JUDGMENT : Pramod Kumar Srivastava, J. This second appeal has been preferred against the judgment of the Court of Civil Judge (S.D.), Azamgarh in original suit No. 105/2000 and judgment dated 04.02.2016 of the Additional District Judge, Court No.-8, Azamgarh in Civil Appeal No. 120/2013. 2. Original suit No. 105/2000 (Naseeran Bibi v. Gopal Ji) was filed for specific performance of contract. The plaint case in brief was that registered agreement to sell dated 25.04.1997 was executed between the parties, by which defendant Gopal Ji had agreed to sell his property in question to plaintiff Smt. Naseeran Bibi for a consideration of Rs. 3,00,000/- and had received advance consideration of Rs. 2,00,000/-. It was agreed that defendant will execute the sale-deed of this property to plaintiff within one year. But later on, defendant had not executed the sale-deed in spite of reminder, then plaintiff had sent her legal notice dated 16.03.2000 and also orally requested. The plaintiff has been ready and willing to perform his part of contract by paying remaining consideration for getting the sale-deed executed but defendant was not willing to perform her part of contract, therefore, plaintiff had filed suit on 22.04.2000 for specific performance of aforesaid registered agreement for sale. 3. Defendant Gopal Ji had filed written-statement in original suit, by which this plaint case was admitted that registered agreement to sell dated 25.04.1997 was executed between the parties, by which defendant had agreed to sell his property to plaintiff for a consideration of Rs. 3,00,000/- and had received advance consideration of Rs. 2,00,000/-, and that it was agreed that defendant will execute the sale-deed of this property to plaintiff within one year. It was further pleaded that it was mentioned in said agreement that if sale-deed will not be executed within one year then plaintiff will not be entitled to get it executed and his advance consideration amount would be confiscated. The plaintiff was not ready or willing to perform his part of contract, so he gave legal notice after two years. Suit is time barred and is liable to be dismissed. 4. The plaintiff was not ready or willing to perform his part of contract, so he gave legal notice after two years. 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 (Senior Division), Azamgarh had decreed the original suit by its judgment dated 07.05.2013 and directed the defendant to receive remaining consideration 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 the trial court had appreciated the evidences and contentions of the parties and 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, and also that in this transaction the time was not essence of the contract. On the basis of these findings, trial court had decreed the original suit. 5. Against the judgment of trial court, Civil Appeal No. 120/2013 (Gopal Ji v. Naseeran Bibi) was preferred by defendant of the original suit. This appeal was heard and dismissed by the judgment dated 04.02.2016 of the Additional District Judge, Court No.-8, Azamgarh. In this judgment the first appellate court had framed the point of determination on two point; firstly as to whether the time was essence of the contract, and secondly as to whether the plaintiff has been ready and willing to perform his part of contract. Lower appellate court had decided these points in favour of plaintiff-respondent and against defendant-appellant. 6, 7. Aggrieved by the judgments of the trial court as well as the first appellate court, present second appeal has been preferred by the defendant of the original suit. 8, 9. Learned counsel for the plaintiff-appellant contended that, in fact, the plaintiff was not ready or willing to perform his part of contract, so he gave legal notice after two years in this matter where the time of execution of sale-deed within one year was the essence of the contract, and it was already agreed between the parties that even the advance consideration would be forfeited after one year. Had plaintiff-respondent been ready and willing to execute sale-deed within time, then he would have given legal notice earlier. 10. Had plaintiff-respondent been ready and willing to execute sale-deed within time, then he would have given legal notice earlier. 10. These contentions were refuted by learned counsel for the respondent, who contended that in this particular matter, time was never the essence of the contract. Since parties have been living in same building and in good relationship, so there was no occasion to give written legal notice because they were in talking terms and such notice might have caused bitterness in their relationship. He submitted that plaintiff had admittedly paid earlier the most of the sale consideration to defendant appellant in advance, which is also proof of his readiness and willingness. He contended that in such matter cause of action arises from the time of refusal by defendant, therefore after serving the legal notice dated 22.04.2000. Suit is not time barred. Appeal is liable to be dismissed. 11. In Ahmmadsahab Abdul Mulla (D) by proposed L.Rs. v. Bibijan and others, 2009 (2) AWC 1863 (SC), the Apex Court had held as under:- "7. The inevitable conclusion is that the expression 'date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act......" 12. In R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy, 2006 (2) AWC 1336 (SC), the Apex Court had held as under:- "18. Thus, even though the time for performance was not fixed in the agreement for sale, on receipt of the notice, the respondent had notice that the performance was being refused, if he failed to fulfil his obligation under the contract within 15 days of receipt of the notice. 19. The suit was, therefore, in terms of the requirement of Article 54 of the Limitation Act, should have been filed within a period of three years from the date of expiry of fifteen days from the date of receipt of the said notice." 