereby that of the trial court was reversed and the suit filed by the respondent-plaintiff, was decreed. 2. The facts, as are evident from the judgment of the Courts below, are that on 5.1.1990, the appellants entered into an agreement to sell land measuring 13 bighas 2 biswas with the respondent-plaintiff for a total consideration of Rs. 2,30,000/-. Rs. 10,000/- was paid as earnest money. Certain conditions were settled at the time of execution of agreement to sell. It was agreed that the respondent will issue a fixed deposit of Rs. 1,30,000/- in favour of the appellants up to 31.3.1990. Thereafter, the appellants shall get the sale-deed registered on receipt of Rs. 90,000/- before the Sub-Registrar. It was further agreed that till such time the sale-deed is executed, the respondent-plaintiff shall pay interest @ 18% per annum to the appellants on Rs. 90,000/-. On 11.1.1990, fixed deposit receipt with a maturity value of Rs. 1,40,000/- was issued to the appellants. Appellant no. 1 had also realised 13 cheques of the amount of Rs. 2,100/- each on different dates from the respondent and further monthly cheques of Rs. 2,100/- from March, 1991 onwards. The same was on account of profits in the scheme under which Rs. 1,30,000/- were deposited with the respondent-plaintiff for a period of two years. Thereafter, two cheques for Rs. 3,375/- dated 1.11.1990 were given. Last date for execution of sale-deed was 30.1.1991. As the same was holiday, the respondent-plaintiff appeared before the Sub-Registrar on 31.1.1991 but the appellants did not appear as a result of which the sale-deed was not registered. Thereafter, the respondent-plaintiff filed the suit on 25.3.1991. The same was contested by the appellants on the plea that the last date fixed for registration of sale-deed was 31.3.1990. Thereafter, with mutual understanding the agreement to sell was cancelled and the amount received by the appellants was returned by way of banker cheque which was encashed by the respondent. However, it was admitted that though there was no extension of time for registration of sale-deed, but it was agreed to be executed on 30.1.1991. Thereafter, with mutual understanding the agreement to sell was cancelled and the amount received by the appellants was returned by way of banker cheque which was encashed by the respondent. However, it was admitted that though there was no extension of time for registration of sale-deed, but it was agreed to be executed on 30.1.1991. On the pleadings of the parties, the learned trial Court framed the following issues:- (1) Whether the agreement dated 5.1.1990 was cancelled and earnest money has already been refunded by the defendants, if so to what effect? OPD (2) Whether the suit of the plaintiff is barred by time? OPD (3) Whether Ms. Pamila Syal is not competent to file the present suit? OPD (4) Relief. 3. The trial Court though found that last date for registration of sale-deed was 31.1.1991 and not 30.1.1990, however, it was opined that in terms of letter dated 18.5.1991, Ex. D5, the agreement stood cancelled as the appellants had returned the amount received as earnest money, hence, dismissed the suit. 4. In appeal filed by the respondent-plaintiff, the learned Lower Appellate Court found that vide letter dated 18.5.1991, as was written by the appellants to the respondent-plaintiff, it cannot be opined that the agreement to sell between the parties was cancelled, hence, the learned Lower Appellate Court directed for execution of sale-deed. It is against the aforesaid judgment and decree of the learned Lower Appellate Court that the appellants-defendants filed the second appeal before this Court which was initially listed on 14.7.2000 and after hearing learned counsel for the appellants, this Court dismissed the same in limine finding no infirmity in the judgment and decree of the learned Lower Appellate Court. The appellants challenged the order passed by this Court by filing Special Leave Petition before Hon'ble the Supreme Court which was converted into appeal and finally disposed of on 17.2.2009 by remitting the matter back and directing decision thereof afresh after framing substantial question (s) of law. It is how the matter is before this Court. 5. Though initially in memo of appeal filed by the appellants, no substantial question of law was framed, however, after the case was remitted back by Hon'ble the Supreme Court, learned counsel for the appellants filed application along with following substantial questions of law:- "1. Whether the findings of the Ld. It is how the matter is before this Court. 5. Though initially in memo of appeal filed by the appellants, no substantial question of law was framed, however, after the case was remitted back by Hon'ble the Supreme Court, learned counsel for the appellants filed application along with following substantial questions of law:- "1. Whether the findings of the Ld. Trial Court in its judgment dated 9.1.1996 recorded in para 21 could be set aside by the ld. Lower Appellate Court vide para 15 of its impugned judgment, in disregard of Section 107 of the Code of Civil Procedure? 