JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the parties on the point of admission of second appeal and perused the records. 2. Original suit No. 88 of 2001 (Ram Charan Sharma v. Smt. Rajwati Devi) was filed for specific performance of contract. The plaint case in brief was that registered agreement to sell dated 31.3.1999 was executed between the parties, by which defendant Smt. Rajwati Devi had agreed to sell her bhumidhari plot No. 316 to plaintiff Ram Charan Sharma for a consideration of Rs. 72,000/- and had received advance consideration of Rs. 64,000/-. It was agreed that defendant will execute the sale-deed of this property to plaintiff after receiving remaining consideration within one year and hand over its possession. But defendant had not taken interest in executing the sale-deed, then plaintiff had sent her legal notice and also orally requested. On the basis of assurance given on behalf of defendant, the plaintiff has been waiting in Sub-Registrar Office at stipulated time for sale-deed, but the defendant had not turned up. The plaintiff has been ready ad willing to perform his part of contract by paying remaining consideration for getting the sale-deed executed but defendant is not willing to perform her part of contract, therefore, plaintiff had filed suit for specific performance of aforesaid registered agreement for sale. 3. Defendant Smt. Rajwati Devi had filed written statement in original suit, by which plaint case was not admitted. It was further pleaded that defendant had no intention to sell her property of plot Khasra No. 316. In fact plaintiff is money-lender and defendant had asked him for loan of Rs. 64,000/-, then plaintiff had agreed to give loan of Rs. 64,000/- on interest, but asked her to execute surety bond for loan. The plaintiff is a clever litigant person who had ulterior motive, so he colluded with scribe and witnesses who prepared the document, and in place of document of loan, they prepared the document of agreement for sale by playing fraud on defendant. The document of said agreement dated 31.3.1999 was never read over or explained to defendant and her thumb impression was taken on it in garb of document of surety bond. This fraud was committed by plaintiff by taking advantage of illiteracy and simplicity of defendant. Defendant had returned the amount of Rs. The document of said agreement dated 31.3.1999 was never read over or explained to defendant and her thumb impression was taken on it in garb of document of surety bond. This fraud was committed by plaintiff by taking advantage of illiteracy and simplicity of defendant. Defendant had returned the amount of Rs. 18000/- of loan to plaintiff, but in spite of it plaintiff had filed this suit for specific performance of contract on basis of incorrect facts. The plaintiff’s suit is time barred and is liable to be dismissed. 4. After framing issues, accepting evidences and affording opportunity of hearing to parties, the Court of Civil Judge (S.D.), Aligarh had decreed the original suit by its judgment dated 29.7.2003 and directed the defendant to receive remaining consideration of Rs. 8,000/- from plaintiff and execute the sale-deed of disputed property, failing which plaintiff would be entitled to get the sale-deed executed through Court. In this judgment, trial Court had appreciated the evidences and contentions of the parties and gave specific finding that in this matter although defendant is illiterate but she is not entitled to the benefits available to pardanashin ladies. The trial Court had held that in this matter registered agreement to sell was executed in presence of husband of defendant who is literate person and who had verified the signature of defendant and no fraud was committed; and also that there is no evidence that transaction in question was for loan, or that any loan amount of Rs. 18,000/- was refunded by defendant. On the basis of evidences the trial Court had also given finding that the plaintiff has been ready and willing to perform is part of contract regarding execution of sale-deed, which is proved from evidences. The trial Court had also appreciated this argument of defendant (present appellant) side that whether the alternative relief of refund of money should be granted. It held that such relief should be granted only when either specific relief is not possible or parties are in a position to suffer loss or prejudice by specific performance. Trial Court had also held that in present matter, it is not just or proper to refund of advance consideration. It held that such relief should be granted only when either specific relief is not possible or parties are in a position to suffer loss or prejudice by specific performance. Trial Court had also held that in present matter, it is not just or proper to refund of advance consideration. Learned Civil Judge had also held that if such order is passed then people would be encouraged for dis-honesty and after execution of sale-deed of property they would press for refund of money in cases when value of property is increased. On the basis of these findings, trial Court had decreed the original suit. 5. Against the judgment of trial Court, Civil Appeal No. 99 of 2003 (Smt. Rajwati Devi v. Ram Charan Sharma) was preferred by defendant of the original suit. This appeal was heard and dismissed by the judgment dated 27.4.2004 of Additional District Judge, Court No.11, Aligarh. In this judgment the first appellate Court had independently appreciated the available evidences in the light of arguments adduced and gave specific finding that from available evidences, there is no proof to prove that registered agreement for sale in question was executed by any fraud committed by plaintiff. Lower appellate Court had also held that from the available evidences, it is proved that defendant/appellant had willingly executed the registered agreement to sell in question, and that plaintiff/respondent has been ready and willing to perform his part of contract for which he had given notice to defendant/appellant. Lower appellate Court has also held that there is no evidence to prove that intention of parties was to secure any alleged loan. On the basis of these evidences, first appellate Court had dismissed the first appeal. 