13. It is settled legal position that limitation for the suit for specific performance of contract is three years from the date of cause of action. It is settled legal position that limitation for the suit for specific performance of contract is three years from the date of cause of action. For the purpose of institution of a suit for specific performance, two dates are material, namely, the date fixed for specific performance of agreement and if such date is not fixed, in that event the date when the plaintiffs had notice that the performance was refused. Consequently, the date of the execution of the agreement is immaterial. What is material is, the date of the refusal of the performance of the agreement of the defendants. The time of three years, for filing a suit begins to run from the date fixed for the performance and if no such date is fixed, then from the date when the plaintiff had noticed that the performance was refused. In present matter the agreement to sell in question was entered between the parties on 25.04.1997 and the original suit was instituted on 22.04.2000 after giving legal notice. Therefore suit was not time barred even from the date of agreement in question. Cause of action in any case arose after one year of lapse of period agreed between the parties. Everything happened, including institution of suit within three years. Lower courts had rightly held that suit was not time barred. 14. Refusal to perform his part of contract by defendant-respondent can be properly inferred by circumstances as well as conduct of the parties. In present matter the facts and circumstances were properly scrutinized by the lower courts for determining readiness and willingness as well as whether time was or not essence of the contract for sale. These points do not relate to question of law, but are questions of fact that could be decided on basis of evidences, as had been done by the lower courts. This submission is not unacceptable that finding of facts on these points, especially the concurrent findings, cannot be interfered in second appeal unless there is gross infirmity or perversity in such findings. 15. Section-20 of Specific Relief Act reads as under: "20. This submission is not unacceptable that finding of facts on these points, especially the concurrent findings, cannot be interfered in second appeal unless there is gross infirmity or perversity in such findings. 15. Section-20 of Specific Relief Act reads as under: "20. Discretion as to decreeing specific performance.-(1) The jurisdiction to decree 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 but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree 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 nonperformance would involve no such hardship on the plaintiff; (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.-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.-The question whether the performance of a contract would involve 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 to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party." 16. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party." 16. The Apex Court in N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr), (1995) 5 SCC 115 held as under: "5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act"). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 17. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 17. In present case the readiness and willingness to perform his part of the contract, as required for the grant of relief of specific performance, is proved fact. Not only the lower courts had given such finding in favour of plaintiff-respondent, but also this fact is explicitly clear and evident from the fact that out of total agreed sale consideration of Rs. 3,00,000/- the plaintiff-respondent had already paid Rs. 2,00,000/- which is 2/3 of the total sale consideration. This amount of sale consideration was used and usurped by defendant-appellant who had also been enjoying the possession of disputed property. 18. So far point of time being the essence of contract is concerned, the trial court as well as the first appellate court had meticulously appreciated circumstances which led the parties to enter the agreement of sale, the alleged ground of need of money for marriage of daughter of defendant-appellant, the parties living under one roof in harmonious relationship, their talks on several points including the talks on sale etc. Trial court had specifically considered this point by noting that this is mentioned in agreement in question that when plaintiff will ask the defendant, then defendant would receive Rs. 1 lac and execute sale-deed. The trial court had held that these words indicate the intentions of the parties were not to limit the contract for sale within any particular period of limitation. Trial court had held the word one year was used in general terminology and for approximation of time and it was not essence of the contract. The first appellate court had also considered facts and circumstances of the matter including the circumstances of the agreement, nature of the property and the circumstances in which contract in question was executed and held that it is proved from the evidences that in spite of regular reminders of the plaintiff-respondent, the defendant-appellant had not been willing to execute sale-deed and had been deferring the matter and had not even showed his promptness after receiving of legal notice. First appellate court had also considered the circumstances stating that parties have been residing in one house and they when in possession to talk each other and for that there was no occasion to have any independent witness. First appellate court had independently appreciated the evidences and gave its own finding that it was defendant-appellant who was not inclined to get the sale-deed in question executed while plaintiff-respondent had been ready and willing to perform his part of contract and in this particular case in spite of the words of contract time was not the essence of contract. 19. Learned counsel for the appellant relied on Man Kaur v. Hartar Singh Sangha, 2010 AIR SCW 6198, in which Hon'ble Apex Court has held as under:- "11. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale-deed was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross-examination on that issue." 20. From the discussion made above, it is not denied that the agreement in question was not a valid agreement to sell. It is also proved that defendant-appellant was not willing to perform his part of contract, so it was he who had committed the breach of contract, and the plaintiff-respondent had been ready and willing to perform his part of contract which he had proved from the evidences, as affirmed by trial court as well as the first appellate court by concurrent finding of fact. 21. Most of the consideration was utilized and enjoyed by the defendant-appellant, who had not only been enjoying the property in question, but had already been acting in the manner which showed his conduct unworthy of credit as were found by the two lower courts. 