1 2025:CGHC:3148-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Judgment Reserved on : 09/12/2024 Judgment Delivered on : 17/01/2025 FA No. 69 of 2022  Praveen Kumar Mishra, son of Shri Sharawan Kumar Mishra, aged about 56 years, resident of Godpara, Tehsil and District Bilaspur (C.G.) . ---- Appellant/ Plaintiff Versus 1. Seetaram Rajak, son of Late Shri Raghuvar Prasad Rajak, aged about 44 years. 2. Laxmi Rajak, son of Late Raghuvar Prasad Rajak, aged about 41 years. Both are resident of village Mangla, Tehsil and District Bilaspur (C.G.) ---- Respondent/ Defendants For Appellant : Mr. Vineet Kumar Pandey, Advocates. For Respondent : Mr. Ratnesh Kumar Agrawal, Advocate. Hon'ble Smt Justice Rajani Dubey & Hon’ble Shri Justice Bibhu Datta Guru C A V Judgment Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.01.17 16:09:50 +0530 2 Per Rajani Dubey, J 1. The plaintiff/appellant has preferred this first appeal being aggrieved by the judgment and decree dated 13.01.2022 passed by IV Additional District Judge, Bilaspur (C.G.), in Civil Suit No.883-A/2013, whereby the suit filed by the plaintiff/appellant herein for specific performance of contract and permanent injunction was dismissed. 2. Brief facts of the case, as per the plaint averments, are that land in Mauza Mangala P.H.No. 21, Revenue Division Bilaspur, Tehsil and District Bilaspur (CG) bearing Khasra Nos. 1339/1, 1348/1, 366/1, 366/2, 366/3, 702/4, 742/1, (742/2), 742/3, 742/4, 750/1, 790/1, 790/2, 813/1, 815/3, 870/1, 881/3, 1016/1, 1105/1, 1207/1. (1208/1), 1213/2, 1303, 1305, 1317/6, 1320, 1321, 1323, 1325/2, 1338/1, 1339/1, (1348/1), 1347/2, 1351/2, (742/2), (1208/1), (1348/1) whose area is 0.098, 0.138, 0.134, 0.134, 0.024, 0.012, 0.028, 0.012, 0.012, 0.024, 0.024, 0.032, 0.024, 0.004, 0.004, 0.144, 0.004, 0.024, 0.028, 0.022, 0.004, 0.243, 0.494, 0.190, 0.186, 0.202, 0.081, 0.429, 0.368, 0.182, 0.098, 0.065, 0.162 respectively, total Khasra No. 32 and total area 3.532 hectares is included in all revenue records in the name of Smt. Mankunwar Bai, Smt. Panchmati Bai, Sitaram, Lakshmi, Shiromani, Ahilya, Kamal Kumar, Gayatri, Preeti Ishwar and Narayan Rajak. It was pleaded in the plaint that in the partition under proposal No. 3 2 on transfer No. 186 dated 23/08/2012, the defendants acquired jointly and severally the land bearing Khasra No. 1305, 1259/12, 1326/2, 1325/4, 1321, 1347/1, 1347/2, 750/3, 1300/4, 870/4, 702/5, 704/3, 1322 and 870/6 measuring 1.22, 0.04, 0.22, 0.30, 0.20, 0.35, 0.16, 0.03, 0.20, 0.10, 0.03, 0.05 0.37 and 0.015 respectively, total Khasra No. 14 and total area 3.0275 acres of land (hereinafter referred to as the ‘suit land’). The defendants told the plaintiff that the land mentioned in clause 2 is ancestral land jointly owned and possessed, on which mutual partition has been done among all the members and all the shareholders are farmers possessed their respective shares of land, and defendants were also in joint possession of Khasra No. 1305 and 1322, which area is 1.22 and 0.37 acres of land respectively, intend to sell, and an agreement dated 11/05/2010 was executed receiving earnest money of Rs. 8,00,000/- (eight lakh) for the sale of the land from the plaintiff @ of Rs. 30,000/- (thirty thousand) per decimal. Again a proposal was given to the plaintiff that Shiromani, Ahilya Bai and Kamal Kumar, among their co- shared holders, who have received Khasra No. 1347/1 and 1347/2 area of 0.35 and 0.16 acres respectively as their share, and that too is completely free from encumbrance and dispute, also want to sell the land, therefore, the defendants themselves should obtain general power of 4 attorney from them of their share also for Rs. 30,000/- per decimal under the conditions of the agreement dated 11.05.2010 and the sale deed would be executed in favour of the plaintiff. It was also pleaded in the plaint that some time after the defendants had received the sum of Rs. 8,00,000/- (eight lakhs) mentioned in the above agreement from the plaintiff, the plaintiff was informed that a general power of attorney had been executed by Shiromani Bai, Ahilya Bai and Kamal Kumar in favour of defendant no. 1 for selling their respective share of land. And on