1 / 22 CGHC010416042023 2026:CGHC:41638-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 212 of 2023 Dr. Omprakash Makhija S/o Shri Nanakram Makhija Aged About 40 Years S/o Shri Nanakram Makhija, R/o Mitra Vihar Colony, Link Road, Bilaspur, Tehsil And District - Bilaspur, Chhattisgarh. (Plaintiff) ... Appellant (s) versus 1 - Jaspal Sethi S/o Gurudayal Sethi Aged About 61 Years R/o Tikrapara, Bilaspur, Tehsil And District - Bilaspur, Chhattisgarh. 2 - Sunil Bali S/o B.S. Bali Aged About 61 Years R/o Near Torwa Water Tank, Bilaspur, Tehsil And District - Bilaspur, Chhattisgarh. ... Respondent(s) For Appellant :Mr. Sunil Otwani, Senior Advocate with Mr. Shobhit Koshta, Advocate For Respondents :Mr. J.K. Gupta, Advocate For Applicant (Mr. Ashok Tuteja) :Mr. Ratnesh Kumar Agrawal, Advocate D.B. : Hon'ble Shri Justice Parth Prateem Sahu & Ho n'ble Smt. Justice Sushma Sawant Judgment on Board 23/09/2026 Per Parth Prateem Sahu, J. 1. This appeal is directed against the judgment and decree dated 4th November 2023 passed by learned District Judge, Bilaspur, whereby Digitally signed by PRAVEEN KUMAR SINHA Date: 2026.10.03 11:04:25 +0530 2 / 22 Civil Appeal No.A-9/2019 filed by the appellant/plaintiff seeking decree of specific performance of contract against respondents/defendants has been dismissed. 2. Facts relevant for disposal of this appeal are that appellant/plaintiff filed a civil suit seeking decree of specific performance on the pleadings inter alia that on 22.02.2017 defendants entered into an agreement with him for sale of the suit land and house situated in diverted land Khasra No.- 588/17, Lrkj No.-4/6, Plot No.- 322, Area- 2600 sq feet and Khasra No.- 588/7, Lrkj No.- 4/6, Plot No.- 321, area- 1900 sq feet, Total Area- 4500 sq feet for sale consideration amount of Rs 1,80,00,000/- (one crore eighty lakh) out of which an amount of Rs.18 lakh was paid in advance to the defendants on the date of agreement. Execution of the agreement is based on the condition precedent that the defendants are required to regularize the illegal construction over some part of the suit property and remove the transformer and build the boundary wall. However, even after repeated request, defendants did not execute the sale deed. The plaintiff thereafter, send legal notice to defendants through his Advocate on 15/03/2018 requiring the defendant to perform his part of contract within a period of 15 days, which was replied by the defendants on 17/03/2018 stating that that the plaintiff has failed to perform his part of the contract. Thereafter, plaintiff send another legal notice on 27/03/2018 which was not replied by the defendant. On 20/11/2018 defendant sent a letter though his Advocate stating that the agreement has become unenforceable due to non- compliance of the conditions mentioned in agreement and hence refused to execute the sale deed, asked the plaintiff to take back the 3 / 22 advance amount paid at the time of agreement. Thereafter plaintiff, through his Advocate, sent another legal notice dated 07/12/2018 whereby the plaintiff asked the defendants to appear before the registrar office on 20/12/2018 for execution of sale deed but the defendants refused to appear on the said date. Therefore, decree of specific performance of contract be granted directing the defendant to register the sale deed in favour of plaintiff. 3. Defendants filed their written statement denying the averments made by the plaintiff. While admitting the execution of the agreement dated 22.02.2017 and receipt of Rs.18 lakh as advance, the defendants pleaded that the plaintiff failed to perform his part of the agreement by not providing the requisite funds and cooperation for regularisation of the property, clearance of the mortgage and utility dues, removal of the transformer, and completion of other necessary formalities. The defendants further asserted that they were ready and willing to execute the sale deed within the stipulated period, but the plaintiff’s failure to perform his obligations resulted in a delay of approximately two years, during which the market value of the property increased. They denied that they deliberately avoided execution of the sale deed or agreed to sell the property to any other person for a higher consideration. The defendants accordingly claimed compensation /revaluation at the prevailing market rate, denied the plaintiff’s entitlement to specific performance or injunction, and prayed for dismissal of the suit. 4. Learned trial Court on the basis of pleadings made by the parties, framed following main issues for consideration: 4 / 22 “1. Whether the defendants entered into an agreement to sell the disputed property to the plaintiff for Rs. 1 crore 80 lakhs and after receiving advance payment of Rs. 18 lakhs, executed the sale deed on 22/02/2017 ? 2. Whether the balance consideration amount of the disputed property was decided to be paid at the time of registration of sale deed as per the terms of the sale agreement dated 22/02/2017 ? 3. Whether the plaintiff performed his part of contract under sale agreement dated 22/02/2017 ? 4. Whether the defendants failed to perform their part of contract under sale agreement dated 22/02/2017 ? 5. Whether the plaintiff has been willing and ready to purchase the disputed property ? 