JUDGMENT : Goutam Bhaduri, J. 1. Challenge in this appeal is to the judgment and decree dated 20-1-2017 passed by the Fifth Additional District Judge, Bilaspur, in civil suit No.354-A/2014 whereby the suit for specific performance was decreed in favour of the respondent/plaintiff. 2. The instant appeal is by the legal heirs of original seller namely; Late Heeralal Awasthi (died on 14-10-2012), who entered into an agreement for sale of a land to the plaintiff/respondent No.1. 3. The suit was filed by the plaintiff against the legal heirs of Heeralal Awasthi (since deceased). The suit having been decreed in favour of the plaintiff, the instant appeal is by the legal heirs of Heeralal. The plaintiff Kamal Kishore Chhabra filed a suit for specific performance of contract against the legal heirs of Heeralal, pleading, inter alia, that on 3-10-2011 the plaintiff entered into an agreement with Heeralal to purchase the plot bearing No.21 & 22/2 admeasuring 629 sq.ft. for a sale consideration of Rs.16,94,000/-. Late Heeralal wanted to sell the property and in lieu thereof part performance amount of Rs.2.00 lacs was received and thereafter an agreement was executed. Subsequently, Heeralal died on 14-10-2012 and the names of legal heirs of Heeralal were subsequently recorded in the nazul records in the year 2014. After the names of legal heirs were recorded, since sale deed was not being executed as per terms of the agreement, a legal notice was served through the counsel to get the sale deed registered, but eventually the sale deed having not been executed the suit for specific performance was filed. Plaintiff pleaded that he was ready and willing to perform his part of contract but because from initial stage Heeralal was not keeping well, as such, sale deed could not be executed. It was stated that since the legal heirs failed to execute the sale deed, the plaintiff raised a doubt that they wanted to usurp the amount of Rs.2.00 lacs, as such, the suit was filed. 4. The appellant/defendant herein denied the execution of agreement and it was further stated that Heeralal was not the sole and exclusive owner of the land, but the plaintiff wanted to get the sale deed executed in his name on the basis of a forged and fabricated agreement. The defendant claimed for dismissal of the suit. 5. The plaintiff examined himself as PW-1 and one Sadhuram Hirani as PW-2. The defendant claimed for dismissal of the suit. 5. The plaintiff examined himself as PW-1 and one Sadhuram Hirani as PW-2. No evidence was adduced on behalf of the defendant. Learned trial Court after evaluating the evidence, decreed the suit for specific performance in favour of the plaintiff. 6. (a) Mr. Manoj Paranjape, learned counsel appearing with Mr. Anushul Tiwari, learned counsel for the appellant would submit that as per the agreement dated 3-10-2011 (Ex.P/1) the time was the essence of contract and as per the agreement the sale deed was to be executed by 31-1-2012. The initial seller Heeralal, who entered into agreement for the alleged sale, died on 14-10-2012 and during the life time of Heeralal, it was nothing on record that what steps were taken by the plaintiff to show his readiness and willingness to perform the contract. Referring to contents of agreement (Ex.P/1), learned counsel would submit that at the time of initial agreement, an amount of Rs.2.00 lacs was paid by cash and an amount of Rs.4.00 lacs was handed over in the form of cheque, which got bounced, therefore, the initial agreement of sale itself was not acted upon. (b) Learned counsel would further submit that no specific pleading has been made as per the provisions of Section 16(c) of the Specific Relief Act, 1963 (henceforth ‘the Act, 1963’) with regard to readiness and willingness to execute the sale deed. He would also submit that in respect of the averments that the cheque which was bounced on account of insufficiency of funds, no whisper has been made either in the pleadings or in the evidence. He would submit that there is nothing on record to show that all the efforts were done by the plaintiff to get the sale deed executed and since during the life time of Heeralal an amount of Rs.4.00 lacs was not realised, which was paid by cheque, the specific performance of the suit could not have been decreed. He would next submit that the readiness and willingness should exist in the end and no inference can be drawn which includes the capacity to pay. 7. (a) Per contra, Mr. Prafull N. Bharat, learned senior counsel appearing with Mr. Harshal Chouhan & Mr. He would next submit that the readiness and willingness should exist in the end and no inference can be drawn which includes the capacity to pay. 7. (a) Per contra, Mr. Prafull N. Bharat, learned senior counsel appearing with Mr. Harshal Chouhan & Mr. Tanmay Thomas, learned counsel for the respondent/plaintiff, would submit that