JUDGMENT : Sachin Singh Rajput, J. 1. Challenge in this appeal filed under Section 96 of the Code of Civil Procedure, 1908 by the appellant/plaintiff is to the judgment and decree dated 28/08/2017 passed by the 9th Additional District Judge, Raipur (C.G.) in Civil Suit No. 11-A/2015; whereby the suit for specific performance of contract filed by the appellant/plaintiff was dismissed. 2. The undisputed facts in the case is that the suit property i.e. a house including Abadi land comprised in piece of Khasra No. 480/1 area 2133 square foot P.H. No. 109 upon which Kaccha house of 500 square feet is constructed, an agreement to sale was executed on 09/01/2012 between the plaintiff and the defendant. According to the said agreement (Ex.P-1) the last date of execution of sale deed was fixed as 31/03/2012. 3. Suit of the plaintiff in nutshell is that the defendant entered into an agreement of sale with the plaintiff on 09/01/2012 of the disputed property @ Rs. 600 per square feet amounting to Rs. 12,89,800/-. Rs. 2,00,000/- as advance money was also received by the defendant in presence of two witnesses and in continuation of the agreement out of remaining amount, Rs. 2,50,000/- was received by the defendant on 02/03/2012 on account of going to Gujarat for her personal work through her husband Mohammad Idris Memon. The acknowledgment of the same was made by the husband of the defendant on back side of the original agreement dated 09/01/2012. The defendant promised the plaintiff to get the sale deed, executed till 31/03/2012. Plaintiff met the defendant after she came back from Gujarat and requested for execution of the sale deed which was avoided by the defendant on one pretext or other. The plaintiff sent a legal notice through his Advocate on 04/06/2014 which was replied by the defendant on 16/06/2014 and denied the registration of the disputed property and stated that the advance money is forfeited. It is the further case of the plaintiff that as per condition of the agreement, the defendant was required to make available the necessary document, but, within that period she neither arranged the necessary documents for registration nor contacted the plaintiff. Further pleading goes to show that defendant has received Rs. It is the further case of the plaintiff that as per condition of the agreement, the defendant was required to make available the necessary document, but, within that period she neither arranged the necessary documents for registration nor contacted the plaintiff. Further pleading goes to show that defendant has received Rs. 4,50,000/- as advance money from the plaintiff and in order to grab the said amount with malafide intention, she is refusing to register the sale deed; whereas the plaintiff is ready to pay the remaining amount as per the agreement and was always willing to execute the sale deed. Plaintiff further pleaded that public notice was also published in daily newspaper Dainik Bhaskar on 05/06/2014, therefore, the plaintiff prayed for a decree of specific performance and in alternative, refund of advance money of Rs. 4,50,000/- from the defendant. 4. The defendant entered her appearance before learned Trial Court and filed her written statement, baring admitted facts, she denied the pleadings made in the plaint. It was the further pleading of defendant that only Rs. 2,50,000/- was paid to her through her husband Mohammad Idris Memon and defendant was assured by the plaintiff that within the time limit, sale deed would be executed and the remaining amount would be paid, but, the plaintiff failed to pay the remaining amount of sale consideration and despite of necessary documents were made available, failed to execute the sale deed; whereas the defendant was always ready and willing to perform her part of agreement. She further pleaded that on many times the plaintiff was requested for execution of the sale deed and its registration and ultimately a registered notice dated 19/06/2012 was sent to the plaintiff on his address at Ravi Nagar, behind Mosque, Raipur, but, the same was returned unserved. She further pleaded that since the necessary revenue records were made available as per the conditions of the agreement, therefore, a notice dated 04/06/2014 sent by the plaintiff, demand of revenue records was not made and only demanded the execution and registration of the sale deed. Since plaintiff failed to execute the registered sale deed within the date as prescribed in the agreement, under these circumstances, advance money given by the plaintiff is forfeited. Since plaintiff failed to execute the registered sale deed within the date as prescribed in the agreement, under these circumstances, advance money given by the plaintiff is forfeited. She further pleaded that the date of execution of sale deed is made on 31/03/2012 in the sale agreement and thereafter, after completion of two years, a notice dated 04/06/2014 was sent by the plaintiff. She prays that the suit may be dismissed. On the basis of above broad pleading, the learned Trial Court framed the following issues :- (1) Whether the defendant has executed an agreement dated 09/01/2012 in favour of plaintiff with respect to suit land at Village Pandritarai bearing Khasra No. 480/1 area 2133 square feet P.H. No. 109 RIC Raipur-2 Tahsil and District Raipur (C.G.) @ Rs. 600/- per square feet by receiving an advance amount of Rs. 2,00,000/-? (2) Whether the defendant through her husband Mohammad Idris Memon on 20/03/2012 received an amount of Rs. 2,50,000/- cash out of remaining amount of agreement amount from plaintiff? (3) Whether the plaintiff was ready and willing to perform his part of agreement? (4) Whether the plaintiff is entitled for specific performance of contract against the defendant in his favour? (5) Whether alternatively the plaintiff is entitled to receive the contractual amount of Rs.4,50,000/- alongwith 12 % interest from the defendant in option? (6) Relief and cost. 5. Learned Court decided issue No. 1, 2, as proved, Issue No. 3, 4, 5 in negative. The suit of plaintiff was dismissed in issue no.6. 