6. Whether the plaintiff is entitled to obtain a decree for specific performance of the sale agreement dated 22/02/2017 ? 5. Learned trial Court upon consideration and appreciation of the pleadings, oral and documentary evidence adduced by the parties held that in the facts of the case, it is not possible to order specific performance of contract and further considered that in para-8 of evidence, plaintiff had pleaded that in the event the order directing specific performance of contract is not possible then the amount of Rs.18 lakh be returned with interest at the rate of 18%, allowed the suit in part and ordered for return of advance amount of Rs.18 lakh with interest at the rate of 9% per annum from 22.02.2017 to 04.02.2019 5 / 22 and thereafter at the rate of 6% per annum from 04.02.2019 till impugned judgment and decree. 6. Assailing legality, validity and correctness of the impugned judgments and decree, learned counsel for the appellant- plaintiff would argue that learned trial court erred in holding that the appellant was not ready and willing to perform his part of the contract, despite his having pleaded and proved the same and there being no evidence to the contrary. It was contended that the defendants had failed to perform their corresponding obligations under the agreement to sell dated 22.02.2017. It was further submitted that the trial court wrongly treated non-regularization of construction over a portion of the suit property as rendering the agreement unenforceable, particularly when there was no evidence that the defendants had called upon the appellant to pay the regularization charges or that he had refused to do so. Under the agreement, sale deed was to be executed within one month of the defendants fulfilling their obligations; therefore, the appellant could not be faulted for non-execution of the sale deed. Learned counsel accordingly submitted that, upon proof of the agreement and the appellant's readiness and willingness, trial court ought to have granted the relief of specific performance. The findings of the trial court, being contrary to the oral and documentary evidence on record, therefore, are erroneous and liable to be set aside. In support of his submissions, he places reliance upon the judgments of Hon’ble Supreme Court in case of Govindbhai Gordhanbhai Patel & Ors. v. Gulam Abbas Mulla Allibhai Ors. reported in (1977) 3 SCC 179, Laxman Tatyaba Kankate & Anr. Vs. Taramati Harishchandra Dhatrak reported in 6 / 22 (2010) 7 SCC 717 and Delhi Development Authority v. Kenneth Builders & Developers (P) Ltd. & Ors. reported in (2016) 13 SCC 561. He lastly contended that appellant is ready to get the sale deed executed without regularization of unauthorized construction. 7. Per contra, learned counsel for the respondents/defendants would submit that the learned trial Court, upon proper appreciation of the pleadings and oral and documentary evidence, rightly dismissed the suit for specific performance. It was contended that although execution of the agreement to sell dated 22.02.2017 and receipt of Rs.18 lakhs as advance were admitted, the appellant failed to perform his reciprocal obligations under the agreement and was therefore not entitled to seek specific performance. It was further submitted that the proceedings for regularization of the construction, removal of the transformer and other necessary steps were undertaken by the defendants on the assurance that the appellant would provide the requisite funds and fulfill his part of the contract. However, the appellant failed and refused to provide the necessary amount and assistance, including the amount required for redemption of the mortgage over the property. Consequently, the defendants could not complete the formalities necessary for execution of the sale deed. Learned counsel would further contend that the appellant's conduct clearly demonstrated that he was neither ready nor willing to perform his part of the contract. Despite the agreement being executed on 22.02.2017, the appellant took no effective steps for nearly two years and instituted the proceedings only after the value of the property had substantially increased. The subsequent legal notices issued by the appellant could not cure his prior failure to perform his 7 / 22 contractual obligations. It was also submitted that the appellant cannot take advantage of the condition requiring the defendants to complete the regularization proceedings, as such proceedings were being undertaken pursuant to the agreement and required the appellant's financial cooperation. The appellant, having failed to discharge his reciprocal obligations, cannot allege that the defendants alone were in breach of the agreement. The burden lay upon the appellant to establish such readiness and willingness, and mere assertion of readiness could not substitute actual performance of his contractual obligations. Findings of the learned trial Court were based on proper appreciation of the evidence and did not suffer from any perversity or illegality. In support of his submission, he places reliance upon the decision of Hon’ble Supreme Court in case of Jaswinder Kaur Vs. Gurmeet Singh reported in (2017) 12 SCC 810. 