reading of the plaint would show that specific pleading about the readiness and willingness to perform the part of contract is pleaded. Referring to law laid down by the Supreme Court in the matter of Biswanath Ghosh (Dead) By Legal Representatives and Others v Gobinda Ghosh alias Gobindha Chandra Ghosh and Others, (2014) 11 SCC 605 and Madhukar Niurutti Jagtap and Others v Pramilabai Chandulal Parandekar (Dead) through Legal Representatives and Others, (2020) 15 SCC 731 , learned counsel would submit that readiness and willingness is to be gathered by the conduct of parties and in the instant case cheque of Rs.4.00 lacs was required to be encashed after mutation of name of Smt. Neha Chhabra, wife of the plaintiff, in the revenue records in respect of purchase of adjacent plot whereas before such mutation could take effect, the deceased Heeralal tried to encash the cheque which was beyond the terms of agreement. Consequently, the cheque could not be encashed. (b) Learned senior counsel would also submit that in the written statement different defence was set up about denial of agreement and since Heeralal died before filing of the suit the legal notice was sent to the legal heirs of Heeralal, which they failed to comply, therefore, the suit was filed. He would submit that terms of the agreement would itself show that it is a conditional one. Thus, the trial Court has come to a correct finding of fact that without any lawful reason the sale deed was not executed, therefore, the judgment and decree for specific performance of suit is well merited, which do not call for any interference. 8. We have heard learned counsel appearing for the parties, perused the pleadings and the evidence available on record. 9. The agreement is marked as Ex.P/1. Perusal of agreement would show that the sale consideration of Rs.16,94,000/- was fixed for sale of property of sheet No.33, plot No.21 and 22/2 admeasuring 629 sq.ft. situated at Khaparganj. The seller was Heeralal (since deceased). 9. The agreement is marked as Ex.P/1. Perusal of agreement would show that the sale consideration of Rs.16,94,000/- was fixed for sale of property of sheet No.33, plot No.21 and 22/2 admeasuring 629 sq.ft. situated at Khaparganj. The seller was Heeralal (since deceased). According to the agreement dated 3-10-2011, an amount of Rs.2.00 lacs was paid by cash and a cheque of Rs.4.00 lacs was given thereby total advance earnest money of Rs.6.00 lacs was paid. It was further agreed that the remaining amount of the sale consideration would be paid at the time of registration. The sale deed further purports that on 3-10-2011 another part of plot No.21 & 22/2 admeasuring 1090 sq.ft. was sold to Smt. Neha Chhabra and agreement further reads that after the name of Smt. Neha Chhabra is mutated in the revenue records, the cheque of Rs.4.00 lacs would be realised and by target date i.e. 31-1-2012 the sale deed would be executed. Reading of the agreement would further show that specific date was mentioned i.e. 31-1-2012 and by that date the sale deed would be executed. Admittedly, no sale deed was executed till that date and suit was filed on 11-9-2014. 10. The question cropped up for consideration is as to whether the time was essence of contract. The said issue came up for consideration before the Supreme Court on number of occasions. 11. In Rathnavathi and Another v Kavita Ganashamdas, (2015) 5 SCC 223 , the Supreme Court reiterated the law down in Govind Prasad Chaturvedi v Hari Dutt Shastri, (1977) 2 SCC 539 and Gomathinayagam Pillai v Palaniswami Nadar, AIR 1967 SC 868 and held thus at paras 35 and 36 : 35. In Govind Prasad Chaturvedi Vs. Hari Dutt Shastri, this Court placing reliance on the law laid down in Gomathinayagam Pillai, reiterated the aforesaid principle and held as under (Govind Prasad case, SCC pp.543-44, paras 5-6): “5…….It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the 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 the contract. 6. The intention to treat time as the essence of the 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 the contract. 6. Apart from the normal presumption that in the case of an agreement of sale of immovable properly time is not the essence of the contract and the fact that the terms of the agreement do not unmistakably state that the time was understood to be the essence of the contract neither in the pleadings nor during the trial the respondents contended that time was of the essence of the contract.” 