6. Mr. Shikhar Sharma, learned Counsel for the appellant, while assailing the impugned judgment and decree submitted that the learned Trial Court committed an error of law and fact in dismissing the suit of the plaintiff. He further submits that the learned Trial Court has failed to appreciate the evidence brought before it to its proper perspective and erroneously passed the impugned judgment and decree. He submits that the appellant was always ready and willing to fulfill its part of the agreement, because of the failure on the part of the defendant, the sale deed could not be executed in time. He further submits that the execution of the agreement is not in dispute, therefore, the learned Trial Court ought to have passed the decree of specific performance of contract. He further submits that the execution of the agreement is not in dispute, therefore, the learned Trial Court ought to have passed the decree of specific performance of contract. He further submits that the learned Trial Court ought to have seen that on the basis of evidence available on record, it is crystal clear that the defendant did not perform her part of the agreement and necessary documents were not supplied and therefore, sale deed could not be executed within the time stipulated. 7. Alternatively, he submits that if the decree of specific performance is not granted, the advance money paid by the appellant/plaintiff may be directed to be refunded. 8. Mr. Raza Ali, learned Counsel appearing for the respondent opposes the submission made by the learned Counsel for the appellant/plaintiff and submits that the Trial Court has not committed any illegality or irregularity in dismissing the suit of the plaintiff. He further submitted that time was the essence of contract and the plaintiff could not perform his part of agreement within the stipulated time, therefore, as per the conditions of the agreement, the advance money was forfeited. He further submitted that the date to execute the sale deed was agreed upon as 31/03/2012 and the notice for specific performance of contract was issued on by the plaintiff on 04/06/2014, which goes to show that the notice was issued after two years hence the plaintiff was never ready and willing to perform his part of the agreement in time as stipulated in the sale agreement. The specific performance being a discretionary relief, was rightly denied by the learned Trial Court Since the advance money has rightly been forfeited, therefore, the plaintiff is also not entitled for the alternative relief as claimed. He placed reliance on the judgment of the Supreme Court in the case of Saradamani Kandappan and Ors. v. S. Rajalakshmi and Ors., 2011 LawSuit (SC) 704 and judgment of this Court in Bhagchand Jain v. Smt. Parwati Sharma and Anr. (FA No.295/2016) passed on 27/09/2022. 9. We have heard learned Counsel appearing for the parties, perused the pleading and the evidence available on record. 10. The first point of determination before this Court is whether the plaintiff is entitled for decree of specific performance of contract of agreement dated 09.01.2012. The execution of sale agreement is not in dispute. (FA No.295/2016) passed on 27/09/2022. 9. We have heard learned Counsel appearing for the parties, perused the pleading and the evidence available on record. 10. The first point of determination before this Court is whether the plaintiff is entitled for decree of specific performance of contract of agreement dated 09.01.2012. The execution of sale agreement is not in dispute. In order to prove his pleading the plaintiff examined himself as PW-1. In his affidavit under order 18 rule 4 of CPC he has deposed in the line of his pleadings in the plaint. He has exhibited the sale agreement as Ex-P/1, Notice sent by him as Ex-P/2, Postal Receipt as Ex-P/3, reply of notice sent by defendant as Ex-P/4, Public Notice dated 04.06.2014 as Ex-P/5 and paper publication of Public Notice as Ex-P/6. He stated that the sale agreement was execute between him and the defendant on 09.01.2012 for the suit land. Rs.2,00,000/- was paid as advance in presence of witnesses. On 20.03.2012, the defendant received Rs.2,50,000/- cash through her husband Mohammed Idris Menon and promised to execute the sale deed till 31.03.2012. The husband of the defendant gave the acknowledgment on the back side of the sale agreement. He requested the plaintiff to execute the sale deed but she avoided the same on. The plaintiff could not arrange the documents necessary for registration such as map, B-1 and did not contact with him. When defendant refused to execute the sale deed, he sent a registered notice dated 04.06.2014 and demanded to execute the sale deed of the suit land in his favour. Defendant in reply dated 16.06.2014 denied the execution of sale deed and stated of forfeiture of advance amount. He deposed that a decree of specific performance of contract of sale agreement be granted in his favour. In the cross examination he admits as per the condition of the sale agreement execution of the suit land was to be done by 31.03.2012 on payment of entire sale consideration. He admits that if the entire