the basis of the said general power of attorney, the defendants again made a contractual confirmation on the back of the agreement dated 27/01/2011 by extending the date of the agreement dated 11/05/2010 and the land bearing Kh. No. 1347/1a nd 1347/2 admeasuring 0.35 and 0.16 acre belonging to Shiromani Bai, Ahilya Bai and Kamal Kumar in Khasra No. were also sold by the defendants in the capacity of general attorney in favour of the plaintiff @ Rs. 30,000/- (thirty thousand rupees) per decimal and an advance amount of Rs. 3,00,000/- (three lakhs) was received from the plaintiff for the consideration of the land to be given to Shiromani Bai, Ahilya Bai and Kamal Kumar and the plaintiff was assured for execution of sale deed of the entire land mentioned in the agreement and confirmation after preparing the documents for sale. It was also pleaded that 5 that even after passing of considerable time, the defendants did not show any interest in executing the sale deed, the plaintiff tried to contact the defendants, but the defendants started procrastinating in registering the sale by making false statements, on which the plaintiff tried to get the actual information about the entire land of the defendants, and then the plaintiff came to know that the defendants had got the joint lands of the defendants partitioned from the Gram Panchayat Mangala as per the proposal of the Panchayat on 23.08.2012, but in the partition of the said land, the names of Shiromani Bai and Ahilya Bai have been deleted and their shares have been included in his share and his own share has been combined with other heirs of late Raghuvar and only independent account of defendant No.2 has been created. Further, the plaintiff felt that he has been cheated by the defendants through mutual collusion, then the plaintiff tried to discuss with the defendants several times, but when they did not meet the plaintiff and were not available, the plaintiff sent a registered notice dated to the defendants through his counsel, in which the defendants were legally requested to prepare the sale documents within 15 days from the receipt of the notice and to execute the sale deed of the lands in favour of the plaintiff, and after the desired period, information regarding receipt of the said legal notice dated 06/02/2013 received by the plaintiff but till 6 date the defendants did not reply the notice. It was also pleaded that the plaintiff came to know that the defendants are continuously trying to sell the suit land to someone else by mutual agreement. Therefore, with a view to protect the earnest money and and avoid unnecessary litigation, the plaintiff requested the Sub-Divisional Officer, Bilaspur on 07.03.2013 not to issue the required documents for the sale of the suit land, and in the same sequence, an objection was submitted before the District Registrar, Registration Office, Bilaspur on 15/03/2013 on the sale transaction of the suit land, because the plaintiff reserves the right to purchase the said suit land from the defendants through a proper sale deed. Therefore, the suit was filed for specific performance of contract. 3. The defendant Nos. 01 and 02 have filed their separate written denying the plaint averments. They have stated that instead of Khasra No. 1016/1 measuring 0.024 hectare, Khasra No. 1096/1 measuring 0.024 hectare is mentioned along with other lands. According to the mutation, the plaintiff and their mother Panchmati Bai, Kamal Prasad and sisters Ahilya, Shiromani, Gayatri and Preeti's Khasra No. 1305, 1259/12, 1326/2, 1325/4, 1321, 1347/1, 1347/2, 750/3, 1300/4, 870/4, 702/5, 704/3, 1322 area 0.150, 0.016, 0.089, 0.121, 0.081, 0.142, 0.065, 0.012, 0.079, 0.047, 0.047, 0.012, 0.020, 0.150, 0.494, respectively total Khasra 7 number 13 and the total area 1.328 acre land is situated in Village Mangla. The defendants have denied that in the said land, Khasra No. 870/6 measuring 0.015 hectare is also included and the plaintiff has obtained possession of the said shared land jointly and separately without considering the actual fact. The alleged agreement has not been executed by the defendants. The plaintiff, with an intention to harass the defendants and to obtain