36. Again in Chand Rani vs. Kamal Rani, this Court placing reliance on law laid down in aforementioned two cases took the same view. Similar view was taken with more elaboration on the issue in K.S. Vidyanadam v. Vairavan, wherein it was held as under (SCC pp.7&9, paras 10 & 11): “10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani (SCC p.528, para 25) “25....it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?) : (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.” In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. “11……Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so…...” The aforesaid view was upheld in K. Narendra vs. Riviera Apartments (P) Ltd. 12. The aforesaid judgment would indicate that in an agreement of sale relating to immovable property, time would not be essence unless specifically provided to that effect. 13. Now going back to the agreement it would show that the target date of 31-1-2012 was the date specified for execution of sale deed. The agreement further reveals that a cheque of Rs.4.00 lacs was given and the same would be payable when the mutation of name of Smt. Neha Chhabra in the revenue record is done in respect of adjacent plot for which the sale deed was executed on 3-10-2011. 14. The agreement further reveals that a cheque of Rs.4.00 lacs was given and the same would be payable when the mutation of name of Smt. Neha Chhabra in the revenue record is done in respect of adjacent plot for which the sale deed was executed on 3-10-2011. 14. From perusal of the statement of plaintiff, it is manifest that there is nothing on record to show that what efforts were made by the purchaser to get the name of Smt. Neha Chhabra to be mutated in the revenue records, which was effected by a different sale. When the plaintiff came to the Court that the defendants failed to execute the sale deed then it was for him to establish that mutation of name of Smt. Neha Chhabra could not be made because of non cooperation on the part of the respondent. Even otherwise, as per Section 109 of the Chhattisgarh Land Revenue Code, 1959 (for short ‘the CGLRC’) it is the duty of the purchaser to get the name mutated, therefore, on one part when the plaintiff tried to project that the contract was a contingent one and the part amount of earnest money is payable, then how the sale deed could not be executed despite due diligence of the plaintiff should be placed before the Court. 15. In the matter of Madhukar Niurutti Jagtap (supra) the Supreme Court held that when the plaintiff is seeking specific performance of a contract and he is ready and willing to perform his part of contract then the surrounding circumstances are required to be examined. The plaintiff must be found standing with the contract and the plaintiff’s conduct should not be carrying any such blameworthiness so as to be considered inequitable. 16. Further in order to get decree of specific performance, the plaintiff must prove that he was ready and willing to perform his part of contract. Though the pleading has been made by the plaintiff that he was ready and willing to perform his part of contract, but that would not be the sole abiter sidelining the other surrounding circumstances. 16. Further in order to get decree of specific performance, the plaintiff must prove that he was ready and willing to perform his part of contract. Though the pleading has been made by the plaintiff that he was ready and willing to perform his part of contract, but that would not be the sole abiter sidelining the other surrounding circumstances. The agreement purports that total part performance of contract of Rs.6.00 lacs was paid as earnest money and out of the said amount, Rs.2.00 lacs was paid in cash and Rs.4.00 lacs was given in the form of cheque, which was to be encashed after mutation of name of one Smt. Neha Chhabra in the revenue record, in respect of the adjacent plot. 17. Before us it is not clear or any evidence is adduced as to whether such mutation took place or not, therefore, by mere pleading it cannot be inferred that really there was sincere effort exhausted by the plaintiff to get the name mutated so as to allow encashment of cheque amounting to Rs.4.00 lacs, which was held by the seller. 18. The Supreme Court in the matter of His Holiness Acharya Swami Ganesh Dassji v Sita Ram Thapar, (1996) 4 SCC 526 , observed that in order to arrive at a decision of compliance of clause (c) of Section 16 of the Act, 1963 to demonstrate the readiness and willingness of plaintiff to perform his part of contract. There is a distinction between readiness to perform the contract and willingness to perform the contract. The readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of contract, the conduct has to be properly scrutinised. The cheque of Rs.4.00 lacs which was sought to be encashed was bounced because of the fact for want of fund. 19. We are not required to deliberate on this issue inasmuch as the said encashment was made in contingent of mutation proceeding, but certainly whether what was such mutation and proceeding, the plaintiff was required to place it on record before this Court to show that he has exhausted all the available sources and statutory remedy to get the name mutated so as to sustain and keep the contract alive. The learned trial Court in its finding has not seriously dealt to find out the readiness and willingness. 