amount of the disputed property is not paid within 31.03.2012, then the advance money was sure to be forfeited. He admits that till 31.03.2012 entire amount of the disputed property was not paid to defendant by me. He admits that he has not sent any notice within 1-2 months after the last date of execution of sale deed i.e. 31.03.2012. He admits that till 31.03.2012 entire amount of the disputed property was not paid to defendant by me. He admits that he has not sent any notice within 1-2 months after the last date of execution of sale deed i.e. 31.03.2012. He stated that in the month of April 2012 he personally met the husband of defendant then he said that the price of the land has increased, you give me more money then I will do the registry. He said that the defendant's husband kept him entangled in things for one and a half-two years, after that I sent a notice to the defendant in June 2014. 11. On behalf of defendant her husband and power of attorney holder Mohammed Idrin Menon was examined as DW-2. In his affidavit under order 18 rule 4 of CPC, he deposed in line of the written statement. He deposed that an agreement of sale dated 09.01.2012 was executed between plaintiff and defendant for the sale of suit land. As per condition of sale agreement, sale deed of the dispute property was to be executed before 31.03.2012. If the sale deed is not executed by 31.03.2012, the advance amount amount will be forfeited. Plaintiff could not execute the sale deed till 31.03.2012 hence the advance amount is forfeited and agreement dated 09.01.2012 is terminated. On 24.01.2012 plaintiff was intimated about document such as map, B-1 necessary for registry of disputed land, the plaintiff said that he will take those documents at the time of registry. A registered notice dated 19.06.2012 was sent to plaintiff’s address Ravi Nagar, Behind Mosque, Beside Blood Bank, Raipur but same was returned with endorsement “left”. Thereafter due search it was found that the plaintiff is resident of Block No. 21, Flat No. 101, Ashoka Ratan, VIP Estate, Khamhardih, Shankar Nagar, Raipur. On this address also a registered notice dated 16.07.2012 was sent to plaintiff bu the returned unserved with endorsement “locked”. He deposed that the plaintiff did not perform his part of contract hence he is not entitled for specific performance of contract. Defendant was always willing and ready for execution and registration of sale deed. In his cross examination he denied that the plaintiff was ready for registry of the disputed property. He denied that he has not filed patwari map in the record. Defendant was always willing and ready for execution and registration of sale deed. In his cross examination he denied that the plaintiff was ready for registry of the disputed property. He denied that he has not filed patwari map in the record. In detailed cross examination he remained firm and did not deviate from his deposition in the examination in chief. Moh. Anish Menon (DW-2) supported the case of defendant. 12. The learned trial court while deciding issue no.2 on scrutiny of evidence gave a finding that the plaintiff was not ready and willing to perform his part of contract. In order to obtain a decree of specific performance of contract the plaintiff is required to plead and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. In absence of it decree of specific performance cannot be granted. Onus to prove the same is on the plaintiff. 13. In case of KS Vidyanandam Vs. Vairavan reported in (1997) 3 SCC 1 , there was an agreement to sale of the immovable property for a consideration of Rs.60,000/- and Rs. 5,000/- was paid as advance. The balance amount was to be paid within six months and the plaintiff was required to purchase the stamp needed for it and inform the defendant as per terms of agreement. Suit for specific performance of contract was filed by the plaintiff after lapse of two and half year. The Hon’ble Supreme Court held as under:- “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. [….] In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15th of June, 1979. The suit notice was issued by the plaintiff only on 11.7.1981, i.e., more than two years after the expiry of six months' period. The question is that was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. [….] 13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the term of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices - according to the defendants, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.” (emphasis supplied) 14. Placing reliance on the above judgment the Hon’ble Supreme Court in case of Kolli Satyanarayana (Dead) By Lrs Vs. Valuripalli Kesava Rao Chowdary (Dead) Thr. Lrs. and Others reported in 2022 LiveLaw (SC) 807 in paragraph observed as under:- “12. In the case of K.S. Vidyanadam and Others v. Vairavan (1997) 3 SCC 1 , this Court has held that 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. It has been held that in case of urban properties, the prices have been rising sharply. It has been held that in case of urban properties, the prices have been rising sharply. It has been held that while exercising its discretion, the court should bear in mind that when the parties prescribe certain time limit(s) for taking steps by one or the other party, it must have some significance and that the said time limit(s) cannot be ignored altogether on the ground that time is not the essence of the contract.” (emphasis supplied) 15. In case of His Holiness Acharya swami Swami Ganesh Dassji Vs. Sita Ram Thapa reported in (1996) 4 SCC 526 Hon’ble Supreme Court dealt