earn profit by preparing forged documents. It was averred that defendants A. 1 and A. 2 have also stated in their reply that the defendants have not executed any agreement for sale of 0.35 and 0.16 acres of land in Khasra No. 1347/1 and 1347/2 respectively by receiving Rs. 3,00,000/- as advance on 27.01.2011. The ancestral land was mutated and transferred between defendant No. 1 Sitaram, defendant No.2 Lakshmi Prasad and Kamal Prasad, Ahilya, Shiromani, Gayatri, Preeti, Panchmati, Narayan, Mankunwar and Ishwar on 23.08.2012 in which the shares of defendant Sitaram, Lakshmi Prasad, sister Ahilya, Shiromani, Gayatri, Preeti and mother Panchmati are included the second account is in the name of Narayan, Mankunwar and Ishwar. On 02.11.2012, account No. 1322 and 870/6 was transferred in the name of defendant No.02 on the basis of mutual partition through mutation No.10. Upon filing an application for 22 point by defendant No.2 with regard to Kh. 8 No.1322 area 0.37 land, the plaintiff raised objection which was rejected and order was passed for issuing 22 points. It was denied by the defendant Nos. 1 and 2 that the partition made by the plaintiff is bonafide. The suit is tainted due to non-coordination of the parties. Therefore, the plaintiff's suit is liable to be dismissed. The defendant No. 2 has specifically stated in his reply that the defendant has neither signed in alleged dated 11.05.2010 nor has he executed any agreement on 27.01.2011 under the conditions of agreement dated 11.05.2010 by obtaining general power of attorney and nor has he received any earnest money. The plaintiff has said in his suit that the contract is for Rs. 63,00,000/- but the plaintiff has neither done the correct valuation nor paid the advalorem court fee and the agreement presented by the plaintiff is forged and fabricated. Thus, the suit is liable to be dismissed. 4. The learned trial Court, after appreciating the oral and documentary evidence, dismissed the suit of the plaintiff holding that the plaintiff has failed to prove his case on the basis of preponderance of probabilities. Hence, this first appeal filed by the plaintiff. 5. Learned counsel for the plaintiff/appellant submits that the impugned judgment and decree passed by the learned trial Court is contrary to the fact and law, thus it is liable to be set aside. The learned trial Court while recording the finding 9 with regard to issue No. 6 is itself contrary to the ordered passed by the learned trial Court vide its order dated 27.09.2017, whereby the learned trial Court had rejected the application under Order 1 Rule 9 & 10 of C.P.C. Therefore, the finding of issue No. 6 is liable to be set aside. Learned counsel further submits that the learned trial Court has given the finding with regard to the readiness and willingness against the appellant/plaintiff, which is also not justified particularly the fact that the defendants themselves were not ready and willing to be execute the part performance of the contract and denied the execution of agreement to sale whereas, learned trial Court itself recorded the finding in Issue Nos. 1, 2 & 4 holding that the agreement to sale (Ex.P/1) has been duly executed between the parties and the earnest money was received by the defendants. According to the agreement to sale (Ex.P/1), no specific time and date has been mentioned for execution of the sale deed but in Ex.P/1, it has been mentioned that as soon as the partition order with regard to the land in holding between the co- sharer, thereafter demarcation of the land will be done which is under the agreement to sale and thereafter, the sale deed will be executed in the favour of plaintiff, but the defendants had not informed the plaintiff with regard to the order of partition dated 02.11.2012 and as soon as the plaintiff came to the 10 fact of partition, he made an legal notice to the defendants on 04.02.2013 (Ex.P/7) for their part performance stating that he is ready and willing to execute his part performance and within 15 days the defendants shall also perform their part performance. This fact and evidence shows at the plaintiff was always ready and willingness for his part performance as per the agreement