JUDGMENT R. Bhaskaran, J. 1. The appellants are the defendants in O. S.15/1997 on the file of the Principal Sub-Court, Parayur. The suit was filed for specific performance of an agreement for sale as evidenced by Ext. A-1, dated 22nd August 1995. The trial court granted a decree for specific performance and directed the defendants to execute the assignment deed in favour of the plaintiff after receiving the balance consideration within two months from the date of decree. 2. The case of the plaintiff is that the defendant agreed to sell the plaint schedule property having an extent of 22 cents for a consideration of Rs. 11,500 percent. An amount of Rs. 25,000 was paid as advance. The period of the agreement was fixed as three months. According to the plaintiff, he was always ready and willing to perform his part of the agreement and it was the 1st defendant who delayed the execution of the document on some pretext or other. It is the further case of the plaintiff that the 1st defendant has not discharged any of his obligations under the agreement. The plaintiff caused to send a lawyer notice on 10th December 1996 and the suit was filed on 10th January 1997. The plaintiff has also prayed for return of Rs. 25,000 with 18 per cent interest in case it is found that he is not entitled to get specific performance of the agreement. 3. The first defendant died pending the suit and his legal representatives have been impleaded as additional defendants 2 to 8. In the written statement, the defendants admitted the execution of the agreement and receipt of Rs. 25,000. But their contention is that it is received not as advance but as earnest money. It was contended that the plaintiff was never ready and willing to perform his part of the agreement and he never made any attempt to purchase the properly till 10th December 1996 when he sent the notice and before that he never requested for executing the document. It is the further case of the defendants that the first defendant had on several occasions approached the plaintiff for the balance amount and for executing the document. The amount was urgently needed for conducting the marriage of the first defendant's daughter. Therefore the time was the essence of the contract. It is the further case of the defendants that the first defendant had on several occasions approached the plaintiff for the balance amount and for executing the document. The amount was urgently needed for conducting the marriage of the first defendant's daughter. Therefore the time was the essence of the contract. It is also stated that the property was got measured in October, 1995 itself by the Village Officer and since the plaintiff did not intimate about the date of execution of the document, no encumbrance certificate was obtained. The defendants had replied to the notice sent by the plaintiff showing the correct facts. In para 8 of the written statement the first defendant also contended that till April, 1995 there was no proper pathway to the plaint schedule property and it was only thereafter that a new road having 14 feet width was formed on the side of the plaint schedule property. It was formed after the owners of the land surrendered portions of their land free of cost. After the formation of the road the market value of the property increased manifold and it is at that time that the plaintiff thought of enforcing the agreement. It is the case of the defendant that since the plaintiff was guilty of undue delay in seeking execution of the sale deed he is not entitled to get a decree for specific performance. 4. The plaintiff was examined as P.W. 1 and Exts. A-l to A-3 were marked. On the side of the defendants D.W. 1 and D.W. 2 were examined and Exts. B-1 and B-2 were marked. D.W. 2 is the 5th defendant. 5. The trial court found that the amount of Rs. 25,000 paid by the plaintiff was not earnest money but was an advance payment towards the sale consideration. The contention that the time was the essence of the contract was not accepted by the trial court. According to the trial court, the evidence of plaintiff would go to show that he was always ready and willing to perform his part of the agreement. He is financially sound and he has got bank account in his name and also in the name of his wife. According to the trial court, the evidence of plaintiff would go to show that he was always ready and willing to perform his part of the agreement. He is financially sound and he has got bank account in his name and also in the name of his wife. According to the trial court since the plaintiff is entitled to file the suit within three years from the date of execution of the agreement and he has filed the suit within that time the fact that a new road has come into existence and the value of the property has increased manifold is no ground to deny specific performance. 6. We heard learned counsel appearing for the appellants and the respondent. The execution of Ext. A-l agreement and receipt of Rs. 25,000 on the date of execution is admitted by the parties. Therefore the only question to be considered is as to whether the plaintiff was ready and willing to perform his part of the agreement and whether it is a fit case to exercise the discretion to decree specific performance in favour of the plaintiff'. 7. To prove that the plaintiff was ready and willing to perform his part of the agreement the plaintiff has not adduced any independent evidence except examining himself. The agreement is dated 22nd August 1995 and the period of the agreement expired on 22nd November 1995, The plaintiff did not demand the performance of the agreement by sending a notice immediately after the expiry of the period. On the other hand he waited till 10th December 1996 i.e. more than one year of the expiry of the period under the agreement to send the notice. If may be true that the plaintiff is a businessman and he is having money to purchase the property. But the question is whether he was ready and willing to get the document executed and if so why he did not take any step to send a notice to the defendant to execute the document after the receipt of balance consideration. The case of the plaintiff while examined as P.W. 1 is that the first defendant was unwell and he did not satisfy the plaintiff about the extent or produced the encumbrance certificate. The case of the plaintiff while examined as P.W. 1 is that the first defendant was unwell and he did not satisfy the plaintiff about the extent or produced the encumbrance certificate. He admitted that he has not stated in the plaint that it was at the request of the defendant that the date for execution of the document was postponed. He also admitted that he does not remember when he demanded the execution of the document by the defendant. It is also admitted by him that in the notice sent in 1996 he has not stated that it was on account of the illness of the first defendant that the execution of the document was postponed. 8. It is true that under the agreement the defendant has to satisfy the plaintiff about the extent of the property and the absence of any encumbrance and also to give the title deed. The defendants examined D.W. 1 who is the retired Village Officer who was in service at the time of preparation of the sketch to prove Ext. B-l sketch. The trial court has stated that the sketch did not contain the signature of D. W. 1 or the date of preparation and therefore reliance cannot be placed on it. According to D.W. 1 Ext. B-l was not prepared as part of the official duty of the Village Officer and therefore it need not contain the signature or the date. Since the burden of proof is on the plaintiff and the plaintiff has not adduced any independent evidence to prove his readiness and willingness it cannot be said that the plaintiff has satisfactorily discharged that burden. 