JUDGMENT : Rajesh H. Shukla, J. 1. The present First Appeal is filed by the Appellants/Original Defendants being aggrieved with the impugned judgment and order in Special Civil Suit No. 461 of 2013 by the learned Additional Senior Civil Judge, Vadodara dated 30.4.2016, by which the Suit filed by the Respondent/Original Plaintiff has been decreed directing the Appellants/Original Defendants to execute the sale deed pursuant to the agreement to sell, and if they fail, the document is ordered to be executed to the officer of the court. 2. The background of the facts briefly stated are as follows; 3. The Appellants/Original Defendants had mortgaged the suit premises for getting advances from the Punjab National Bank Raopura Branch, and the Bank, in exercise of power under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 had proceeded for the recovery proceedings. Therefore, the Appellants/Original Defendants, in order to avoid that situation, requested the Respondent/Original Plaintiff to purchase the property for Rs. 20 lacs for which the agreement to sell dated 14.3.2013 was made. It is not in dispute that the substantial part of the sale consideration was paid by RTGS as stated in the plaint as well as in the impugned judgment. Therefore, as the Respondent/Original Plaintiff was ready and willing to perform his part of obligation for making the payment of remaining consideration, the sale deed ought to have been executed. However, in spite of the efforts the Appellants/Original Defendants failed and neglected to execute the sale deed as the prices are said to have increased, and therefore, the suit came to be filed by the Respondent/Original Plaintiff, which has been decreed by the court below as stated herein above. Therefore the present Appeal has been preferred by the Appellants/Original Defendants being aggrieved with the impugned judgment and order on various grounds including that the agreement of sell is not admissible in evidence for want of registration under the provisions of the Indian Registration Act. It is also contended that Section 17 of the Indian Registration Act would come into play and therefore the court below could not have decreed the suit. It is also contended that the amount which was taken was Rs. 13 lacs, out of which Rs. 7 lacs has been returned, and therefore, an issue is sought to be joined with regard to the outstanding amount. 4. It is also contended that the amount which was taken was Rs. 13 lacs, out of which Rs. 7 lacs has been returned, and therefore, an issue is sought to be joined with regard to the outstanding amount. 4. Learned Advocate Shri Kaushal D. Pandya for the Appellants/Original Defendants referred to the papers and the grounds mentioned and submitted that the court below has committed an error in decreeing the suit. He also tried to submit that the total amount was not Rs. 20 lacs, and as stated in detail in the plaint as well as referred in the judgment, some writing was executed with the Notary, but the fact remains that the part payment of the amount was made which is disputed. Learned Advocate Shri Pandya also referred to Section 17 of the Indian Registration Act to support his submission with regard to the admissibility of such document and submitted that the court below could not have decreed the suit for execution of the sale deed in favour of the Respondent/Original Plaintiff. 5. Learned Advocate Shri Vimal A. Purohit for the Respondent/Original Plaintiff referred to the background of the facts with details and submitted that at the instance of the Appellants, in order to avoid the proceedings and the attachment and sale pursuant to the Securitization Act, the agreement to sell was entered into between the Appellants and the Respondent/Original Plaintiff. Learned Advocate Shri Vimal Purohit submitted that the payments have been admittedly made substantially through Bank (RTGS). He therefore submitted that in part performance of the agreement to sell, substantial consideration has been made and for the remaining consideration, the Respondent/Original Plaintiff was always ready and willing. However, as observed in the judgment of the court below, the Appellants/Original Defendants neglected, and therefore, on appreciation of material and evidence, the court below has decreed the suit, and therefore the present Appeal may not be entertained. 6. Learned Advocate Shri Vimal Purohit referred to the earlier order passed by this Court dated 21.12.2016 with regard to the undertaking given by the Appellants herein to make the payment by installments, for which also the Respondent/Original Plaintiff had shown his willingness that if his amount is returned, he may not insist for transaction of sale. 6. Learned Advocate Shri Vimal Purohit referred to the earlier order passed by this Court dated 21.12.2016 with regard to the undertaking given by the Appellants herein to make the payment by installments, for which also the Respondent/Original Plaintiff had shown his willingness that if his amount is returned, he may not insist for transaction of sale. Learned Advocate Shri Vimal Purohit submitted that however neither the sale