22. 21. Most of the consideration was utilized and enjoyed by the defendant-appellant, who had not only been enjoying the property in question, but had already been acting in the manner which showed his conduct unworthy of credit as were found by the two lower courts. 22. Section 20(2) of the Specific Relief Act had provided certain conditions, as quoted above, in which court may properly exercise discretion not to decree specific performance. Considering those conditions in light of present case it is found that (a) the terms of the contract or the conduct of the parties at the time of entering into the contract was not such could give the plaintiff an unfair advantage over the defendant, because the plaintiff had already received more than 66.66% of sale consideration, and it would be the defendant who would get unfair advantage over plaintiff-appellant if no relief of specific performance is granted; (b) in present matter there appeared nothing which the defendant-respondent could not foresee, and instead of defendant it would be the plaintiff-appellant who would suffer hardship by non-performance who had paid most of the price of property; and (c) the defendant-respondent, after receiving of almost two-third portion of sale consideration, had not entered into the contract under any circumstances which makes it inequitable to enforce specific performance. 23. In Satya Jain (D) through LR and others v. Anis Ahmed Rushdie (D) through Lrs and others, 2013 (31) LCD 558 Apex Court had held as under: "The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of prince of property by itself cannot be a valid ground to deny the relief of specific performance." 24. It must however be emphasized that efflux of time and escalation of prince of property by itself cannot be a valid ground to deny the relief of specific performance." 24. In the case of Rathnavathi and another v. Kavita Ganashamdas, 2015 (1) Civil Court Cases 164 (SC), the Apex Court had held as under: "In our considered opinion, the High Court being the last Court of appeal on facts/law while hearing first appeal under section 96 of CPC as well within its powers to appreciate the evidence and came to its own conclusion independent to that of the trial court's decision. One cannot dispute the legal proposition that the grant/refusal of specific performance is a discretionary relief, and, therefore, once it is granted by the appellate court on appreciation of evidence, keeping in view the legal principle applicable for the grant then further appellate court should be slow to interfere in such finding, unless the finding is found to be either against the settled principle of law, or is arbitrary or perverse." 25. On the basis of above discussion, I am of the considered opinion that during trial or during first appeal court, no evidence was led by defendant-appellant to prove that his livelihood is dependent on disputed property or that prejudice, if any, would caused to him if contract for sale in question is specifically performed. The burden of proving such facts are on defendant-appellant who wants the court to believe it, but he had failed to discharge this burden. It is also proved that defendant-appellant had no intention to execute agreement for sale in question. In these circumstances, this contention of learned counsel for the respondent is not unacceptable that plaintiff-appellant had totally proved its plaint case and would suffer prejudice if contract for sale in question is not specifically performed, but no prejudice would be caused to defendant-appellant in case of specific performance of contract. This contention is also found acceptable that for giving false defences before the Court, the defendant-appellant should not be awarded and given benefit of misuse of process of court. 26. This contention is also found acceptable that for giving false defences before the Court, the defendant-appellant should not be awarded and given benefit of misuse of process of court. 26. For the reasons discussed above, it is found that plaintiff-respondent had totally proved his case and readiness and willingness to perform his part of contract and also that if said contract is not specifically performed, then she would be subjected to serious prejudices, because she had been waiting for long time after paying more than 66% sale consideration, and had been subjected to long litigation without any sufficient reason. It is also proved that both the lower courts had properly appreciated the point as to how discretion under Section 20 of Specific Relief Act should be exercised. It has also been proved that in this matter in spite of words written in registered agreement to sell dated 25.4.1997, the time was not the essence of contract and in this regard the concurrent finding of fact given by the two lower courts are apparently correct, which is without any infirmity or perversity. Therefore they had passed orders without any factual or legal error. 27. As discussed above, the dispute between the parties relate to facts that could be decided on the basis of evidences, as has been done by the two lower courts. The question to be determined for decision of dispute related not to question of law, but a question of fact. No substantial question of law arises in this matter. 28. In view of the above, it is hereby held that first appellate court had properly and correctly appreciated the available facts, circumstances and adduced evidences, and thereafter gave its correct finding by reversing the judgment of trial court and allowing the appeal and dismissing the original suit. There appears no factual or legal error in the impugned judgment of first appellate court. 29. On examination of the reasoning recorded by the trial court, which are affirmed by the first appellate court in first appeal, I am of the view that the judgments of the lower courts are well reasoned, and are based upon proper appreciation of the entire evidences on record. No question of law, much less a substantial question of law was involved in the case before the High Court. 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 appellant-plaintiffs can be sustained. Therefore, said judgments are hereby confirmed. 30. In view of the above, this appeal is dismissed.