6. Aggrieved by the judgments of trial Court as well as the first appellate Court, present second appeal has been preferred by the defendant of the original suit. 7. Learned counsel for the appellant contended that plaintiff had not proved first legal notice allegedly sent by him to defendant because such notice is not on record. He contended that original suit was beyond time because according to contents of said registered deed of contract for sale the sale-deed had to be executed within one year from time of execution, that is from 31.3.1999, but suit instituted on 24.1.2001. He contended that original suit was beyond time because according to contents of said registered deed of contract for sale the sale-deed had to be executed within one year from time of execution, that is from 31.3.1999, but suit instituted on 24.1.2001. Learned counsel for the appellant has also submitted that lower Court had wrongly disbelieved the evidences regarding refund of loan of Rs. 18,000/-. He further submitted that the defendant/appellant is still ready and willing to refund of amount of loan, therefore, at the most the plaintiff/respondent should be granted relief of refund of advance consideration after deducting the refund of amount of loan. 8. Arguments of appellant side were refuted by learned counsel for the respondent who had contended that plaintiff has been ready and willing to perform his part of contract regarding purchase of disputed property. In this matter the most of the consideration of disputed property was accepted and utilized by defendant/appellant but when valuation of the property in question has enhanced, then appellant is started dishonesty by pleading the false case of loan which was not proved. He further submitted that plaintiff’s case has been proved in toto by evidences, whereas the defendant’s case has been proved wrong and it is established that after accepting most of the amount of consideration of disputed property the defendant has attempted to defraud the plaintiff and also the Court. He further submitted that such overt act of appellant should not be encouraged and this appeal should be dismissed in limne without being admitted. 9. The execution of registered deed of agreement to sell dated 31.3.1999 is an admitted fact between the parties. Its execution was challenged by defendant-appellant for many reasons, the first of which is that suit is time barred. The contention of appellant side was that according to terms of said document, the sale-deed had to be executed within one year from the date of execution, that is by 31.3.2000, but suit was instituted on 24.1.2001. Learned counsel for the appellant contended that plaintiff-respondent had not taken step to get the sale-deed executed within time, therefore it is time barred. In present matter when sale-deed was not executed within stipulated period by 31.3.200 then cause of action for the original suit arose. Learned counsel for the appellant contended that plaintiff-respondent had not taken step to get the sale-deed executed within time, therefore it is time barred. In present matter when sale-deed was not executed within stipulated period by 31.3.200 then cause of action for the original suit arose. According to Article 54 of Limitation Act, the period of limitation for the suit of specific performance of contract is three years, therefore after initiation of cause of action on 31.3.2000 the limitation for the suit started running, but the suit was instituted on 24.3.2001 which is well within period of limitation. Therefore suit was not time barred. 10. Another argument of learned counsel for the appellant was about readiness and willingness on part of plaintiff/respondent to perform his part of contract in this regard. There has been specific pleading in the plaint which was proved from the evidences, and the findings of the two lower Courts was that before institution of original suit, the plaintiff had already paid most of the amount of total sale consideration to defendant-appellant. There is specific finding that out of total consideration of Rs. 72,000/- is agreed between the parties, advance consideration of Rs. 64,000/- has been received by defendant-appellant which in itself is proof of the fact that by paying major amount of sale consideration, the plaintiff-respondent had showed his readiness and willingness. It is also proved and admitted that before institution of suit, the plaintiff had given notice to defendant-appellant for execution of sale-deed. There is evidence that on information received on behalf of defendant, the plaintiff remained present in Sub-Registrar office for execution of sale-deed. The plaintiff had pleaded that issuing of two notices before institution of suit but defendant-appellant had admitted receipt of only one such notice. Even receiving of only one notice before institution of suit is proof of fact that plaintiff had been ready and willing to perform his part of contract for which he had given legal notice to defendant. There has been concurrent finding of two lower Courts to the effect that plaintiff-respondent has been ready and willing to perform his part of contract by paying remaining consideration, and had served notices on defendant-appellant for execution of sale-deed. Such concurrent finding is based on appreciation of evidences and conclusion in this regard reached by the lower Courts are apparently correct and acceptable. 11. Such concurrent finding is based on appreciation of evidences and conclusion in this regard reached by the lower Courts are apparently correct and acceptable. 