JUDGMENT : Tarlok Singh Chauhan, J. This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the defendant/appellant against the judgments and decrees concurrently passed by the learned Courts below, whereby the suit of the plaintiff/respondent No.1 has been partly decreed to the extent to refund a sum of Rs. 3,50,000/- received by her as earnest money. The parties shall be referred to as the plaintiff and defendants. 2. Brief facts of the case are that Shri Swaran Pal Singh, the predecessor-in-interest, of defendants No.1 and 2 had agreed to sell complete first floor of the double storied building comprised in Khata/Khatauni No.91/212 min, Khasra No.2993/652, measuring 402 square metres, situated in Mauja Thodo, Solan, Tehsil and District Solan, (H.P.) (hereinafter shall be referred to as the suit property). It was averred by the plaintiff that the price of the property was settled to be Rs. 9,50,000/- and Rs. 3,50,000/- were paid towards earnest money at the time of the agreement dated 04.11.2004. It was further averred that later on, the defendants No.1 and 2 on succeeding their father executed a sale deed of the property on 08.06.2007 in favour of defendant No.3 after hatching a conspiracy with him in order to deprive the plaintiff of the property. The plaintiff averred that he was ready and willing to perform his part of agreement, but the defendants lingered on the matter on one pretext or the other and lastly refused to execute the sale deed. It was also averred that legal notice was served upon the defendants on 09.11.2012, but to no avail. As per the plaintiff, the cause of action accrued in his favour when agreement to sell was executed and lateron when the sale deed was not registered after demarcation and when defendants No.1 and 2 sold the property to defendant No.3. On these averments, the plaintiff prayed for specific performance of the agreement to sell dated 04.11.2004 and at the same time sought declaration to the effect that sale deed executed in favour of defendant No.3 be declared null and void. In the alternative, he prayed for recovery of Rs. 5,33,750/- alongwith interest against the defendants. 3. The suit was contested by defendants No.1 and 2 on the plea that earnest money stood forfeited on the failure of the plaintiff to perform his part of agreement. In the alternative, he prayed for recovery of Rs. 5,33,750/- alongwith interest against the defendants. 3. The suit was contested by defendants No.1 and 2 on the plea that earnest money stood forfeited on the failure of the plaintiff to perform his part of agreement. On merits, the agreement to sell was admitted with the clarification that time was the essence of contract and sale deed was to be executed within six months on the payment of remaining sale consideration by the plaintiff. It was averred that further stipulation was to the effect that in case sale deed was not executed within six months, then the earnest money was to be forfeited in case the plaintiff was at fault. It was also averred that the plaintiff did not come forward as per agreement and thus the agreement came to an end and, therefore, defendants No.1 and 2 in the year 2007 executed a sale deed in favour of defendant No.3 for consideration. It was lastly averred that plaintiff was never ready and willing to perform his part of agreement and, therefore, the earnest money stood forfeited. Hence, the plaintiff is neither entitled to decree for specific performance of contract nor for recovery of earnest money. 4. Defendant No.3 did not appear to contest the suit before the learned trial Court, therefore, was proceeded against ex part. 5. The learned trial Court on 04.08.2009 framed the following issues:- “1. Whether the defendants No.1 and 2 entered into an agreement with the plaintiff on 4.11.2004 agreed to sell the suit property to the plaintiff for the sale consideration of Rs. 9,50,000/-? OPP. 2. Whether the plaintiff in accordance with agreement dated 4.11.2004 paid a sum of Rs. 3,50,000/- being earnest money to the defendants No.1 and 2 as alleged? OPP. 3. Whether the plaintiff is entitled for specific performance of agreement dated 4.11.2004, as alleged? OPP. 4. Whether registered sale deed dated 8.6.2007 executed by defendants No.1&2 in favour of defendant No.3 qua suit property is illegal, null and void, as alleged? OPP. 5. Whether the plaintiff in the alternative is entitled to recover a sum of Rs. 5,50,000/- alongwith interest at the rate of 18% per annum as prayed for? OPP. 6. Whether plaintiff has not come to the Court with clean hands and suppressed material facts with malafide intention? OPD 1&2. 7. OPP. 5. Whether the plaintiff in the alternative is entitled to recover a sum of Rs. 5,50,000/- alongwith interest at the rate of 18% per annum as prayed for? OPP. 6. Whether plaintiff has not come to the Court with clean hands and suppressed material facts with malafide intention? OPD 1&2. 7. Whether the plaintiff is estopped by his acts, conduct, deed and acquiescence? OPD 1&2. 8. Whether the plaintiff has no locus standi to file the present suit? OPD 1&2. 9. Relief.” 6. The learned trial Court on the basis of equity held the plaintiff to be disentitled to a decree for specific performance of agreement, however, it ordered the defendants No.1 and 2 to refund the amount of Rs. 3,50,000/- received by them as earnest money alongwith interest @ 6% per annum. 7. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant/appellant has filed the present appeal on the ground that the learned Courts below have erred in concluding that time was not the essence of the contract and further erred in decreeing the suit for Rs. 3,50,000/- as refund of earnest money alongwith interest. I have heard the learned counsel for the parties and gone through the material placed on record. 