to sale but the defendants were trying to scape to part performance their part. Learned counsel also submits that the learned trial Court has not considered the bad intention of the defendants which is clear from the evidence and fact that after receiving the earnest money they tried to cheat the plaintiff categorically denying the execution of agreement to sale and signature upon the said agreement. The learned trial Court without any cogent reason recorded the finding of the Issue No. 6, which is against its own previous order dated 27.09.2017 whereby, the learned trial Court had given his categorical finding that the name of the co-sharer which is mentioned in the revenue record are not the necessary party in the present suit while dismissing the application under Order 1 Rule 9 & 10 of C.P.C. Learned counsel also submits that during the pendency of the suit, the learned trial Court itself observed vide order dated 18.08.2021 vide deciding the I.A. No. 1/21 that the defendants had not come with the clean hand before the Court which shows the 11 conduct of the defendants, therefore, only on this ground the suit of the plaintiff may be allowed. The judgment and decree which is passed against the plaintiff is perverse contrary to the fact and evidence pleaded by the parties, therefore, it is liable to be set aside. Learned counsel also submits that the plaintiff is still ready and willing to perform his part of contract as per the agreement, if the sale deed is executed in the favour of appellant. 6. Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of A. Kanthamani V. Nasreen Ahmed reported in (2017) 4 SCC 654, Bhavyanath represented by Power of Attorney Holder V. K.V. Balan (Dead) Though Legal Representatives reported in (2020) 11 SCC 790, and Shingara Singh V. Daljit Singh and Another reported in 2024 SCC OnLine SC 2823. 7. On the other hand, learned counsel for defendants/respondents supporting the impugned judgment and decree submits that the learned trial Court having minutely appreciated oral and documentary evidence rightly dismissed the suit of plaintiff/appellant and no interference is required by this Court. The learned trial Court has rightly recorded its finding that the plaintiff has failed to prove his readiness and willingness to perform his part of contract. As such, this appeal being without any merit is liable to be dismissed. 12 8. Reliance has been placed on the judgment dated 25.08.2017 passed in F.A. No.82/2013 by co-ordinate Bench of this Court in the matter of Sanjay Maheshwari V. Punaram Sahu & Anr. [Neutral Citation No. 2017:CGHC:15537-DB] and judgment dated 21.06.2019 passed in F.A. No.169/2014 in the matter of Shiris Kumar Gupta Vs. Keshav Prasad Sinha & Ors. [Neutral Citation No.2019:CGHC:16933-DB]. 9. We have heard learned counsel for the parties and perused the material available on record. 10. The learned trial Court, on the basis of pleading of both the parties, framed 09 issues, out of which important issues are 1, 2 and 3. For ready reference, the Issue Nos. 1, 2 and 3 are reproduced herein as under :- dz- okniz’Uk fu"d"kZ 1- D;k izfroknhx.k }kjk ekStk i-g-u- 21] jk-fu-e-] rglhy ,oa ftyk fcykliqj fLFkr Hkwfe [kljk uacj 1305 rFkk 1322 jdck dze’k% 1.22 ,oa 0- 37 ,dM+ Hkwfe dks fodz; djus gsrq oknh ls fnukad 11-05-2010 dks 8]00]000@& # ¼vkB yk[k #½ vfxze jkf’k izkIr dj bdjkjukek fu"ikfnr fd;k x;k Fkk \ Þgkaß Þdf.Mdk & 28 ds vuqlkj fu"df"kZr Aß 2- D;k izfroknhx.k }kjk ekStk eaxyk i-g- u- 21] jk-fu-e-] rglhy ,oa ftyk fcykliqj fLFkr Hkwfe [kljk uacj 1347@1 rFkk 1347@2 jdck dze’k% 0-37 ,oa 0-16 ,dM+ Hkwfe ds fodz; ds laca/k esa oknh ls fnukad 27-01-2011 dks crkSj 3]00]000@& # ¼rhu yk[k #½ vfxze jkf’k izkIr dj bdjkjukek fu"ikfnr fd;k x;k Fkk \ Þgkaß Þdf.Mdk & 28 ds vuqlkj fu"df"kZr A ß 13 3- D;k izfroknhx.k mDr bdjkjukek ds vk/kkj ij fodz; i= fu"ikfnr djokus ds fy, lnSo rS;kj o rRij jgk gS \ Þughaß 11. The learned trial Court, after appreciation of oral and documentary evidence, recorded its finding that the plaintiff and defendants had executed an agreement dated 11.05.2010 and 27.01.2011 & defendants received Rs.8,00,000/- and Rs.3,00,000/- as earnest money respectively, but in issue No.3, the learned trial Court finds that the plaintiff has failed to prove this fact that he was ready and willing to perform his part of contract. 