Hon’ble Pramod Kumar Srivastava, J.—Original Suit No. 342/2002, Naubat Ram v. Smt. Reshwamwati, was filed for the relief of specific performance of contract of sale of property of defendant in favour of plaintiff. This suit was decreed by the judgment dated 10.4.2014 of Additional Civil Judge (S.D.), Badaun. Against this judgment of trial Court, Civil Appeal No. 10/2014, Smt. Reshamwati v. Naubat Ram, was preferred which was dismissed on merits by the judgment dated 16.9.2015 of the Additional District Judge, Court No. 9, Budaun, who had confirmed the findings of the trial Court for specific performance of contract. Aggrieved by the judgment of the two Courts below, present second appeal has been preferred by the defendant of the original suit.

2. It is pertinent to mention that execution of registered deed of agreement to sell was admitted by the parties. The defendant-appellant had taken a few factual points which were not proved, and the trial Court as well as first appellate Court had given concurrent findings of facts that parties had executed registered agreement to sell dated 20.9.1999 by which the defendant-appellant had taken advance consideration and agreed to execute registered sale-deed of disputed property after receiving remaining consideration. Thereafter plaintiff had been ready and willing party his part of contract but it was the defendant who had not executed sale-deed in spite of reminders and notice. With this findings both the Courts below have confirmed the decree of specific performance of aforesaid agreement to sell.

3. So far factual aspect is concern, it was not challenged by the appellant. A perusal of the record reveals that there has been consistent and concurrent finding of fact on above mentioned point. Therefore, execution of registered agreement to sell has been proved and it is also proved that plaintiff-respondent has been ready and willing to perform his part of the contract, but it could not be executed due to fault of defendant-appellant.

4. Learned counsel for the appellant in second appeal contended that the two Courts below had not properly considered the provision of Section 20 of the Specific Relief Act in the light of facts and circumstances available before them. He contended that although powers under Section 20 of the Specific Performance Act is discretionary but Court should have applied it in this specific case, and should have ordered for the return of advance consideration to plaintiff-respondent instead of directing specific performance of contract through execution of sale-deed of property which would, in fact, ruin the appellant’s family.

5. Counsel for the appellant has cited single bench Rule of this Court report in the case of Om Prakash v. Ram Kishan Gupta, 2007 (666) ALR 885, in which this Court has held as under:

“Section 20(2) of the Specific Relief Act provides that the Court has discretion to decree the suit for specific performance. It is not bound to grant specific relief merely because it is lawful to do so. The discretion, however, is not to be exercised arbitrarily, but on sound and reasonable ground guided by judicial principles. The guidelines for exercise of such discretion provided in sub-section (2) EW :

(a) Where the term of the contract or the conduct of the parties at the time of entering into contract or the other circumstances under which contract was entered into are such that the contract, though not available, gives the plaintiff an unfair advantage over the defendant, or

(b) Where the performance of the contract would involve some hardship on the defendant which he did not forsee, whereas its non performance would not involve no such hardship to the plaintiff, or

(c) Where the defendant entered into the contract under circumstances which though not render the contract avoidable, makes it inequitable to enforce specific performance”.

6. Learned counsel for the appellant had also cited Dada Rao and another v. Ram Rao and others, (1999) 8 S