with the meaning of readiness and willingness. It was observed that ‘readiness’ means the capacity of the plaintiff to perform the contract which includes the financial situation to pay the sale consideration. To ascertain the ‘willingness’, conduct of the plaintiff has to be properly scrutinised. In paragraph 2 the Hon’ble Supreme Court held as under:- “There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. [….] The factum of readiness and willingness to perform plaintiff's part of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was no ready no capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bit for the time which disentitles him as time is the essence of the contract.” (emphasis supplied) 16. In a recent judgment in case of Shenbagam and Others Vs. KK Rathinavel reported in 2022 SCC Online SC 71 in paragraph 41 Hon’ble Supreme Court observed as under:- “41. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In a recent judgment in case of Shenbagam and Others Vs. KK Rathinavel reported in 2022 SCC Online SC 71 in paragraph 41 Hon’ble Supreme Court observed as under:- “41. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault…..” (emphasis supplied) 17. In light of the above authoritative pronouncement of the Hon’ble and on examination of the evidence available on record it evident that the last date of execution of sale deed was 31.03.2012. That plaintiff claimed that the necessary documents for registration of the sale deed would be made available by the defendant but she failed in doing so. Whereas the sale agreement does not stipulate the same rather it simply stipulate that at the time of registration of sale deed the same would be brought by the defendant. Witnesses of the defendant have clearly stated that availability of the necessary document was intimated to the plaintiff. The defendant on two occasion sent notice to the plaintiff but the same could not be served. This goes to show that the defendant has performed her part of contract and she cannot be said to be at fault. The legal notice was sent by the plaintiff after more than two years of last date of execution of sale deed i.e. 31.03.2012. Apart from this the plaintiff in his plaint has not pleaded that he had sufficient amount to get the sale deed executed. On deep scrutiny of the evidence and from the conduct of the plaintiff it is evident that the plaintiff was not ready and willing to perform his part of contract. Decree of specific performance is a discretionary relief and from the evidence available on record and looking to the conduct of the plaintiff, this court is not inclined to exercise the discretion in favour of plaintiff. 18. Decree of specific performance is a discretionary relief and from the evidence available on record and looking to the conduct of the plaintiff, this court is not inclined to exercise the discretion in favour of plaintiff. 18. This leads to the second point of determination as to whether the plaintiff is entitled for grant of decree of refund of the advance amount paid by him to the defendant. From the evidence available on record it is manifest of record that the plaintiff paid total Rs.4,50,000/- to the defendant as advance of the sale consideration. Though the plaintiff in his pleadings prayed for an alternative relief of refund of the advance amount. 19. Section 22 of the Specific Relief Act, 1963 is relevant and quoted herein below - “22. Power to grant relief for possession, partition, refund of earnest money, etc.— (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of subsection (1) shall be without prejudice to its powers to award compensation under section 21.” 20. In Satish Batra v. Sudhir Rawal reported in 2013 (1) SCC 345 Hon’ble Supreme Court held in para 15 that to justify the forfeiture of advance money being part of 'earnest money' the terms of the contract should be clear and explicit and that part payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply. 21. The Supreme Court in India Council for Enviro-Legal Action v. Union of India (2011) 8 SCC 161 discussed different case laws and observed that unjust enrichment is the unjust retention of a benefit to the loss of another. Few of paras i.e., para nos. 152, 153, 154, 155 & 156 are relevant and quoted 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 (72 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. 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 :- “...... 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.” 22. Though learned trial Court dismissed the suit for specific performance of contract and held that the forfeiture of advance amount was correct but the fact remains in view of the judgments quoted above that the total amount of Rs.4,50,000/- was retained by the respondent / defendant. From the evidence available on record it does appear that payment was made only towards part-payment of consideration. Therefore, the plaintiff has a right of restitution and he cannot be deprived of the amount paid to him to the defendant as the facts apparent on the surface of record fortifies the said logic. The Supreme Court also 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 postsuit the amount is still with the defendant. 23. In view of law laid down by the Supreme Court in the case of Satish Batra (supra) and India Council (supra), we deem it appropriate to direct respondent No.1 to return Rs.4,50,000/- to the plaintiff @ 6% from the date of filing of the suit and till its realisation. 24. With the aforesaid observation, the appeal is partly allowed. Decree be drawn accordingly. Parties to bear their own cost.