JUDGMENT : Per Rajani Dubey, J. 1. The appellants have filed the instant appeal against the judgment and decree dated 30.04.2018 passed by the 6th Additional District Judge, Durg, District- Durg Chhattisgarh in Civil Suit No. 6388A/2013 whereby the suit filed by the appellants/plaintiffs for grant of decree of Specific Performance of Contract has been dismissed. 2. Brief facts of the case as mentioned in the appeal are that the the appellants/plaintiffs filed a civil suit for Specific Performance of Contract in respect of the property i.e. the building block No.88, plot No.10 Motilal Nehru Nagar (East) Bhilai, Tahsil and District Durg. The claim in the suit was based on the ground that the plaintiffs are the permanent resident of Bhilai District Durg. The plaintiff No.1 is a Software Engineer working at Bangalore and he is earning a very handsome salary i.e. Rs. 1 lakh/month. The plaintiff No.2 is holding the degree of MBBS and at the relevant time was prosecuting his studies at Bangalore. The father and power of attorney holder of the plaintiffs was Assistant General Manager in Bhilai Steel Plant who retired from the said post in the year 2010 and he has obtained Rs.60 lakhs towards the retiral benefits. The plaintiffs are capable of purchasing the property in question. The agreement dated 08.03.2013 was executed by defendant No.1 in favour of the plaintiffs for sale of the property in question for a consideration of Rs.45 lakhs. The property was mortgaged with the HDFC Bank and the original papers of the property were lying with the HDFC Bank and for releasing/redemption the said property, the defendant No.1 was dire need of money and therefore the plaintiffs have paid Rs.5 lakhs on 03.10.2012, Rs.10 lakhs on 05.10.2012, Rs.5 lakhs on 08.03.2013 and Rs.15.70 lakhs on 09.04.2013, total Rs.35.70 lakhs were paid towards the part performance. The agreement was executed on 08.03.2013. Despite of repeated requests, the sale-deed was not executed by defendant No.1. After payment of the said amount the defendant No.1 got released the mortgaged property from the HDFC Bank. The agreement was executed on 08.03.2013. Despite of repeated requests, the sale-deed was not executed by defendant No.1. After payment of the said amount the defendant No.1 got released the mortgaged property from the HDFC Bank. After releasing the property from mortgage, defendant No.1 obtained the original documents from the Bank and an application for transfer of the property in favour of the plaintiffs was moved before the Corporation on 28.02.2013 and in the said application, the defendant No.1 submitted his affidavit to the effect that he has entered into an agreement to sale the property in favour of the plaintiffs for a consideration of Rs.45 lakhs. The plaintiffs vide cheque No. 488598 dated 28.06.2013 has paid an amount of Rs.3.99,465/-towards the transfer charge to Municipal Corporation, Bhilai. After completion of all the formalities, an NOC was issued by the Corporation on 19.08.2013 and thereafter, the agreement dated 08.03.2013 was executed for sale of the property in question. An amount of Rs.35,70,000/- has already been paid out of Rs.45 lakhs, but despite repeated requests, defendant No.1 did not execute the sale-deed, therefore the notice was served on the defendant No.1 on 22.05.2013 and in response to the said notice, the defendant No.1 has admitted the payment of Rs.35,70,000/- and also admitted the total amount of consideration i.e. Rs.45 lakhs. In the said reply dated 22.10.2013 (Ex. D/3), the defendant No.1 with malafide intention alleged that the total amount of consideration was Rs.72 lakhs and refused to execute the sale-deed. Therefore, the plaintiffs filed the civil suit for grant of decree of Specific Performance of Contract. Respondent No.1/defendant filed his written statement and denied all the averments made in the plaint. The defendant though admitted the signature and execution of the agreement, but denied the contents of the agreement and it was alleged that though an amount of Rs.45 lakhs has been shown in the written agreement but it was decided between the parties that the amount of consideration would be Rs.72 lakhs and the plaintiffs were required to pay the balance amount of consideration to the tune of Rs.36,30,000/-. It was also stated that just to save taxes, an amount of Rs.45 lakhs have been shown in the written agreement but plaintiffs were not ready and willing to perform their part of the contract and therefore he has terminated the contract. It was also stated that just to save taxes, an amount of Rs.45 lakhs have been shown in the written agreement but plaintiffs were not ready and willing to perform their part of the contract and therefore he has terminated the contract. It was alleged that he is ready to refund the amount paid by the plaintiffs with interest. 