12. To sum up this issue, for ready reference, condition Nos.4 and 5 of the agreement dated 11.05.2010 (Ex.P/1) are reproduced herein as under :- “ 4. यह कि जो कि ं डि ा 1 में उ्ቤेखित भूकिम ो प्ቌार ्ቅमां 1 े () एवं () ्ቛारा ाता किवभाजन ी ायवाही ी जा रही है तथा उ्ሹ ाता किवभाजन े प्ቐात इ रारिरत सरा नंबर 1305, 1322 जिजसा रबा 1.22 एवं 0.37 एड़ भूकिम ो प्ቌार ्ቅमां 1 () एवं () े ्ቛारा राजस्व किनरी्ቌ किबलासपुर से सीमांन रार तथा सीमांन ी सत्याकिपत ्ቚडितखिलकिप ्ቚा्቎ र पंजीयन में लगने वाले आवश्य दस्तावेज बी-1, सरा, ऋण पुቜኌस्ता, फाम 22 किबन्दु तैयार रार प्ቌार ्ቅमां 2 ो खिलखित सूचना देगा तथा सूचना ्ቚाकि्቎ े 15 किदवस े भीतर प्ቌार ्ቅमां 2 े ्ቛारा इरारिरत भूकिम ा पंजीयन अपने प्ቌ में किनष्पादन रा खिलया जायेगा। 5. यह कि इरारिरत भूकिम किसी भी व्यकि्ሹ, संस्था आकिद से रहन, गहन, बय किव्ቅय, दान-बक्शीश एवं अनुबंडिAत नहीं है 14 अतः पूण रूप से भारमु्ሹ, एवं ऋण मु्ሹ है यकिद इरारिरत भूकिम से सम्बंडिAत किसी भी ्ቚार ी उजर आपखिF अथवा दावा उत्प्ቐ होने ी ቜኌस्थडित में प्ቌार ्ቅमां 1 े () एवं () स्वयं जवाबदार होगें तथा इस इरारनामा में उ्ቤेखित शतोZ ा पालन किसी भी प्ቌार ्ቛारा न किये जाने ी ቜኌस्थत में व्यथिथत प्ቌार स्ቌम न्यायालय से अपने वाद ा किनरारण राये जाने हेतु स्वतं्ቔ होगा। अस्तु यह इरारनामा उभय प्ቌार पढ़र, सुनर, समझर सही होना जानर एवं मानर स्वस्थ डिचF से किबना किसी दबाव ्ቚलोभन े आज किदनां 11.05.2010 ो स्थानं किबलासपुर में सम्ቌ दो गवाहों े अपना अपना हस्ता्ቌर र किनष्पादन किये। सनद रहे व्ሹ जरूरत पर ाम आवे। किदनां 11.05‐2010” 13. Further, according to agreement dated 27.01.2011 (Ex.P/2), defendants again received Rs.3,00,000/- and executed an agreement to sale (Ex.P/2) the suit property. For ready reference, contents of agreements are reproduced herein as under :- “vkt fnukad 27-01-2011 dks Lo- j?kqoj ds vU; okfjlx.k vfgY;k ckbZ mez 27 ,oa f’kjkse.kh mez yxHkx 24 o”kZ }kjk iathdz`e eq[R;kjukek vke fnukad 10-12-2010 dks lhrkjke jtd i{k dza 1 ds ¼d½ ds uke esa fu”iknu fd;k gS rFkk dey dqekj jtd }kjk iathd`r eq[R;kj ukek vkt fnukad 26-11-2010 dks lhrkjke jtd i{k dzekad 1 ds ¼d½ uke ij fu”ikfnr fd;k gS ftls bl bdjkjukek esa mYysf[kr ‘krksZ dks vk/kkj ekudj i{k dza- 1 ¼d½ ds }kjk i{k dza- 1 ds ¼[k½ ls lger gksdj i{k dza- 2 ls [ka- ua- 1347@1 ,oa 1347@2 ftldk jdck 0-35 ,oa 0-16 ,dM Hkwfe dks fodz; fd;s tkus 15 gsrq 30]000@& #- ¼rhl gtkj #i;s½ izfr fMlfey ds vk/kkfjr 3]00]000@&#- ¼rhu yk[k #i;s½ crkSj c;kuk jkf’k le{k nks xokgksa ds ikuk Lohdkj djrk gSaA ” 14. Plaintiff Praveen Kumar (PW/1) has stated that as per the agreement, the defendants had to inform the plaintiff after partition of their respective land and when the defendants did not give information in this regard then he sent notice dated 04.02.2013 (Ex.P/7) and filed the registration slip of postal department vide (Ex.P/8) & when he did not receive the acknowledgment receipt of the notice (Ex.P/7), he gave an application (Ex.P/9) in postal department on 15.03.2013 and the postal department furnished information vide Ex.P/10. The plaintiff has admitted in para 18 of his cross- examination that suit land was divided/partitioned between defendant Nos. 1, 2 and other holders, and in respect of this he has not filed any documents in the case. The plaintiff himself stated that he has filed proposal of Gram Panchayat, Mangla. 15. The defendants have denied the execution of sale deed but it is clear that the learned trial Court decided Issue Nos.1 and 2 in favour of plaintiff and respondent/defendants did not file any cross appeal. Thus, it is apparent that the plaintiff has proved this fact that as per agreement to sale (Ex.P/1 and P/2), defendants received Rs.8,00,000/- and Rs.3,00,000/- as earnest money but as per the conditions of 16 Ex.P/1, no partition was filed by the plaintiff and the learned trial Court also finds in Issue No.6 that there are other joint owners of disputed property and they have not executed agreement (Ex.P/1 and P/2). The learned trial Court decided this issue against the plaintiff but it is clear from order sheet dated 27.09.2017 that defendants filed an application under Order 1 Rule 9 and 10 CPC for impleading all the land owners as necessary party but the learned trial Court rejected the application of defendants by order dated 27.09.2017. 