8. It is vehemently argued by the learned counsel for the appellant/defendant that the learned Courts below have erred in concluding that time was not the essence of the contract and, therefore, on this sole ground, the suit of the plaintiff/respondent deserved to be dismissed. 9. I have considered the said submission and find no force in the same. Admittedly, no specific date for execution of the sale deed or for payment of balance sale consideration was mentioned in the agreement Ex.PW1/B. Therefore, once this be the admitted position, obviously then the time cannot be said to be the essence of the contract. 10. Article 54 of the Limitation Act prescribes as under: Description of suit Period of limitation Time from which period begins to run 54. For Specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. 10. Article 54 of the Limitation Act prescribes as under: Description of suit Period of limitation Time from which period begins to run 54. For Specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Whether in a contract the time is the essence of the contract has been the subject matter of interpretation in number of cases, but the proposition can be said to have been settled by the decision of the Constitution Bench of the Hon’ble Supreme Court in case titled Chand Rani (Smt.) (dead) by LRs vs. Kamal Rani (Smt.) (dead) by LRs (1993) 1 SCC 519 wherein the Hon’ble Supreme Court outlined the principle thus: “19. It is a well-accepted principle that in case of sale of immoveable property, time is never regarded as the essence of the contract. As, in fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.” 11. It is well settled that in a contract of immovable property time is not essence of contract, subject to certain exceptions. The first is that it should be stipulated in the contract itself that time is the essence of the contract by mentioning a specific date on which the sale deed is to be executed. 12. In Gomathinayagam Pillai and others vs. Palaniswami Nadar AIR 1967 (SC) 868 , the Hon’ble Supreme Court has categorically held that “in a contract relating to sale of immovable property, it will normally be presumed that time is not the essence of the contract”. 13. 12. In Gomathinayagam Pillai and others vs. Palaniswami Nadar AIR 1967 (SC) 868 , the Hon’ble Supreme Court has categorically held that “in a contract relating to sale of immovable property, it will normally be presumed that time is not the essence of the contract”. 13. In Govind Prasad Chaturvedi vs. Hari Dutt Shastri and another (1977) 2 SCC 539 , the Hon’ble Supreme Court has said that “the law is settled that fixation of period within which contract has to be performed does not make the stipulation as to time the essence of the contract. The language used in the agreement is not such as to indicate unmistakable terms that the time is of the essence of the contract. The intention to treat time as of the essence of contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of contract”. 14. In M/s Hind Construction Contractors vs. State of Maharashtra (1979) 2 SCC 70 , the Hon’ble Supreme Court while discussing the question as to whether the time would be the essence of the contract, held as follows: “7….that question whether or not time was of the essence of the contract would essentially be a question of the intention of the parties to be gathered from the terms of the contract….(See Halsbury’s Laws of England, 4th Edn., Vol.4, para 1179.)” 8…. even where the parties have expressly provided that time is of the essence of the contract such a stipulation will have to be read alongwith other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental;…(See Lamprell v. Billericay Union (1849) 3 Exch 283, Exch at p. 308; Webb v. Hughes (1870) LR 10 Eq 281 ; Charles Rickards Ltd. v. Oppenheim (1950) 1 KB 616.)” 15. In Smt. Indira Kaur and others versus Sheo Lal Kapoor (1988) 2 SCC 488 , the Hon’ble Supreme Court in para-6 held as under:- “6……The law is well settled that in transactions of sale of immovable properties, time is not the essence of the contract….” 16. In D.S. Thimmappa vs. Siddaramakka (1996) 8 SCC 365 , the Hon’ble Supreme Court held as under:- “6. In D.S. Thimmappa vs. Siddaramakka (1996) 8 SCC 365 , the Hon’ble Supreme Court held as under:- “6. It is settled law that unless the deed of agreement of sale stipulated a date for performance, time is not always of the essence of the contract….” 17. The Hon’ble Supreme Court in Swarnam Ramachandran vs. Aravacode Chakungal Jayapalan (2004) 8 SCC 689 held as under:- “12. That time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of re-conveyance or renewal of lease. The onus to plead and prove that time was the essence of the contract is on the person alleging it…..; When the plaintiff pleads that time was not of essence and the defendant does not deny it by evidence, the Court is bound to accept the plea of the plaintiff. In cases where notice is given making time of the essence, it is duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. That a vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract.” 18. It is vehemently argued by learned counsel for the appellant/defendant that the agreement to sell clearly stipulates that the sale deed has to be executed within a period of six months and, therefore, it should be construed to mean that time was the essence of the contract. 