20. The Supreme Court in the matter of Jaswinder Kaur (now Deceased) through the Legal Representatives and Others v Gurmeet Singh and Others, (2017) 12 SCC 810 , held that it is incumbent upon the High Court to consider legality of the finding of non-readiness and willingness of plaintiffs which is of sine qua non for passing decree in a suit for specific performance in part or as a whole. It cannot be made by passing observation that it has to be seen in the facts and circumstances of the case are required to be considered, therefore, positive finding about the readiness and willingness is required to be drawn and it cannot be presumed in absence of facts. 21. When the pleadings of the plaintiff are seen it never speaks about the payment of Rs.2.00 lacs and with respect to handing over of cheque and happening of mutation of adjacent plot it is completely silent. This fact can be ascertained from reading of contents of agreement (Ex.P/1). The agreement purports that the time for execution of the sale deed was 31-1-2012. Heeralal subsequently died on 14-10-2012 and till that date what efforts were taken by the plaintiff is not clear and no presumption can be drawn. 22. The Supreme Court in the matter of A. Kanthamani v Nasreen Ahmed, (2017) 4 SCC 654 , has reiterated the law laid down in the matter of Ardeshir H. Mama v Flora Sassoon, AIR 1928 PC 208 and held that in a suit for specific performance a person is required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing. Till the suit was filed there is no evidence on record that what efforts were made after encashment of cheque to the tune of Rs.4.00 lacs was dependant upon mutation of name of Smt. Neha Chhabra with respect to adjacent plot. Then in such case what was the proceeding of mutation should have been brought before the Court, but pleading is completely silent. There is nothing on record to evaluate the facts on evidence. On a simple finding of the learned trial Court without any elaborate reason or positive finding, we are unable to agree with the finding of the learned Court below. There is nothing on record to evaluate the facts on evidence. On a simple finding of the learned trial Court without any elaborate reason or positive finding, we are unable to agree with the finding of the learned Court below. Thus, in our considered view, the impugned judgment and decree of the Court below is accordingly set aside. 23. The facts would show that the plaintiff had paid an amount of Rs.2.00 lacs to the father of the appellant/defendant namely; Heeralal. No efforts have been made by the appellant to return or he has shown any gesture to return the same. Since we have declined to issue the decree for specific performance, therefore, at the same time it may not lead to unjust enrichment to the appellant. Unjust enrichment could be defined as a benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make requisition or recompense. 24. The Supreme Court in the matter of India Council for Enviro-legal Action v Union of India and others, (2011) 8 SCC 161 discussed different case-laws. Few of the paras i.e. para Nos.152, 153, 154, 155 & 156 are reproduced here-in-below: 152. Unjust enrichment' 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. 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) Delware 1999), 232-33. 154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. 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 Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1942] 2 All ER 122, Lord Wright stated the principle thus : "....(A)ny 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. 25. Since the money is in hold of the appellant/defendant, we are of the opinion that the respondent/plaintiff has a right of restitution and he cannot be deprived of the said amount. The Supreme Court has observed that the restitution and unjust enrichment have to be viewed in two stages i.e. pre-suit and post-suit. In the pre-suit position the amount is not returned and also in the post-suit the amount is still with the appellant. 26. In the circumstances of this case, applying the principles of justice and equity, we deem it appropriate to direct the appellant/defendant to pay an amount of Rs.2.00 lacs to the respondent/plaintiff along with interest at the rate of 6% per annum from 3-10-2011. Ordered accordingly. 27. 26. In the circumstances of this case, applying the principles of justice and equity, we deem it appropriate to direct the appellant/defendant to pay an amount of Rs.2.00 lacs to the respondent/plaintiff along with interest at the rate of 6% per annum from 3-10-2011. Ordered accordingly. 27. In the result, the appeal is allowed, leaving the parties to bear their own cost(s). 28. A decree be drawn accordingly.