JUDGMENT : GOUTAM BHADURI, J. 1. Heard. 2. The present appeal is against the judgment and decree dated 28.11.2020 passed by the District Judge, Rajnandgaon (CG), in Civil Suit No. 61-A/2014, whereby, a suit filed for Specific Performance of the Contract was dismissed. Therefore, the appellants/plaintiffs are before this Court. 3. A Civil Suit was filed with a pleading that the defendants owns a land bearing Khasra No. 459 admeasuring 0.07/2 decimal, wherein, three shops of 33 x 11 feet in size exists. The defendants agreed to sell the same and entered into an agreement on 18.10.2013 for a sale consideration of Rs.10,21,000/- and at the time of execution, Rs.1,00,000/- was paid as earnest money. Subsequently, an amount of Rs.50,000/- was paid on 08.02.2014, on 04.03.2014 another payment of Rs.1,00,000/- was made and on 05.09.2014 a sum of Rs.50,000/- was further paid towards the sale consideration. It was not in dispute that on the date of agreement, in the suit property, name of the father of the defendants was mutated. Since he had died, as such, it was agreed between the parties that after the names of the defendants as a legal heir are recorded, the sale deed would be registered. The sale-deed having not been registered, a legal notice was served to the defendants on 05.11.2014, which was replied by the defendants and it was stated that by efflux of time, the agreement has come to an end and the defendants failed to register the sale-deed. The agreement further postulates that in January, 2014, Rs.1,00,000/- would be paid and thereafter after the Holi Festival of 2014, Rs.4,00,000/- would be paid and the rest of the amount would be paid within 1 year from the date of agreement of 18.10.2013. The plaintiffs stated that the defendants did not inform the correction of the mutation of their names in the revenue records, as such, they were not in know of the fact for execution of the sale deed. The plaintiffs further stated that the amount of sale consideration was agreed to be settled after the demarcation of the suit property but the suit property was never demarcated and on some pretext or other, the defendants avoided to execute the sale deed, therefore, eventually the suit was filed. 4. The plaintiffs further stated that the amount of sale consideration was agreed to be settled after the demarcation of the suit property but the suit property was never demarcated and on some pretext or other, the defendants avoided to execute the sale deed, therefore, eventually the suit was filed. 4. Per contra to the plaint allegation, the defendants resisted the claim and stated that within 1 year from the date of execution of agreement dated 18.10.2013, the entire sale consideration was agreed to be paid. The defendants further stated that the agreement stipulated that after payment of earnest money of Rs.1,00,000/- was to be paid in January, 2014 and after the Holi Festival of 2014, Rs.4,00,000/- was to be paid and rest of the amount was to be paid within one year from the date of agreement dated 18.10.2013. The defendants stated that as per the terms of agreement, the plaintiffs did not pay the amount and they themselves committed breach of agreement and on false pretext, the amount of Rs.1,00,000/- was paid as earnest money and subsequently, on the different dates, Rs.3,00,000/- was paid, whereas, the plaintiffs were further required to pay Rs.6,00,000/-. The defendants further stated that the sale-deed was to be executed within 1 year and as agreed upon, they got the revenue records’ mutation corrected and the area was demarcated before the date of agreement on 17.10.2013, which was duly informed to the plaintiffs. The plaintiffs having verified the mutation proceedings, entered into an agreement on 18.10.2013, but did not adhere to the terms of payment nor got the sale deed executed within 1 year, instead served them notice, whereas the agreement came to an end on 17.10.2014. It was further stated that the plaintiffs served the notice after the agreement came to an end, therefore, they were not entitled for suit for specific performance and as agreed upon, the entire earnest money was required to be forfeited for breach of the sale conditions. 5. The learned trial court framed six issues and held that the plaintiffs were not ready and willing to perform their part of contract of 18.10.2013 and since the time was the essence of contract, the plaintiffs were non-suited, and the suit was dismissed. Hence, this appeal. 6. 5. The learned trial court framed six issues and held that the plaintiffs were not ready and willing to perform their part of contract of 18.10.2013 and since the time was the essence of contract, the plaintiffs were non-suited, and the suit was dismissed. Hence, this appeal. 