8. We have heard learned counsel for the parties and also perused the records of the case. 9. The execution of the agreement to sell dated 22.02.2017 and payment of advance amount of Rs.18,00,000/- by the appellant/plaintiff, to the respondents/defendants are not in dispute. The controversy essentially concerns the performance of the respective obligations of the parties under the said agreement and, in particular, whether the appellant/plaintiff was ready and willing to perform his part of the contract and whether the respondents/defendants had fulfilled the conditions precedent to execution of the sale deed of their part. 8 / 22 10. The appellant/plaintiff, in his examination-in-chief tendered by way of affidavit under Order 18 Rule 4 of the Code of Civil Procedure, stated that he was aware that construction had been raised over an area in excess of the permissible limit and that the same was required to be regularized. He further stated that the expenditure towards regularization was to be borne by him. Plaintiff also stated that the defendants had undertaken to remove the electricity transformer and construct the boundary wall. According to him, he had remained ready and willing to perform his part of the agreement, had arranged the balance sale consideration and registration expenses, and had remained in contact with the defendants. He alleged that the defendants repeatedly sought time and consequently failed to complete the transaction. The plaintiff further stated that, in March 2018, when he came to know that the defendants were proposing to sell the property to third parties for a higher consideration, he approached them and they agreed to execute the sale deed without awaiting regularization by the Municipal Corporation. According to him, despite fixing dates for registration of sale deed, the defendants continued to postpone the transaction. The plaintiff stated that he thereafter issued the legal notice dated 15.03.2018, calling upon the defendants to execute the sale deed within fifteen days. The defendants, in their reply dated 17.03.2018, asserted that the contractual conditions had not been fulfilled and referred to expenses allegedly incurred by them. The plaintiff maintained that the defendants had neither informed him regarding release of the mortgage nor called upon him to deposit the amount required for regularization. 9 / 22 11. In his cross-examination, plaintiff (PW1) admitted that, even prior to execution of the agreement, he was aware that construction had been raised over the excess area and had not been regularized. He further admitted that he had undertaken to bear the expenses of regularization. He denied the suggestion that, after payment of the advance amount, he had failed to provide assistance to the defendants or that no demand had been made upon him. He also admitted that the defendants had submitted applications for regularization before the Municipal Corporation. 12. Defendant Sunil Bali, examined as DW-1, stated that the plaintiff had not provided financial assistance for making the property free from mortgage and had failed to bear the expenses relating to removal of the transformer and construction of the boundary wall. He further stated that despite repeated demands, expenses relating to regularization had not been paid. In his cross-examination, he admitted that an application for regularization, marked as Ex.D-1, had been submitted before the competent authority. He stated that the application had subsequently been rejected. Significantly, however, he admitted that the plaintiff had not been informed about the rejection. 13. The documentary and oral evidence, therefore, establishes that the agreement cast distinct obligations upon both sides. The defendants were required to redeem the mortgage over the property and to discharge the liabilities relating to electricity, water and property taxes. They were also required to undertake the process of regularization of the property, remove the transformer and construct the boundary wall. The expenses of regularization, removal of transformer and 10 / 22 construction of the boundary wall, however, were to be borne by the plaintiff. 14. Thus, while the financial burden of certain acts was to be borne by the plaintiff, the corresponding acts themselves were required to be undertaken by the defendants in accordance with the terms of the agreement. 15. The record further establishes that the defendants had submitted an application for regularization, Ex.D-1, on 24.03.2017, shortly after execution of the agreement. However, there is no satisfactory documentary evidence on record demonstrating that the regularization process was completed. Although defendant DW-1 stated that the application had been rejected, no order or other document evidencing such rejection was produced before the Court. 