16. It is well settled principle of law that in suit for specific performance, the plaintiff has to prove his/her readiness and willingness. While dealing with the issue of readiness and willingness in performance of contract, this Court in Sanjay Maheshwari (supra), held in paras 13, 18, 19 and 28 as under :- “13. From the documents, it would be apparent that the plaintiff never requested the defendants in writing showing his willingness to perform his part of contract nor tendered the amount at any point of time within 11 months. The plaintiff did not do so even when the defendants served him a legal notice and requested for information about the date, time & place for execution of the sale deed by paying the balance sale consideration by the plaintiff. Newspaper publication (Ex.P/7) by way of proclamation before filing of a suit also fails to show his 17 readiness and willingness to perform the contract. As a matter of fact, this document is a notice to members of public inviting objections to the sale agreement between the parties. It no where directs the defendants to accept the balance sale consideration and execute the sale deed. 14. xxxx 15. xxxx 16. xxxx 17. xxxx 18. The Supreme Court in N.P. Thirugnanam (Dead) by LRs V. Dr. R. Jagan Mohan Rao and Others [1995 5 SCC 115], has affirmed the judgment passed by the High Court observing that the very contract was speculative in nature and entered into by the plaintiff who has been dabbling in real estate transactions without the means to purchase a substantial immovable property like the property. 19. In other words, when the plaintiff is a broker or in real estate business and has failed to tender the balance sale consideration, as he was not finding potential buyers in the market, the decree for specific performance is not to be granted in favour of such plaintiff. 20. The evidence available on record, as discussed above, would suggest that the plaintiff has never approached the defendant for execution of the sale deed by tendering the balance sale consideration either before the expiry of stipulated time or after the said period 18 was over when he received the notice by the defendant asking him to inform the date, time and place for execution of the sale deed. The Supreme Court in Padmakumari and Others v. Dasayyan and Others [2015 8 SCC 695], has held thus in paras 19 & 20 : 19. The said legal contention urged on behalf of defendant Nos. 12 to 15 has been strongly rebutted by learned counsel on behalf of the plaintiff contending that the question of payment of balance consideration amount of Rs.63,000/- within nine months would have arisen after the terms and conditions of the contract agreed upon by defendant Nos. 1 to 11 if they had measured the suit schedule property. They have not discharged their part of the contract stipulated in the agreement to sell, therefore, it is urged by him that time was not the essence of the contract as defendant Nos. 1 to 11 themselves have failed to perform their part of the agreement. 20. The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff performed his part of the contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendant Nos. 1 to 11 which is very important legal aspect which was required to be considered by the Courts below at the time of determining rights of the parties and passing the impugned judgment. The Courts below have ignored this important aspect of the matter while answering the contentious Issue Nos. 1 and 2 in favour of the 19 plaintiff and granted decree of specific performance in respect of the suit schedule property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and the evidence on record. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15 after setting aside the concurrent finding of fact recorded by the High court.” 