6. Learned counsel for the appellants/plaintiffs would submit that after execution of the agreement on 18.10.2013, the terms of agreement would show that it was the duty caste upon the defendants/respondents to get their names mutated in the revenue records and to inform the same to the plaintiffs. It is contended, it was duty of defendants to get the land demarcated, therefore, it was a contingent contract. It is further stated that a promise was to be performed by the defendant-seller and upon compliance of that only, the obligation to execute the sale deed would have arisen. He would further submit that the tender of the sale consideration in the intervening dates was accepted, as such, the defendants themselves stated that the time was not the essence of contract. He further submitted that as per the defendants, if the suit property was already demarcated prior to the date of agreement on 17.10.2013, then such condition of demarcation why was incorporated in the agreement, has not been properly explained. It is stated on the contrary it shows that the land was required to be demarcated before the execution of the sale deed by the defendants. He further submitted that even the mutation of names of the defendants in revenue records was not informed to the plaintiffs so as to perform their part of contract, consequently, the suit was liable to be decreed. He further submit that during the pendency of Appeal, an application has been filed under Section 22(2) of the Specific Relief Act, 1963 seeking amendment that in the event of refusal by Court to pass a decree for specific performance, the amount received by the defendants be returned. The said amendment be allowed, in case the suit for specific performance is denied. 7. Per contra, Shri H.B. Agrawal, learned senior counsel assisted by Ms. The said amendment be allowed, in case the suit for specific performance is denied. 7. Per contra, Shri H.B. Agrawal, learned senior counsel assisted by Ms. Swati Agrawal, would submit that the agreement would show that the payment of Rs.1,00,000/- was agreed to be paid on a specific date in January, 2014 and after Holi Festival of 2014, Rs.4,00,000/- was agreed to be paid apart from the earnest money of Rs.1,00,000/- and rest of the amount was to be paid within 1 year from 18.10.2013. He would further submit that the agreement Ex.P/1 would show that the earnest money was to be forfeited in case of default of any party and the agreement having not been disputed, the contents of the agreement would be deemed to be an admission under Order 12 Rule 6 of the C.P.C. He would further submit that the plaintiffs have failed to perform the contract by showing their readiness and willingness to perform the contract. In support of his contention, learned counsel would place reliance upon the decisions rendered by the Supreme Court in the matters of J.P. Builders and Another vs. A. Ramadas Rao and Another, (2011) 1 SCC 429 and Ramesh Chand and Others vs. Tanmay Developers Private Ltd. (2017) 13 SCC 715 , therefore, the judgment and decree of the court below is well merited, which do not call for any interference. 8. We have heard learned counsel appearing for the parties at length and perused the record. 9. The agreement on which the Civil Suit was preferred is Ex.P/1. Reading of the said agreement would show that the property of Khasra No. 459, wherein, three shops were constructed was agreed to be sold by the defendants, who were sons of late Heera Dewangan. The agreement purports that on 18.10.2013, Rs.1,00,000/- was paid as advance and thereafter, the agreement purports that in January, 2014, Rs.1,00,000/- would be paid and after Holi Festival of 2014, another Rs.4,00,000/- would be paid12 and rest of the remaining amount was agreed to be paid within 1 year from 18.10.2013. Perusal of the original agreement would show that the time schedule for the payment of sale consideration as agreed upon, was not followed. Perusal of the original agreement would show that the time schedule for the payment of sale consideration as agreed upon, was not followed. After the payment of earnest money of Rs.1,00,000/- on 18.10.2013, on 08.02.2014, Rs.50,000/- was paid which was accepted by the seller and subsequently, on 04.03.2014, another sum of Rs.1,00,000/- was paid which was accepted by the seller and on 11.04.2014, Rs.1,00,000/- was further paid and lastly, on 05.09.2014, another sum of Rs.50,000/- was paid. Thereby, the plaintiffs have paid total amount of Rs.4,00,000/-, including the earnest money of Rs.1,00,000/-. 10. According to the agreement, the sale-deed was to be executed within 1 year from 18.10.2013. The agreement further purports that after the demarcation carried out by the Patwari, the sale consideration would be paid. When the agreement did not materialize, a notice was served to the respondents vide Ex.P/2 by the appellants, wherein, the particulars of the sale consideration were shown at paragraph 1, which was admitted by the respondents. The respondents admitted the fact that after the agreement, the suit land would be mutated in their names and thereafter, the property would be demarcated. The respondents stated that the demarcation was never denied by them. In the written statement at paragraph 6, the respondents stated that the demarcation was carried out on 17.10.2013, that is the date prior to the date of execution of the agreement. 