2. Whether the findings of the Ld. Lower Appellate Court in para 15 of its impugned judgment are liable to be set aside because it has not considered the evidence on record of the case e.g. Exhibit D-3 dated 18.5.1991? 3. Whether the ld. Lower Appellate Court has transgressed its jurisdiction conferred by Section 107 of the Code of Civil Procedure by not adverting to the material evidence i.e. letter Exhibit D-3 dated 18.5.1991 ? 4. Whether the Ld. Lower Appellate Court could set aside the judgment and decree of the ld. Trial Court when the ld. Trial Court has given a clear finding in para 21 of its judgment that the plaintiff's witnesses were out to support the case of the plaintiff and the case of the plaintiff stands belied ? 5. Whether the Ld. Lower Appellate Court was bound to give reasons in order to set aside the reasoning given by the ld. Trial Court? 6. Whether the agreement to sell Exhibit P-1 dated 5.1.1990 stood cancelled by novation of contract as a result of the letter Exhibit D-3 and encashment of all the cheques which the defendants had given to the plaintiff along with interest and therefore, agreement to sell Exhibit P-1 did not exist ? 7. Whether the Ld. Lower Appellate Court could ignore the civil doctrine of Res Ipsa Loquitur? Which means the thing speak for itself; this maxim means that in certain cases one fact raises prima facie presumption of another fact unless and until the contrary is proved. The ld. Lower Appellate Court should have dismissed the appeal of the plaintiff-respondent because it has received the entire amount back which it had given at the time when the agreement to sell exhibit P-1 dated 5.1.1990 was executed?" 6. The ld. Lower Appellate Court should have dismissed the appeal of the plaintiff-respondent because it has received the entire amount back which it had given at the time when the agreement to sell exhibit P-1 dated 5.1.1990 was executed?" 6. At the time of arguments, learned counsel for the appellants pressed substantial questions of law at Sr. No. 2, 4, 6 and 7 only. 7. It was further submitted that another question also needs to be decided namely as to whether the learned Lower Appellate Court was right in directing execution of the sale-deed instead of granting the alternative relief of refund of earnest money or payment of some damages? 8. Learned counsel for the appellants submitted that the learned Lower Appellate Court had gone wrong in reversing the well reasoned judgment and decree of the trial court whereby the suit filed by the respondent-plaintiff was dismissed. It had failed to appreciate correctly document Ex. D-3 in terms of which the agreement stood cancelled as the entire amount received by the appellants had been returned back in terms of the settlement arrived at between the parties. Though it is not in dispute that the appellants had received Rs. 62,500/- by way of different cheques including the amount of Rs. 10,000/- received in cash at the time of execution of agreement to sell, however, learned counsel for the appellants submitted that with the return of Rs. 61,434/- was in terms of the settlement arrived at between the parties, in fact, nothing was due thereafter even if in the earlier part of the agreement it was mentioned that the appellants shall be liable to refund the amount received along with interest thereon. But once cheque of RS. 61,434/- was sent by the appellants and the same was encashed by the respondent, the agreement stood cancelled. It was further submitted that amount of cheque of Rs. 61,434/- was debited in the account of the appellants and being the amount payee cheque must have been credited in the account of the respondent. The submission is that as agreement to sell itself stood cancelled on return of the earnest money, there was no question of direction for registration of sale-deed. The learned Lower Appellate Court had gone wrong in opining that the amount may have been paid on account of certain other transaction between the parties, whereas there was none. The submission is that as agreement to sell itself stood cancelled on return of the earnest money, there was no question of direction for registration of sale-deed. The learned Lower Appellate Court had gone wrong in opining that the amount may have been paid on account of certain other transaction between the parties, whereas there was none. He further submitted that the respondent company having gone in liquidation, no business activity is continuing at present, hence, they can be granted alternative relief in case the agreement to sell is proved, in the form of damages. 9. Heard learned counsel for the appellants and perused the paper book and the record. 