19. I am afraid that even this submission of learned counsel for the appellant/defendant cannot be accepted in view of the authoritative pronouncements of the Hon’ble Supreme Court in Balasaheb Dayandeo Naik (Dead) through LRs and others vs. Appasaheb Dattatraya Pawar (2008) 4 SCC 464 wherein while dealing with a similar clause of six months, the Hon’ble Supreme Court observed as under:- “15……Even if we accept the recital in the agreement of sale (Ext.18) that the sale deed has to be executed within a period of six months, there is an express provision in the agreement itself that on failure to adhere to the time, the earnest money will be forfeited. In such circumstances and in view of recital pertaining to forfeiture of the earnest money makes it clear that time was never intended by the parties to be of essence…..” 20. Coming to the other contention raised by the learned counsel for the appellant/defendant that the learned Courts below could not have directed the refund of the earnest money alongwith interest, I really find this argument to be preposterous, particularly, when the defendant does not deny that the suit filed by the plaintiff is within limitation and the defendant has also not denied the receipt of consideration. What I find more intriguing is the next submission by the learned counsel for the appellant/defendant that ordering refund of earnest money has only resulted into undue enrichment of the plaintiff. In a suit filed for specific performance of contract that too filed within the prescribed period of limitation, the Court only has two options; firstly to decree the suit or in the alternative ordering the refund of earnest money depending upon the facts and circumstances and fulfillment of certain conditions. How the refund of earnest money to the plaintiff amounts to undue enrichment is beyond my comprehension? Rather, in case earnest money is not ordered to be refunded, it would be the defendant, who would be unduly enriched. 21. The principle of unjust enrichment proceeds on the basis that it would be unjust to allow one person to retain a benefit received at the expense of another person. This was so held by the Hon’ble Supreme Court in Renusagar Power Co. Ltd. Vs. General Electric Co. 1994 Supp (1) SCC 644:- “98. The principle of unjust enrichment proceeds on the basis that it would be unjust to allow one person to retain a benefit received at the expense of another person. It provides the theoretical foundation for the law governing restitution. The principle has, however, its critics as well as its supporters. In the words of Lord Diplok: “…there is no general doctrine of unjust enrichment in English law. What it does is to provide specific remedies in particular cases of what might be classed as unjust enrichment in a legal system that is based upon civil law.” (See: Orakpo V. Manson Investments Ltd. 1978 AC 104). In the words of Lord Diplok: “…there is no general doctrine of unjust enrichment in English law. What it does is to provide specific remedies in particular cases of what might be classed as unjust enrichment in a legal system that is based upon civil law.” (See: Orakpo V. Manson Investments Ltd. 1978 AC 104). In The Law of Restitution by Goff and Jones, it has, however, been stated “that the case-law is now sufficiently mature for the courts to recognize a generalized right of restitution” (3rd Edn., P. 15). In Chitty on Contracts, 26th Edn., Vol. I, p. 1313, para 2037, it has been stated that “the principle of unjust enrichment is not yet clearly established in English law”. The learned editors have, however, expressed the view: “Even if the law has not yet developed to that extent, it does not follow from the absence of a general doctrine of unjust enrichment that the specific remedies provided are not justifiable by reference to the principle of unjust enrichment even if they were originally found without primary reference to it.” (pp. 1313-1314, para 2037).” 22. The issue regarding undue enrichment thereafter came up before the Hon’ble Supreme Court in Indian Council for Enviro-Legal Action Vs. Union of India and others (2011) 8 SCC 161 and it was held as follows:- “UNJUST ENRICHMENT 151. Unjust enrichment has been defined as: "Unjust enrichment.---A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense." See Black's Law Dictionary, 8th Edition (Bryan A. Garner) at page 1573. A claim for unjust enrichment arises where there has been an "unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." 152. “Unjust enrichm ent” has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 153. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA) 154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus : "... .Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution." 155. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:- "….. It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires." 156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment. Restitution and compound interest 157. American Jurisprudence 2d. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment. Restitution and compound interest 157. American Jurisprudence 2d. Volume 66 Am Jur 2d defined Restitution as follows: "The word 'restitution' was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation." 158. While Section (') 3 (unjust enrichment) reads as under: "The phrase "unjust enrichment" is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly." 159. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 160. While the term 'restitution' was considered by the Supreme Court in South-Eastern Coalfields 2003 (8) SCC 648 and other cases excerpted later, the term 'unjust enrichment' came to be considered in Sahakari Khand Udyog Mandal Ltd vs Commissioner of Central Excise & Customs ( (2005) 3 SCC 738 ). This Court said: "31. …’unjust enrichment' means retention of a benefit by a person that is unjust or inequitable. 