11. In the agreement Ex.P/1, it was stated that the sale consideration would be paid after the demarcation of the suit property. The statement of DW-1 Preetam Dewangan would show that at paragraph 8, he admitted the fact that till 18.10.2013, i.e. the date of agreement, no demarcation was carried out. Consequently, the averments in the agreement that the sale consideration would be paid after the property is demarcated appears to be reasonable, as the defendants themselves came out with a contradictory statement in written statement and the evidence. Therefore, it can be presumed that the parties agreed to get the sale consideration settled after the demarcation of the suit property is carried out. Defendant No. 1, in his statement admitted the fact at paragraph 8 that after names of the defendants were mutated in the revenue record, it was not informed by any written communication, but oral communication was made. 12. Defendant No. 1, in his statement admitted the fact at paragraph 8 that after names of the defendants were mutated in the revenue record, it was not informed by any written communication, but oral communication was made. 12. Perusal of the agreement Ex.P/1 records that after the revenue mutation proceedings are effected, the sale-deed would be executed. It is also quite logical to presume that when the names of the sellers were not recorded in the revenue records, one may refuse to purchase a property. Therefore, it would be reasonable for the parties to agree to the terms to get the sale deed executed after their names are recorded. There is nothing on record to show that such communication in writing was ever made except an oral statement, which has been denied by the plaintiffs/purchasers. Therefore, the execution of the agreement was dependent upon the happening of the acts of the parties and non-occurrence of such act or omission cannot bind the time limit of execution of the sale-deed. 13. Further the agreement which is not in dispute would show that both the parties agreed that at the time of execution after payment of Rs.1,00,000/- another Rs.5,00,000/- was agreed to be paid from January, 2014 till after the Holi Festival of 2014, thereby it was a consideration of Rs.6,00,000/- as a part payment was agreed to be paid. However, as against this, the defendants/sellers accepted Rs.50,000/- on 08th February, 2014, Rs.1,00,000/- on 04.03.2014, Rs.1,00,000/- on 11.04.2014 and Rs.50,000/- on 05.09.2014. There is no evidence on record with regard to refusal of payment of aforesaid amount. On the contrary, the endorsement made in Ex.P/1 would show that the amount so tendered was accepted without any protest. Consequently, the act of the parties in unmistakable terms points out that the time was not essence of contract. Both the parties deviated from the scheduled payment and the contingent act to demarcate the land on the part of the seller would show that both the parties with the passage of time by their conduct made the time was not the essence of contract. 14. The issue of whether time can be essence of contract in sale of immovable property came up for consideration before the Supreme Court on number of occasions. 14. The issue of whether time can be essence of contract in sale of immovable property came up for consideration before the Supreme Court on number of occasions. In Rathnavathi and Another vs. Kavita Ganashamdas, (2015) 5 SCC 223 the Supreme Court reiterated the law down in Govind Prasad Chaturvedi vs. Hari Dutt Shastri, (1977) 2 SCC 539 and Gomathinayagam Pillai vs. 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. 543-544, 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. 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 vs. Vairavan, wherein it was held as under (SCC pp. 7 and 9, Paras 10 and 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. 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-limits 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 vs. 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. (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-limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised. (2) from the nature of the property. (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-limits 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. 15. 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 and the conduct of parties shall be an relevant factor. 16. Now, coming back to the part of readiness and willingness on the part of the plaintiffs/appellants, the evidence on record would show that parties to contract could not adhere to the time schedule fixed under the contract. Though, the conduct of parties shows that the time was not the essence of contract, but at the same time, this would be important to evaluate the financial position of the appellants as to whether they were ready and willing to perform the part of contract. There is no evidence on record to appreciate that the plaintiffs were in hold of sufficient fund to execute the sale-deed and admittedly the amount of Rs.6,00,000/- was not paid as agreed to be paid within specific period of time. 17. The Supreme Court in the matter of U.N. Krishnamurthy (Since Deceased) through LRs. vs. A.M. Krishnamurty, 