10. When the appeal was initially filed, no substantial question of law (s) was framed in the appeal. The matter came up for preliminary hearing before this Court on 14.7.2000 when the same was dismissed at the admission stage finding no infirmity in the judgment of the learned Lower Appellate Court. The order passed is extracted below:- "The only argument raised by the learned counsel for the appellants, while arguing the instant appeal, is that the agreement to sell was revoked by a subsequent agreement dated 25.4.1991. Exhibit D.3 was executed for the revocation of the agreement to sell dated 5.1.1990, according to which Shri V.K. Gupta, Executive Director of the respondent/company met the appellant Smt. Santosh Batra on 25.4.1991. The aforesaid Shri V.K. Gupta made an offer on behalf of the company to the effect that if the earnest money as well as the interest accrued on the FDR was refunded to the company along with interest (as per clause-2 of receipt No. 5227) by the appellant/company it would no longer be interested in the purpose of the said land. It is stated that an amount of Rs. 61,434/- was passed on to the respondent/company vide cheque No. 337185 dated 18.5.1991 by the respondent/company to the appellants as refund agreed upon vide Exhibit D.3. The appellant had received Rs. 10,000/- as earnest money on 5.1.1990 at the time of entering into the agreement to sell. The appellants had also received 13 cheques of Rs. 2100/- each as detailed in paragraph 3 of the order of the trial Court. Other than the aforesaid amount, the appellants had realised Rs. 2100/- each vide cheques Nos. 724 to 731, 727, 734, 35 and 38 from March 19, 1991 onwards. The appellants had also received 13 cheques of Rs. 2100/- each as detailed in paragraph 3 of the order of the trial Court. Other than the aforesaid amount, the appellants had realised Rs. 2100/- each vide cheques Nos. 724 to 731, 727, 734, 35 and 38 from March 19, 1991 onwards. Learned counsel for the appellants stated that the aforesaid payments were refunded along with the stipulated interest by paying the respondent/company Rs. 61,434/- vide cheque No. 337185 dated 18.5.1991. A sum total of the principal amount received by the appellant as depicted in the aforesaid paragraph comes to Rs. 62500/- whereas the deposit made by the appellants was only Rs. 61434/-. The aforesaid amount of Rs. 62500/- does not include interest expressed in Exhibit D. 3. It is, therefore, obvious that the amount of Rs. 61434/- had no nexus with the agreement to sell or the cancellation/revocation thereof. In the aforesaid view of the matter, I find no infirmity in the order of the lower appellate Court. Instant appeal is accordingly dismissed." 11. Being aggrieved, the appellants approached Hon'ble the Supreme Court whereby the order of this Court was set aside and the matter was remitted back vide order dated 17.2.2009. A perusal of the order passed by Hon'ble the Supreme Court shows that the matter was remitted back while referring to judgment of Hon'ble the Supreme Court in Gurdev Kaur and others vs. Kaki and others (2007) 1 SCC 546 , which provided that the High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial question of law which is to be framed at the time of admission of the second appeal. The present appeal was never admitted. 12. As far as question nos. 1 to 4 framed by the appellants are concerned, the same are in fact one i.e. pertaining to import of document, Ex. D-3, a letter dated 18.5.1991, written by the appellants to the respondent. In the case in hand, the admitted facts on record are that appellant no. 1 entered into an agreement to sell land measuring 13 bighas 2 biswas with the respondent-plaintiff on 5.1.1990 for a total sale consideration of Rs. 2,30,000/-. Rs. 10,000/- was received in cash as earnest money. The respondent was to issue one FDR to the appellants for a sum of Rs.1,30,000/- on which interest and other benefits were payable. 1 entered into an agreement to sell land measuring 13 bighas 2 biswas with the respondent-plaintiff on 5.1.1990 for a total sale consideration of Rs. 2,30,000/-. Rs. 10,000/- was received in cash as earnest money. The respondent was to issue one FDR to the appellants for a sum of Rs.1,30,000/- on which interest and other benefits were payable. Balance of Rs. 90,000/- were to be paid at the time of execution of sale-deed. Last date for execution of sale-deed was 30.1.1991. After receipt of the earnest money of Rs. 10,000/- in cash, receipt of Rs. 1,30,000/- was issued in favour of appellant no. 1 and further cheques for payment of interest and other benefits were also issued. Admittedly, in total, the appellants received a sum of Rs. 62,500/- from the respondent-plaintiff by way of different cheques. The last date for execution of sale-deed was 30.1.1991 and the same being holiday, the respondent appeared before the Sub-Registrar on 31.1.1991 and on failure of the appellants to appear before the Sub-Registrar on that day to get the sale deed registered, the suit was filed by the respondent-plaintiff for possession by way of specific performance of agreement to sell dated 5.1.1990 on 25.3.1991. 