'Unjust enrichment' occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else." 161. The terms 'unjust enrichment' and 'restitution' are like the two shades of green - one leaning towards yellow and the other towards blue. With restitution, so long as the deprivation of the other has not been fully compensated for, injustice to that extent remains. Which label is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders. 162. We may add that restitution and unjust enrichment, along with an overlap, have to be viewed with reference to the two stages, i.e., pre-suit and post-suit. In the former case, it becomes a substantive law (or common law) right that the court will consider; but in the latter case, when the parties are before the court and any act/omission, or simply passage of time, results in deprivation of one, or unjust enrichment of the other, the jurisdiction of the court to levelise and do justice is independent and must be readily wielded, otherwise it will be allowing the Court's own process, along with time delay, to do injustice. 163. For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full jurisdiction to the court, to pass appropriate orders that levelise. 163. For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full jurisdiction to the court, to pass appropriate orders that levelise. Only the court has to levelise and not go further into the realm of penalty which will be a separate area for consideration altogether. 164. This view of law as propounded by the author Graham Virgo in his celebrated book on "The Principle of Law of Restitution" has been accepted by a later decision of the House of Lords (now the UK Supreme Court) reported as 136 Sempra Metals Ltd (formerly Metallgesellschaft Limited) v Her Majesty's Commissioners of Inland Revenue and Another [2007] UKHL 34 = [2007] 3 WLR 354 = [2008] 1 AC 561 = [2007] All ER (D) 294. 165. In similar strain, across the Altantic Ocean, a nine judge Bench of the Supreme Court of Canada in Bank of America Canada vs. Mutual Trust Co. [2002] 2 SCR 601 = 2002 SCC 43 (both Canadian Reports) took the view : "There seems in principle no reason why compound interest should not be awarded. Had prompt recompense been made at the date of the wrong the plaintiff should have had a capital sum to invest; the plaintiff would have received interest on it at regular intervals and would have invested those sums also. By the same token the defendant will have had the benefit of compound interest. Although not historically available, compound interest is well suited to compensate a plaintiff for the interval between when damages initially arise and when they are finally paid." This view seems to be correct and in consonance with the principles of equity and justice. 166. Another way of looking at it is suppose the judgment-debtor had borrowed the money from the nationalised bank as a clean loan and paid the money into this court. What would be the bank's demand. 167. In other words, if payment of an amount equivalent of what the ledger account in the nationalised bank on a clean load would have shown as a debit balance today is not paid and something less than that is paid, that differential or shortfall is what there has been : (1) failure to restitute; (2) unfair gain by the non-complier; and (3) provided the incentive to obstruct or delay payment. Unless this differential is paid, justice has not been done to the creditor. Unless this differential is paid, justice has not been done to the creditor. It only encourages non-compliance and litigation. Even if no benefit had been retained or availed even then, to do justice, the debtor must pay the money. In other words, it is this is not only disgorging all the benefits but making the creditor whole i.e. ordering restitution in full and not dependent on what he might have made or benefited is what justice requires.” 23. No other point was urged. 24. In view of the aforesaid discussion, no question of law much less substantial question of law arises for consideration. 25. Accordingly, the appeal is dismissed in limine, leaving the parties to bear their own costs. All pending applications also stand disposed of. CMP No.1347 of 2017. 26. Since the appellant is entitled to exemption from payment of court fee under Section 12 of the Legal Services Authorities Act, 1987, the application is allowed and the applicant is exempted from paying court fee of Rs.11,310/-. The application stands disposed of. CMP No.2653 of 2017. 27. By medium of this application, the applicant/appellant has sought permission to deposit 50% of the decretal amount i.e. Rs.2,06,500/-, however, as the appeal itself stands dismissed, in the aforesaid terms, this application has been rendered infructuous and dismissed as such. RSA No.53 of 2017. 26.05.2017. Present: Mr. Saurav Rattan, Advocate, for the appellant. The case was listed under the caption “Speaking to the Minutes” as there was an error in para-7 inasmuch as instead of making a reference to the judgment passed by the learned “first appellate Court”, it has been mentioned that the defendant/appellant had filed the present appeal against the judgment and decree passed by the learned “trial Court”, whereas, it was not so. Accordingly, para-7 of the judgment dated 23.05.2017 is ordered to be corrected and now be read as under:- “7. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant/appellant filed an appeal before the learned first appellate Court, however, the same was dismissed, constraining her to file the instant appeal before this Court on the ground that the learned Courts below have erred in concluding that time was not the essence of the contract and further erred in decreeing the suit for Rs.3,50,000/- as refund of earnest money alongwith interest”. Ordered accordingly. Ordered accordingly. This order be read as part and parcel of the judgment dated 23.05.2017.