16. More importantly, the defendants admittedly did not communicate the alleged rejection of the regularization application to the plaintiff. In the absence of such communication, the plaintiff cannot, merely on the basis of the defendants' subsequent assertion, be held responsible for the non-completion of the regularization process. The agreement itself contemplated execution and registration of the sale deed after fulfillment of the stipulated conditions, including regularization of the property. The evidence on record indicates that the completion of the regularization process depended upon action by the competent authority and was not wholly within the control of the defendants. At the same time, the plaintiff had specifically undertaken to bear the expenses associated with regularization and construction of the 11 / 22 boundary wall. The evidence, however, does not establish by cogent material that the defendants had made a specific demand upon the plaintiff for payment of the requisite amount towards regularization and that the plaintiff had thereafter refused or neglected to make such payment. On the contrary, the plaintiff consistently maintained that he was ready and willing to perform his part of the agreement and that the defendants had not called upon him to make the requisite payment. The defendants' own evidence establishes that they had initiated the regularization proceedings, but the record does not establish that the plaintiff was duly informed of the subsequent status thereof or that he was afforded an effective opportunity to fulfill the financial obligations resting upon him. 17. The Court, while exercising jurisdiction in a suit for specific performance, cannot disregard the express terms and conditions of the agreement or substitute a different bargain for that agreed between the parties. Where execution of the sale deed is made subject to fulfillment of specified requirements, such requirements cannot be dispensed with merely because the plaintiff has established his readiness and willingness. In the present case, the condition relating to regularization remained unfulfilled and was dependent upon the competent authority. The appellant’s readiness and willingness, therefore, cannot override or dispense with such contractual condition. 18. The contention of the appellant/plaintiff that proof of readiness and willingness necessarily entitles him to a decree for specific performance cannot, therefore, be accepted. Readiness and willingness constitute an essential requirement for seeking specific performance, but do not 12 / 22 confer an absolute right to such relief or authorize the Court to disregard the substantive terms of the contract. The grant of specific performance remains subject to the provisions of the Specific Relief Act and the enforceability of the contractual obligation. Accordingly, in the absence of fulfillment of the agreed condition regarding regularization, the appellant cannot claim specific performance merely on the basis of his readiness and willingness to perform his part of the contract. 19. It is not in dispute that learned trial Court framed an issue with regard to readiness and willingness and gave a finding to have been proved. However, there is no finding of learned trial Court with regard to proof of continuous readiness and willingness on the part of plaintiff/appellant but for pleading made in the plaint that plaintiff is ready and willing to perform his part of contract from the beginning and was having arrangement of balance amount to be paid in consideration as also registration fee. In evidence, the plaintiff had not specifically stated as to what arrangement he is having to pay huge amount of Rs.1,62,00,000/- (one crore sixty two lakh rupees) plus amount required towards registration fee of sale deed. 20. True it is that this is the appeal by plaintiff against partly allowing of his suit with regard to refund of money, with a prayer to direct respondent/defendant for specific performance of contract. 21. If no evidence is adduced in this regard by way of documentary evidence, no prudent man would come to the conclusion that person has proved possession of funds. In absence of any such documentary evidence being produced, it will be a case of being not proved. Plaintiff 13 / 22 cannot expect the Court to pass a decree for specific performance of a contract of sale when the plaintiff has not proved his readiness to perform his part of contract. 22. In case of Umabai and Another vs. Nilkanth Dhondiba Chavan (Dead) By LRs. and another, reported in (2005) 6 SCC 243, it has been held as under:- “30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16 (c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in- chief would not suffice. The conduct of the plaintiff- respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on records." 23. In case of R.Kandaswamy (since dead) & Ors. vs. TRK Saraswathi and Anr. reported in (2025) 3 SCC 513, Hon’ble Supreme Court has held that relief of specific performance is discretionary and equitable in nature. The plaintiff must plead and prove continuous readiness and willingness to perform the essential terms of the contract from the date of the agreement until the decree. The expression 'ready and willingness' signifies that the plaintiff must possess both the intention and financial capacity to perform the contractual obligations, particularly the obligation to pay the balance sale consideration. Mere assertions in pleadings are insufficient; plaintiff must place material on 14 / 22 record demonstrating availability of funds or capacity to arrange the same within the stipulated time. In absence of the same, plaintiff would not be entitled to the discretionary relief of specific performance. 24. In case of His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar reported in (1996) 4 SCC 526, while considering the issue of readiness and willingness to get the sale deed executed had also given weightage of the availability of sufficient funds to pay the consideration amount, Hon’ble Supreme Court observed thus :- “2. 