13. The contention of the appellants is that vide letter dated 18.5.1991, the appellants had returned the cheque of Rs. 61,434/- to the respondent which was duly encashed by it and as a consequence thereof the agreement to sell stood cancelled. The cheque was sent in terms of the settlement of the appellants with the representative of the respondent-company namely V.K. Gupta. He further submitted that no doubt Rs. 62,500/- were received by the appellants but as full and final settlement Rs. 61,434/- were returned by the appellants. Nothing more remained due. 14. A perusal of the document, Ex. D-3 shows that the same was written by the appellants to the respondent referring to some settlement with the representative of the respondent company namely V.K. Gupta. Even if that settlement is considered, it states that on receipt of entire money received by the appellants along with interest, the agreement shall be treated as cancelled. It is not in dispute that the appellants received Rs. 62,500/- whereas the cheque of Rs. 61,434/- only sent by them, which was not even the principal amount what to talk of interest due thereon. It is not in dispute that the appellants received Rs. 62,500/- whereas the cheque of Rs. 61,434/- only sent by them, which was not even the principal amount what to talk of interest due thereon. Under these circumstances, even if the contention of learned counsel for the appellants is accepted that there was some settlement between the parties for cancellation of the agreement, on return of the money received along with interest, the appellants having not adhered to the terms, the agreement cannot be treated to be cancelled. Even otherwise, it was an act on the part of appellant no. 1 only that she mentioned meeting with some official of the respondent company for treating the agreement cancelled and sent a cheque to the company. There is no writing or endorsement by any of the representatives of the company regarding cancellation of the agreement to sell on certain terms and conditions. V.K. Gupta, in a meeting with whom, on behalf of the respondent company, the terms for cancellation of agreement were allegedly agreed, was not summoned by the appellants in Court to prove this fact. Under these circumstances if the learned Lower Appellate Court opined that on payment of Rs. 61,434/- the agreement was not cancelled as the cheque may relate to some other transactions cannot be said to be erroneous or perverse. Hence, the questions are answered against the appellants. 15. As far as the question regarding grant of discretionary relief of refund of earnest money or payment of some damages is concerned, it is not in dispute that no such plea was raised by the appellants before both the Courts below rather the case set up was and is that the agreement to sell stood cancelled. No issue was also framed regarding that. The issue as regards the discretion of the Court to grant relief of specific performance in case of hardship was considered by Hon'ble the Supreme Court in Prakash Chandra vs. Narayan (2012) 5 SCC 403 . It was a case in which the trial court decreed the suit for specific performance of contract and directed for execution of sale-deed and the findings were reversed by the learned Lower Appellate Court. The judgment of the learned Lower Appellate Court was affirmed by the High Court. It was a case in which the trial court decreed the suit for specific performance of contract and directed for execution of sale-deed and the findings were reversed by the learned Lower Appellate Court. The judgment of the learned Lower Appellate Court was affirmed by the High Court. Under these circumstances, Hon'ble the Supreme court opined that the question as to whether grant of relief of specific performance will cause hardship to the defendant is a question of fact, the same was required to be pleaded and evidence led in support of the pleadings. Relevant parts thereof are extracted below:- "The question as to whether the grant of relief for specific performance will cause hardship to the defendant within the meaning of clause (b) of subsection (2) of Section 20 of the Specific Relief Act, 1963, being a question of fact, the first appellate court without framing such an issue ought not to have reversed the finding of the trial court while concurring with it on all other issues with regard to the appellant's entitlement to relief for specific performance of contract. The High Court in the second appeal failed to notice that the respondent had not taken any defence of hardship and no such issue was framed and in the absence of any such evidence on record, the first appellate court held that he would be landless should the decree for specific performance be granted." 16. As the appellants in the present case had admittedly not raised the issue of undue hardship before the Courts below, the same cannot be permitted to be raised before this Court as nothing has come on record in the pleadings. Accordingly, even the aforesaid question is also answered against the appellants. 17. For the reasons mentioned above, I do not find any merit in the present appeal. The same is accordingly dismissed.