3. Learned trial Court after appreciating the oral and documentary evidence vide impugned judgment and decree dated 30.04.2018 dismissed the suit preferred by the plaintiffs. Hence, this appeal has been filed by the appellant. 4. Learned counsel for the appellant submits that the judgment and decree passed by the learned trial Court is illegal, erroneous and contrary to law and facts and circumstances of the case. The learned trial Court while passing the impugned judgment and decree failed to appreciate the oral and documentary evidence on record in its correct prospective, which has resulted the erroneous findings and consequent judgment. The learned trial Court while passing the impugned judgment ought to have appreciated the document (Ex. D/2) as well as the application filed by the defendant No.1 before the Commissioner for transfer of the property and the amount paid by the plaintiffs as charges towards transfer. The learned trial Court failed to appreciate that the defendant No.1 has not denied the fact of execution of an agreement for sale of the property and the amount paid by the plaintiffs to the tune of Rs.35,7000/-. He further submits that the learned trial Court while passing the impugned judgment and decree, failed to appreciate that the contents of the agreement are binding on the parties and the oral contract will not prevail over the written contract unless and until there are evidence available on record to that effect. The Court failed to appreciate Section 16(e) of the Specific Relief Act in its correct prospective, which has resulted the erroneous findings and consequent judgment. Learned trial Court grossly erred in recording the findings in favour of the defendant No.1 on the basis of a letter dated 19.02.2013 (Ex. D/1) without appreciating the contents of the said letter and admissibility of the said letter in the eyes of law. The learned trial Court ought to have appreciated that the plaintiffs have denied the execution of the said letter and the contents thereof. D/1) without appreciating the contents of the said letter and admissibility of the said letter in the eyes of law. The learned trial Court ought to have appreciated that the plaintiffs have denied the execution of the said letter and the contents thereof. In fact the said letter was not confronted to the plaintiffs or their witnesses. The defendant No.1 obtained the entire amount of part performance and got released the mortgaged property and now with malafide intention has denied to execute the sale-deed and denied the execution of the agreement. The plaintiffs proved readiness and willingness by oral and documentary evidence but the defendant has failed to prove his defence. It is further submitted that the learned trial Court grossly erred in dismissing the suit and failed to appreciate Section 20 of the Specific Relief Act. Learned trial Court grossly erred in holding that on 14.09.2012 the oral agreement was executed for sale of the property in question for a consideration of Rs.72 lakhs. It is well settled that the oral agreement cannot prevail over the written agreement and if it would be accepted than it would be against the public policy. Therefore, the impugned judgment and decree are liable to be set aside. Reliance has been placed on this Court’s judgment dated 25.07.2023 passed in the matter of Mohammad Asraf Vs. Smt. Rubina Bano in FA No. 85 of 2018. 5. Learned counsel appearing for respondent No. 1 supports the impugned judgment and decree and submits that the learned trial Court after minutely appreciating the oral and documentary evidence, rightly dismissed the suit filed by the plaintiff. Therefore, the impugned judgment and decree are well merited and do not call for any interference by this Court. In support of his argument, he has placed reliance on the judgment of Hon’ble Supreme Court in the matter of J. Samuel and others Vs. Gattu Mahesh and others; (2012) AIR (SC) Civil 811 and this Court’s judgments dated 21.06.2019 passed in the matter of Shiris Kumar Gupta Vs. Keshav Prasad Sinha in FA No. 169 of 2014 and 09.04.2019 passed in the matter of Sheetal Ghosh Vs. Ganesh Chand Jain in FA No. 97/2013. 6. We have heard learned counsel appearing for the parties and perused the record carefully. 