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 determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27-2-1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct 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 not 15 / 22 ready nor had the 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 bide for the time which disentitles him as time is of the essence of the contract.” 25. Hon’ble Supreme Court in case of U.N. Krishnamurthy (since deceased) through LRs v. A.M. Krishnamurthy reported in (2023) 11 SCC 775 has considered the importance of readiness and willingness for enforcement of specific performance and held thus :- “45. It is settled law that for relief of specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.” 26. The aforementioned decisions have been taken into consideration by this Court only with a view as to whether even if the finding of learned trial Court is not put to challenge by respondent/defendant on readiness and willingness then also whether direction for specific performance of contract can be issued to respondent or not in the facts of case. 27. Grant of relief of specific performance is a discretionary relief. Court while considering the prayer for grant of specific relief has to exercise 16 / 22 judicially based on sound principle ensuring that granting relief of specific performance is just and equitable in the circumstances of the case. 28. In the case at hand, date of agreement is dated 22.02.2017. In that case, purchaser/plaintiff/appellant was well aware that construction of the building on the land was more than the area and sanctioned plan and therefore the clause has been put in agreement that sale deed is to be executed after regularization of unauthorized construction and it is for respondent-defendant to file application and all the expenses to be borne by purchaser i.e. appellant/plaintiff. He has to bear all other expenses for shifting of transformer and construction of boundary wall In the record, it is not in dispute that respondent/defendant had submitted an application for regularization. It is the evidence of defendant that after filing of application, plaintiff has not bothered about the status of application and kept quite for long time and first legal notice was issued only on 15.03.2018. In reply to notice which is filed as Ex.P-3 there is mention that at the time of entering into agreement to sell it was informed to purchaser that property is mortgaged and only after making payment of amount of loan it will be released from the Bank and only to meet out liability of loan, property is being sold. It is also stated in the reply to legal notice that even after about one year purchaser had not made arrangement of amount towards the sale consideration for release of property. It is also mentioned that plaintiff has not paid any amount towards expenses of regularization. Perusal of subsequent notice Ex.P-4 sent on behalf of the plaintiff/appellant would show that there is no averment in notice that, plaintiff/appellant is ready 17 / 22 to pay the bank dues or other expenses towards regularization or to get the sale deed executed of the property as it is. Suit is filed only on 04.02.2019 i.e. after lapse of two years from the date of execution of agreement to sell . From reply to notice it appears that respondent entered into the agreement to sell, only to meet out his financial needs and to re-pay loan amount. Not paying the loan amount in time has consequence of adding interest as per bank rates (that may be compound interest rate ) and on the other side value of the properly has been increased in these two years. 29. In the aforementioned facts of case, we have to consider whether the grant of decree of specific performance of contract in favour of appellant will be equitable in the facts and circumstances of the case. 30. Hon’ble Supreme Court in case of Kamal Kumar Vs. Premlata Joshi & Ors. reported in (2019) 3 SCC 704 held that grant of relief of specific performance is a discretionary and equitable relief and further formulated the questions required to be gone into for grant of relief for specific performance as under: “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are: 7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property. 7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract 18 / 22 and whether he is still ready and willing to perform his part as mentioned in the contract. 7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; 7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; 7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds.” 31. Hon’ble Supreme Court in the aforementioned judgment has further observed with regard to pleading and evidence to meet out the statutory requirement under Section 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and held as under : “8. In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.” 