11. There had been contention of appellant side is that lower Court had wrongly disbelieved evidences regarding refund of alleged loan of Rs. 18,000/- This argument has also been found incorrect and unacceptable. On the basis of evidences adduced, there has been concurrent finding of fact that two lower Courts that defendant-appellant had failed to prove his case of alleged loan transaction as pleaded in his written-statement. On the contrary, trial Court as well first appellate Court had given finding on the basis of available evidences that appellant had willingly executed the registered agreement to sell in question for sale of his property to plaintiff-respondent as pleaded in the plaint. Such findings, as held earlier, are based on proper scrutiny of evidences and are apparently not infirm or erroneous. 12. The main argument of learned counsel for the appellant is based on citation of the Apex Court in Hemanta Mondal and others v. Ganesh Chandra Naskar, 2016 (13) RD 443, in which trial Court has held as under: “15. Section 20 of Specific Relief Act, 1963 gives discretion to the Court, and provides that the Court is not bound to grant relief of specific performance merely because it is lawful to do so. It further provides that the discretion is not to be exercised arbitrarily but guided by judicial principles. Section 20 of Specific Relief Act, 1963 gives discretion to the Court, and provides that the Court is not bound to grant relief of specific performance merely because it is lawful to do so. It further provides that the discretion is not to be exercised arbitrarily but guided by judicial principles. Sub-section (2) of Section 20 enumerates three conditions when discretion is not to be exercised to grant decree of specific performance : “(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.” Explanation (1) to sub-section (2) provides that mere inadequacy of consideration shall not be deemed to be an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation (2) provides that the question whether the performance of a contract when involved hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent in the contract, be determined with reference to the circumstances accepting at the time of contract. Sub-section (3) provides that Court may properly exercise discretion to decree specific performance in any case where plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.” 13. Apart from it, appellant side has cited K. Nanjappa v. R.A. Hameed @ Ameersab and another, 2015 (113) ALR 307, in which Apex Court has held as under: “In a suit for specific performance of a contract, the Court has to keep in mind Section 20 of the Specific Reliefs Act. This Section preserves judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. This Section preserves judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant.” 14. I am in agreement with the rulings mentioned above and the law laid down by Hon’ble Supreme Court in it. But in special circumstances of the present case, these citations are not going to held defendant-appellant. It is a fact that Court is not bound to grant relief of specific performance merely because it is lawful to do so, but in present matter non-performance of contract will give the defendant-appellant an unfair advantage over plaintiff who had received most of the sale consideration and enjoyed its fruits, and therefore the performance of contract would not involve any hardship to the defendant which he did not foresee; whereas its non-performance would involve hardship to plaintiff who had paid most of the consideration and had been regularly taking steps for the performance of contract; and in the special circumstances of this case the specific performance of contract in question will not make it inequitable for the appellant because he had already received most of the sale consideration and enjoyed the its benifits. In this case the Court should properly exercise discretion to decree specific performance because the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. 15. The trial Court as well as the first appellate Court had meticulously considered to the facts and circumstances of the case before reaching to the conclusion that by specific performance of contract in question, the plaintiff would not get unfair advantage over defendant. Apart from it, lower Court had specifically given finding that defendant’s case has been proved wrong and he had not come before the Court with clean hands and that the non-performance of said contract would instigate other persons to enter into contract and decline the specific performance when value of property increases. Therefore, this is a case in which both the lower Courts had given correct concurrent findings that contract in question must be specifically performed. 16. Therefore, this is a case in which both the lower Courts had given correct concurrent findings that contract in question must be specifically performed. 16. The dispute to be determined in present matter between the parties was as to whether the defendant-appellant had willingly executed the agreement to sell dated 31.3.1999 or whether the defendant had executed the registered deed in question as document for securing of the loan. These are not questions of law but questions of fact that could be decided on the basis of evidences, as has bee done by the lower Courts in present matter. The findings given by lower Courts are correct and acceptable and there appears no infirmity or perversity in it. 17. On examination of the reasoning recorded by the trial Court, which are affirmed by the learned first appellate Court in first appeal, I am of the view that the judgments of the trial Court as well as the first appellate Court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law was involved in the case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial Court that has been affirmed by the first appellate Court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellants can be sustained. 18. In view of the above, this second appeal is dismissed. ——————