9. The further question to be considered in the case is whether time was the essence of the contract. According to the defendants the amount was needed for the marriage of the daughter of the first defendant and therefore it was understood between the parties that time was the essence of the contract. The defendant however did not adduce any evidence to show how the amount was found out for the marriage and whether the marriage could not be conducted for want of money agreed to be paid by the plaintiff. It is a settled proposition of law that with regard to the agreement for sale of immovable property time is not the essence of contract. It is a settled proposition of law that with regard to the agreement for sale of immovable property time is not the essence of contract. A Constitution Bench of the Supreme Court in Chand Rani v. Kamal Rani 1993 (1) S.C.C. 519 had occasion to consider this aspect. The Supreme Gouri held as follows: "It is a well accepted principle that in the case of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language." 10. After discussing the various decisions the Supreme Court concluded as follows: "From an analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. From the express terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example: the object of making the contract." 11. Even if time is not the essence of the contract the delay in seeking to enforce the agreement is a relevant factor while deciding the question whether specific performance of the agreement is to be enforced. It was so stated by the Supreme Court in K. S. Vidyanadam and others v. Vairavan 1997 (3) S.C.C. 1 . Para 10 of the Judgment reads as follows: "The period of limitation prescribed by the Limitation Act for filing a suit is three years. It was so stated by the Supreme Court in K. S. Vidyanadam and others v. Vairavan 1997 (3) S.C.C. 1 . Para 10 of the Judgment reads as follows: "The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no signific-ance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both S.10 and 20." 12. In Veerayee Ammal v. Seeni Ammal A.I.R. 2001 S.C. 2920 the Supreme Court referred to Chand Rani's case 1993 (1) S.C.C. 519 and stated that for the purpose of granting relief, a reasonable time has to be ascertained from all facts and circumstances of the case. In the facts of this case we are of the view that the plaintiff has not approached the Court within a reasonable time for getting specific performance of the agreement. 13. Even assuming that the plaintiff has been ready and willing to perform his part of the agreement the question still remains whether the plaintiff is entitled to get the discretionary relief of specific performance in the peculiar facts of this case. It is an admitted fact that at the time of execution of the agreement the property was a paddy land without any road frontage. There was only a 'varamba' to walk to the property. After one year of the agreement a road with 14 feet width was formed by the efforts of the people of the locality and when the road became a reality the value of the property increased. It was at that time the plaintiff woke up and thought of enforcing the agreement. It was after that he sent Ext. After one year of the agreement a road with 14 feet width was formed by the efforts of the people of the locality and when the road became a reality the value of the property increased. It was at that time the plaintiff woke up and thought of enforcing the agreement. It was after that he sent Ext. A-2 notice demanding performance of the agreement. The question to be considered is whether in such a case the Court should exercise the discretion in favour of the plaintiff. S.20 of the Specific Relief Act says that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Sub-section 2 (b) of S.20 says that the court may properly exercise discretion not to decree specific performance where the performance of the contract would involve some hardship upon the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. The formation of the road and the consequent increase in price was not in the contemplation of the parties at the time when the agreement was executed. It is true that mere increase of land value during the pendency of the litigation by itself is not a ground to refuse specific performance as held by the Supreme Court in S. V. R. Mudaliar v. Rajabu F. Buhari A.I.R. 1995 S.C. 1606. In Vidyasiadam's case (supra) the Supreme Court did not agree with the view of the Madras Court in S. V. Sankaralinga Nadar v. P. T. S. Ratnaswami Nadar A.I.R. 1952 Mad. 389 which had held that mere rise in price is not a ground for denying specific performance, if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the Court by law. 389 which had held that mere rise in price is not a ground for denying specific performance, if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the Court by law. It is further observed that the rigour of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties evolved in times when prices and values were stable and inflation was unknown, requires to be relaxed, if not modified, particularly in the case of urban immovable properties. In this case the land is situated one kilometre away from the National Highway. 14. In the light of the above, we are of the view that the trial court has exercised the discretion by ignoring the statutory provisions and judicial precedents and that this is not a fit case where we should exercise discretion in favour of the plaintiff as the plaintiff approached the Court only after finding that the value of the property has increased after the formation of a new road and it would be advantageous for him if he takes an assignment though he had slept over the matter for more than one year after the period of the agreement was over. We therefore decline to grant specific performance to the plaintiff. 15. Admittedly defendant has received Rs. 25,000 as advance. The contention of the defendants that it was received as earnest money has been found against by the trial court and we find that there is nothing in the agreement or in the evidence to show that it was paid as an earnest money. Since it was paid as an advance of the portion of the consideration it is only appropriate that the defendants refund the entire advance amount with interest at 12 per cent. The learned counsel for the appellants also could not show any reason for not granting the relief to the plaintiff. We therefore set aside the Judgment and Decree of the lower court and allow the appeal. The decree for specific performance to execute the assignment deed is set aside and in its place the plaintiff is granted a decree allowing the plaintiff to realise the amount of Rs. We therefore set aside the Judgment and Decree of the lower court and allow the appeal. The decree for specific performance to execute the assignment deed is set aside and in its place the plaintiff is granted a decree allowing the plaintiff to realise the amount of Rs. 25,000 with 12 per cent interest from 22nd November 1995 till the date of realisation and the said amount with interest will be a charge on the plaint schedule property. The appeal is disposed of as above. The parties shall suffer their costs in the appeal.