19 / 22 32. Hon’ble Supreme Court in case of Janardan Das and Ors. Vs. Durga Prasad Agarwalla & Ors. reported in (2024) 19 SCC 276 observing that relief of specific performance under the Specific Relief Act, 1963 to be discretionary in nature, observed thus: “31. The relief of specific performance under the Specific Relief Act, 1963, is discretionary in nature. Section 20 of the Act (applicable to this case as it predates the 2018 Amendment) explicitly stated that the court is not bound to grant such relief merely because it is lawful to do so. The discretion must be exercised judiciously and based on sound principles, ensuring that granting specific performance is just and equitable in the circumstances of the case. 32. In the present case, several factors weigh against granting specific performance. The agreement to sell was incomplete and unenforceable against Defendants 6 to 8, who held a majority share in the property; enforcing such an agreement would be inequitable. The plaintiffs failed to demonstrate readiness and willingness to perform their obligations and did not take necessary steps to secure the consent of all co-owners. Granting specific performance would unfairly prejudice the defendants, especially Defendants 6 to 8, who never consented to the sale to the plaintiffs. Furthermore, the plaintiffs can be adequately compensated by a refund of the earnest money with interest; there is no evidence to suggest that monetary compensation would not suffice. x x x x x x 35. In conclusion, considering the discretionary nature of the relief and the principles governing its exercise, we find that granting specific performance in this case 20 / 22 would be neither just nor equitable. The plaintiffs' failure to fulfil essential contractual terms, coupled with the lack of authority to bind all co-owners, renders the grant of specific performance inappropriate. The equitable remedy sought by the plaintiffs cannot be granted in light of their conduct and the circumstances of the case.” 33. Reverting back to the facts of the case at hand, plaintiff was well aware on the date of entering into agreement to sell about the extra construction made than that of sanctioned plan which requires regularization. Plaintiff could have very well purchased the property as it is but has imposed the condition that it is for the defendant to submit an application and get the unauthorized construction regularized and further condition is imposed for removing of transformer and construction of boundary wall. Plaintiff after execution of sale deed could have taken all the above activities of his own being owner of house subject matter of agreement but he has not done so, for the reason known to him. 34. There is no evidence of the plaintiff/appellant to prove the averment made in the plaint that plaintiff was ever ready and willing for getting the sale deed executed after payment of sale consideration . In the case at hand, balance amount of sale consideration is of Rs.1,62,00,000/- (one crore sixty two lakh rupees) plus registration fee which is required to be paid at the time of execution of sale deed. Plaintiff has not brought any evidence with regard to source or availability of said fund with him. Upon consideration of entire facts and circumstances of the case, we 21 / 22 are of the considered view that it will not be equitable to grant the relief of specific performance to the appellant/plaintiff against defendant. In fact it will cause great hardship to defendant because the defendant though agreed to sell the land in the year 2017, has not been paid the major balance amount of Rs.1,62,00,000/- (one crore sixty two lakh rupees) and now the value of property is also increased drastically in last 9 years. Defendant before trial Court had stated that he is ready to execute the sale deed in favour of plaintiff as per the rate prevailing on the date of recording of evidence but no offer has been made by plaintiff in this regard. 35. Learned trial Court has rightly considered to grant alternate relief to appellant/plaintiff of refund of money with interest as mentioned therein, which, in the facts of case appears to be just and proper. 36. Reliance placed by learned counsel for the appellant/plaintiff in case of Govindbhai Gordhanbhai Patel (supra) is distinguishable on facts. In that case, Hon’ble Supreme Court has considered Section 56 of the Contract Act, 1872, which talks of agreement to do impossible act, which is not applicable to the facts of case. In case at hand, according to terms of agreement, provision under Section 32 of the Contract Act 1872 would be attracted. 37. In case Kenneth Builders & Developers (supra), which is relied upon by learned counsel for the appellant, Hon’ble Supreme Court has taken into consideration the provision under Section 56 of the Contract Act and considering facts and circumstances of the case therein held that certain circumstances had intervened, making it impracticable for 22 / 22 Kenneth Builders to commence the construction activity on the project land and further held that it could certainly be said that the contract between the DDA and Kenneth Builders was impossible of performance within the meaning of that word in Section 56 of the Contract Act. 38. For the foregoing discussions, relevant law under Specific Performance of contract and the decisions of Hon’ble Supreme Court as referred to above, we are of the considered opinion that there is no error or infirmity in impugned judgment and decree passed by learned trial Court warranting interference. Appeal being devoid of substance is liable to be and is accordingly dismissed. 39. Let a decree be drawn accordingly. S Sd/- Sd/- (Parth Prateem Sahu) (Sushma Sawant) Judge Judge Praveen