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11. Per contra, Mr. Amar N. Bhatt, Ld. Advocate for the respondent No.2 has submitted that the lower Appellate Court held that there was a concluded contract between the parties, that the appellants ­ plaintiffs are ready and willing to perform their part of the contract. However, thereafter it is held that the appellants ­ plaintiffs are not entitled to specific performance of the contract but in the alternative are entitled to get damages and the damages that has been awarded are to the extent prayed for. Thus, the real and the limited question as such in the present Second Appeal is whether the lower Appellate Court was justified in refusing specific performance for the reasons stated by the C/SA/116/2020 JUDGMENT lower Appellate Court in paragraphs 32, 33, 34, 35, 36 and 37. The discretion is exercised based on the facts and considering the totality of circumstances. The lower Appellate in paragraph 32 has clearly observed that, "the nature of the contract is such that it requires continuous supervision for its performance which cannot be supervised by the Court. The agreement between the parties was oral and as such the minute details and the terms of mode of execution of contract were not reduced in writing and in those circumstances the contract is not capable enough as to direct specific performance of the same". He has submitted that the refusal of the lower Appellate Court is essentially on appreciation of facts and evidence on record and the same cannot in any manner involve a question of law, much less a substantial question of law for this Court to exercise its jurisdiction under Section 100 of the C/SA/116/2020 JUDGMENT Civil Procedure Code.

13. He has further submitted that the alternate prayer for refund of earnest money deposit and compensation is granted in full. It is in view of the aforesaid that the respondent ­ defendants submit that both the Courts i.e. the Trial Court and the lower Appellate Court have concurrently refused specific performance. The decision of not granting specific performance is "concurrent in nature".

15. He further placed reliance upon the decision rendered in case of Damodar Lal vs. Sohan Devi and Others reported in (2016) 3 SCC 78 and the decision rendered in case of Veerayee Ammal vs. Senni Ammal reported in C/SA/116/2020 JUDGMENT (2002) 1 SCC 134. After relying upon the above decisions, he submitted that the impugned judgment of the lower appellate Court has applied settled principles and decisions and therefore, no interference is required to be called for in the second appeal. The provision of Section 100 of CPC restricting Second Appeal only on the substantial questions of law is based on the public policy expressed maxim 'interest republican ut sit finis litium' meaning that it is in the interest of the State that there must be an end to litigation. There is no perversity of any kind demonstrated by the lower appellate Court in the matter of appreciation of evidence. It is only after appreciation of evidence, that the lower appellate Court has observed that the performance involved the performance of a continuous duty which the Court cannot supervise and hence the decree of specific performance is refused. Such appreciation of C/SA/116/2020 JUDGMENT evidence cannot be termed as 'perverse' much less would warrant any exercise of powers under Section 100 of the CPC. He further submitted that there are concurrent findings of the courts below in so far as prayers of the plaintiffs for specific performance is concerned. Relying on the issues framed and decided by the trial Court and reappreciated by the lower appellate Court, he submitted that the courts below have rightly held that the appellants­plaintiffs have failed to prove that there was concluded contract to sell suit flats, which can be enforced. He also submitted that it will be inequitable to grant a decree of specific performance where it is clear that the appellants­ plaintiffs will have an unfair advantage over the respondents­defendants. Reliance is placed upon the decisions rendered in case of Bellachi by lrs. vs. Pakeeran reported in (2009) 12 SCC 95, in case of K. Nanjappa by legal representatives vs. R.A. Hameed @ C/SA/116/2020 JUDGMENT Ameersab by legal representatives and another reported in (2016) 1 SCC 762, in case of Shamsher singh and others vs. Rajinder kumar and others reported in (2015) 5 SCC 531 and in case of State of H.P. And another vs. Akshara nand by lrs. and others reported in (2000) 3 SCC 661. It is submitted that therefore no substantial questions of law arise in this second appeal. There was no interim relief granted or operating during the pendency of the special civil suit or regular civil appeal. Therefore, the question of granting any interim relief as prayed for in the civil application at any rate does not arise. The second appeal and the civil application may therefore, be dismissed.

(b) It is well settled law that the grant of decree of specific performance is the discretion of the court and it is always C/SA/116/2020 JUDGMENT not necessary to grant specific performance simply because it is legal to do so. Ordinarily the plaintiff is not to be denied ~ the relief of specific performance only on account of ­ phenomenal the price of property during the pendency of the application but still that it is relevant factor to be taken into consideration while refusing the decree of specific performance specifically than the plaintiff has not paid a considerable amount toward the sale consideration and only paid 5% or 10% of the consideration amount as on the contrary, plaintiff would also have invested the remaining amount somewhere else and would have reaped the benefits of the phenomenal increase in prices of the properties in the vicinity. Furthermore, if other factor beside would also weighs against the grant of specific performance of contract the court may refuse the. same and still award the compensation amount as stipulated under Section 21 of the Specific Relief Act.