2022 SCC Online SC 840 has held when the plaintiff was not in possession of sufficient fund to execute the sale deed, it would be presumed that he is not ready and willing to execute the sale-deed. 17. The Supreme Court in the matter of U.N. Krishnamurthy (Since Deceased) through LRs. vs. A.M. Krishnamurty, 2022 SCC Online SC 840 has held when the plaintiff was not in possession of sufficient fund to execute the sale deed, it would be presumed that he is not ready and willing to execute the sale-deed. The observations made in U.N. Krishnamurthy (Since Deceased) (supra) further show that the plaintiffs would have to plead that they had sufficient funds or were in a position to raise funds in time to discharge their obligation under the contract. The plaintiffs admitted that as per the agreement they have not paid amount of Rs.4,00,000/- to the defendants. There is nothing on record to appreciate the financial capacity of the plaintiffs. In the background of facts that they did not fulfill their obligation to pay the amount within a specified time after Holi Festival. Therefore, the submission of the defendant that the plaintiffs should have proved the fact that he has sufficient means cannot be seen in isolation without the conduct of the defendants/respondents. 18. Therefore, though the time was not the essence of contract, we are of the considered view that the plaintiffs on their part were not able to plead and prove that they were having sufficient fund to get the sale deed executed. Consequently, on these grounds, we are unable to agree with the proposition forwarded by the learned counsel for the appellants to grant the decree of specific performance of contract. 19. During the pendency of this appeal, the appellants have filed an application for amendment seeking return of the earnest money. We have considered the implication of the said application and have given a thoughtful conclusion over it. After due consideration, we are inclined to allow the same. Necessary amendment be carried out in the plaint within a period of 21 days from today in accordance with the rules. Further the fact that the appellants have parted with an amount of Rs.4,00,000/-, which is in hold of the respondents. The respondents though tried to raise the ground of the fact that the time was essence of the contract and amount was liable to be forfeited by the conduct of the parties, we have already held that time was not the essence of contract and therefore, it would be equitable to arrest the unjust enrichment to cause loss to the appellants. 20. 20. The Supreme Court in the matter of India Council for Enviro-legal Action vs. 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 and 156 are reproduced herein-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 vs. Nash, 732 A 2d 217) Delware 1999, 232-233. 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 vs. Fairbairn Lawson Combe Barbour Ltd. (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 vs. 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. Lord Denning also stated in Nelson vs. 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. 21. Applying the aforesaid principles in the present case, the suit was filed on 19.12.2014. Meaning thereby, the plaintiffs/appellants was not dornment and was sleeping over to make the claim stale. Therefore, the plaintiffs have a right of restitution having parted with the amount of Rs.4,00,000/- as it has been observed by the Supreme Court that undue enrichment and restitution have to be viewed in 2 stages that the pre-suit and post-suit. In the stage the pre-suit proceeding, the amount of Rs.4,00,000/- was not returned and in the post-suit proceeding also. No efforts have been made by the respondents to return the amount of Rs.4,00,000/-. Accordingly, we direct that the defendants/respondents shall be liable to return the amount of Rs.4,00,000/- with an interest @ 6% per annum from 17.10.2014 till the date of recovery of the said charges. The recovery of amount will have a charge over the suit property of the respondents. Accordingly, we order the following: (i) The appeal filed by the appellants for specific performance of the suit is dismissed and the judgment and decree of the learned court below is affirmed to the said extent. (ii) The respondents shall be liable to pay back the amount of Rs.4,00,000/- with an interest @ 6% per annum from 17.10.2014 to the appellants. (iii) The said recovery of the amount shall be treated as a charge over the suit property of the respondents and in absence of any payment of amount within the further period of 45 days, the appellants shall have right to get the amount recovered by way of execution. 22. (iii) The said recovery of the amount shall be treated as a charge over the suit property of the respondents and in absence of any payment of amount within the further period of 45 days, the appellants shall have right to get the amount recovered by way of execution. 22. In the result, the appeal is allowed in part to the extent indicated above, leaving the parties to bear their own costs. 23. A decree be drawn accordingly.