17. In Shris Kumar (supra), this Court held in para 39, 43 and 44 as under :- “39. The other attending circumstances and conduct of the appellant can be inferred from perusal of Ex.P-1, which is an agreement to sale shows that in paragraph-2, it has been mentioned that the purchaser will get sale deed registered in his name or in name of any other person on 30/01/2012. The ravi ranjan sinha contents of agreement itself shows that appellant/plaintiff is not a real purchaser of disputed property or he has not entered into an agreement to purchase the property solely for himself. It rather shows that he is engaged in sale and purchase of properties. 40. xxxx 41. xxxx 42. xxxx 43. Taking into consideration the aforementioned judgment, this Court in the matter of Sanjay maheshwari (supra) held as under :- “19. In other words, when the plaintiff is a broker or in real estate business and has 20 failed to tender the balance sale consideration, as he was not finding potential buyers in the market, the decree for specific performance is not to be granted in favour of such plaintiff.” 44. From perusal of the overall facts and evidence available on record particularly evidence of (PW-2) who is an Advocate (Notary) and examined by plaintiff himself, clearly stated that the plaintiff is doing the business of purchase and sale of land. Perusal of contents of Ex.P-1 I.e agreement to sale also show that either plaintiff will register the sale deed of property in his own name or in the name of other persons. From the above one thing is apparent that the plaintiff did not enter into an agreement for purchase of the lands in his own name exclusively, but is in business of real estate.” 18. In the light of above, in this case also, it is clear from agreements (Ex.P/1 and Ex.P/2), which were executed on 11.05.2010 and 27.01.2011 respectively, and plaintiff gave notice (Ex.P/7) to defendants on 04.02.2013 and as per intimation (Ex.P/10) provided to advocate, the notice was received by defendants on 06.02.2013. Before 04.02.2013, the plaintiff did not file any document or reliable evidence, which could prove that he was willing and ready to perform his part of contract. The learned trial Court also finds that the plaintiff sent first notice on 04.02.2013 after 02 years of agreement and plaintiff also did not file any evidence which proves that during this period he was having sufficient 21 amount in his account and the learned trial Court rightly decided the Issue No.3 and 5 against the plaintiff. 19. It is also clear from the record of the learned trial Court that the plaintiff filed the suit on 22.03.2013, which was registered after depositing Court fee on 01.08.2013. So, the learned trial Court rightly decided the Issue Nos. 3 and 5 against the plaintiff and in favour of defendants. 20. Now coming to the question of return of earnest money, it is clear from the finding of the learned trial Court that the defendants and other co-owners have received earnest money of Rs.8,00,000/- from the plaintiff knowing this fact that they and other co-owners are not the joint owner of the suit property. 21. While dealing with the issue of recovery of money in a specific performance of contract, this Court in the matter of Priyabratta Choudhary & Ors. V. Jayshankar Sahu [Neutral Citation No. 2024:CGHC:42295-DB ] , held in para 13 as under :- “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 22 '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. 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 23 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 24 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.” 22. Thus, in the light of aforesaid judgment, this Court held the plaintiff to be entitled to receive the earnest money from the defendants. 23. In view of the aforesaid discussion of evidence, this Court is of the considered opinion that the finding recorded by the learned trial Court is based on oral and documentary 25 evidence filed by both the parties. This Court does not find any illegality or perversity in the impugned judgment and decree passed by the learned trial Court. The appeal being without any substance is liable to be and is hereby dismissed. 24. Since this Court held the plaintiff to be entitle to received earnest money, We direct the defendants to return the earnest money of Rs.8,00,000/- to the plaintiff along with interest at the rate 6% per annum. 25. Let a decree be drawn-up accordingly. Sd/- Sd/- (Rajani Dubey) (Bibhu Datta Guru) Judge Judge pekde