7. Keshav Prasad Sinha in FA No. 169 of 2014 and 09.04.2019 passed in the matter of Sheetal Ghosh Vs. Ganesh Chand Jain in FA No. 97/2013. 6. We have heard learned counsel appearing for the parties and perused the record carefully. 7. It is evident from the trial Court record that the agreement dated 08.03.2013 was not denied by the respondent No. 1/defendant and also receiving of amount of Rs. 35,70,000/- was admitted by him. On the basis of pleadings made by the parties, learned trial Court framed the following issues:- 8. Learned trial Court after appreciating the oral and documentary evidence found that the plaintiff has failed to prove issue No.1 in his favour and respondent/defendant proved this fact that sale consideration was of Rs. 72 lacs and, therefore dismissed the suit of the plaintiff. 9. It is clear from the pleadings and document that the agreement dated 08.03.2013 (Ex.P/1) was executed between Jayshankar Sahu (defendant No.1-seller) and Priyabratta Choudhary, Deobratt Choudhary and Ombrat Choudhary (plaintiffs/appellants-purchaser). As per the said agreement, the sale consideration was of Rs. 45 lakhs. 10. Defendant admitted this fact that the property was mortgaged with HDFC Bank and plaintiffs paid him the amount to release the said property. He also admitted that he received total amount of Rs. 35,70,000/- from the plaintiff, however he filed letter (Ex.D/1) which was written by father of the plaintiff i.e. Kheermohan Choudhary. As per the defendant, total amount of property settled between the parties was of Rs. 72 lakhs and for tax purposes, it was shown that the agreement settled between the parties for Rs. 45 lakhs only. 11. Author of the letter (Ex.D/1), Kheermohan Choudhay was examined by the plaintiff as P.W.-2 and in para 22 of his cross-examination he stated that, ^^;g lgh gS fd izMh&01 dk fy[kk gqvk i= esjk gSA ;g lgh gS fd izMh&01 ds i= es fy[kh gqbZ bckjr lgh gSA ;g xyr gS fd fnuakd 14-09-12 dks 72]00]000@& es lkSnk gqvk Fkk] ijarq ;g lgh gS fd fnaukd 05@10@2012 rd eSus :Ik;s fn;k FkkA^^ 12. Learned trial Court after appreciating the oral and documentary evidence found that the original sale consideration was of Rs. Learned trial Court after appreciating the oral and documentary evidence found that the original sale consideration was of Rs. 72 lakhs and held that the plaintiff is not entitled for decree of Specific Performance of Contract and dismissed the suit of the plaintiff, however, it is clear that the defendant admitted that he received a sum of Rs.35,70,000/- and also that the said amount was used for releasing the mortgaged property from Bank. 13. Vide judgment dated 25.07.2023 in the matter of Mohammad Asraf Vs. Smt. Rubina Bano passed in FA No. 85 of 2018, this Court observed and held in paras 20, 21 and 22 as under:- “(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. 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. 15 "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 to 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 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. 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 post-suit the amount is still with the defendant.” 14. In light of above, in this case also, learned trial Court dismissed the suit for grant of decree of Specific Performance of Contract. However, it is clear that an amount of Rs. 35,70,000/- was retained by the respondent No.1/defendant. It is an admitted position that the payment was made only towards part payment of consideration and defendant used this money for releasing his property from the Bank. Therefore, the plaintiff has 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 the record fortifies the said logic. As the Hon’ble 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 post-suit the amount is still with the defendant. 15. In view of law laid down by Hon’ble Apex Court in the case of Satish Batra (supra) and India Council (supra), we deem it appropriate to direct respondent No.1/defendant to return Rs.35,70,000/- to the plaintiffs/appellants @ 6% from the date of filing of the suit and till its realisation. 16. 15. In view of law laid down by Hon’ble Apex Court in the case of Satish Batra (supra) and India Council (supra), we deem it appropriate to direct respondent No.1/defendant to return Rs.35,70,000/- to the plaintiffs/appellants @ 6% from the date of filing of the suit and till its realisation. 16. With the aforesaid observation, the appeal is partly allowed. Decree be drawn accordingly. Parties to bear their own cost.