deed is executed nor the amount is returned in spite of the decree passed by the court below. Learned Advocate Shri Vimal Purohit submitted that even thereafter before this court also the Respondent/Original Plaintiff herein had shown his willingness to accept the money back if it is returned and would not insist for the execution of the sale deed. He therefore submitted that if the price or the value of the property in question is increased, it was for the benefit of the Appellants/Original Defendants to make the payment as per the undertaking and they could have saved the property. He therefore submitted that they could not have both ways duped the Respondent herein after having taken the money and would avoid the execution of the sale deed. 7. In view of the aforesaid rival submission, it is required to be considered whether the present Appeal deserve consideration. 8. Normally, being the First Appeal, the R&P has been called for and it has been considered with all details. However the facts are so undisputed and clear that it leaves no doubt about either the transaction or the amount taken by the Appellants/Original Defendants from the Respondent/Original Plaintiff. Therefore, as the agreement to sell has been executed, and in part performance, substantial amount has been paid through Bank (RTGS), the Appellants now cannot be permitted to turn around raising all contentions that they may not execute the sale deed nor they may return the amount taken from the Respondent/Original Plaintiff. It must be stated that the court also gave sufficient opportunity to the Appellants/Original Defendants to sort out the matter if they were really willing to save their house by returning the amount which they had taken from the Respondent/Original Plaintiff. Therefore, even at the appellate stage before this court in appeal, an opportunity was given to the Appellants/Original Defendants to repay the amount as per the order dated 21.12.2016 and the Appellants/Original Defendants had also filed an undertaking before this Court. Therefore, even at the appellate stage before this court in appeal, an opportunity was given to the Appellants/Original Defendants to repay the amount as per the order dated 21.12.2016 and the Appellants/Original Defendants had also filed an undertaking before this Court. However, they backed out from the undertaking and have not made any payment. It is required to be stated that when the amount has been taken in part performance of agreement to sell as sale consideration for the property in question, either the amount could have been returned or the sale consideration could have been executed. This opportunity has been made available before this court in the Appeal also that the Appellants could return the part of the consideration which has been paid through Bank (RTGS) and they cannot be compelled to execute the sale deed. However, the Appellants have failed in spite of the undertaking given before this court, meaning thereby, they are not ready and willing to even refund the substantial payment of the consideration which they have received, and on the other hand are pursuing this First Appeal challenging the impugned judgment and order by which the suit of the Respondent/Original Plaintiff has been decreed to execute the sale deed pursuant to the same agreement to sell. Therefore, the Appellants/Original Defendants cannot blow hot and cold. At the same time it appears that their intention is not clear or rather they do not want to refund the amount which has been received by them admittedly towards the consideration of the property in question under the agreement to sell and thereafter does not want to execute the sale deed also, which cannot be permitted. 9. Therefore, having regard to the aforesaid background and the discussions made herein above, the Appellants cannot be heard to say in the matter that they will keep the money paid towards the part consideration under the agreement to sell and would not refund the same amount and would also not execute the sale deed, which is not permissible under the law or under the law of equity. 10. 10. Therefore, assuming that by force or circumstances, the Appellants were compelled to enter into a transaction of agreement to sell accepting the part of the consideration, they had been given ample opportunity to refund the said amount which they had received towards the part payment of the consideration and then avoid execution of the sale deed in respect of the same property, particularly when the value or the price of the property has increased. Therefore that option is also given, but they have not availed the same. Therefore, the present First Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. 11. However, since it is a residential premises, as requested by learned Advocate Shri Kaushal D. Pandya for the Appellants/Original Defendants, one more opportunity is given that if the Appellants/Original Defendants deposit the entire amount as per the undertaking before this Court within a week from today, the execution pursuant to the impugned judgment may not take place for a week from today i.e. up to 25.4.2017.