JUDGMENT : 1. The decree of the suit with costs for specific performance by the judgment and decree dated 18-06-2001 in O.S. No.93 of 1993 on the file of the Principal Senior Civil Judge’s Court, Visakhapatnam led the unsuccessful defendant to file the present appeal. 2. The plaintiff filed the suit for specific performance of the agreement of sale dated 03-06-1989 in respect of the vacant site of 1500 square yards with a compound wall in S.No.11/4F of Butchirajupalem village within Visakhapatnam Municipal Corporation limits. The plaintiff claimed that the defendant executed the suit agreement in favour of the plaintiff, a registered partnership firm represented by its Managing Partner Konathala Apparao agreeing to sell the suit site for Rs.3,80,000/- and delivered possession under the agreement on receiving an advance of Rs.20,000/-. A registered sale deed was agreed to be executed within three months and urban land clearance certificate, income tax clearance certificate, etc., were undertaken to be obtained by the defendant. The plaintiff kept Nalu Appanna as watchman who is living in the suit land in a thatched and A.C. sheet shed and the plaintiff got a compound wall constructed all around at a height of 5 feet for protection against illegal encroachments. The plaintiff was always ready and willing to perform its part of the contract and was demanding the defendant to execute a registered sale deed. But the defendant was postponing on some pretext or the other and did not obtain the clearance certificates as agreed. To the lawyer’s notice dated 06-03-1992 issued by the plaintiff, the defendant gave a reply claiming the consideration to be different and possession to be not delivered. The plaintiff sent a rejoinder on 18-05-1992 enclosing a copy of the sale agreement as requested by the defendant, on which the defendant remained silent and hence, the suit. 3. The defendant resisted the suit contending that the plaintiff has to strictly prove its registration and the authority of Konathala Apparao. The defendant executed the suit agreement, but it was neither duly stamped nor registered as per the law in force. The possession of the suit site was never delivered to the plaintiff and the suit agreement is unenforceable, inoperative and void. The plaintiff had to obtain the clearance certificates and the plaintiff miserably failed to perform its part of the contract though time was essence of the contract under the inadmissible and void document. The possession of the suit site was never delivered to the plaintiff and the suit agreement is unenforceable, inoperative and void. The plaintiff had to obtain the clearance certificates and the plaintiff miserably failed to perform its part of the contract though time was essence of the contract under the inadmissible and void document. The defendant never undertook to obtain any clearance certificates and any unauthorised construction of any compound wall does not confer any right, title or interest on the plaintiff. The defendant gave proper and prompt reply to the notice dated 06-03-1992 and the suit is barred by time. The suit has no cause of action and is incorrectly valued. The plaintiff is not entitled to any relief and hence, the defendant sought for the dismissal of the suit with costs. 4. On such pleadings, the trial Court settled the following issues for trial: 1. Whether the plaintiff-firm is registered under Indian Partnership Act ? 2. Whether the suit sale agreement dated 3-6-1989 is not valid and enforceable ? 3. Whether the plaintiff is in possession of the suit schedule property ? 4. Whether the plaintiff performed or ready and willing to perform his part of contract ? 5. Whether the suit is barred by time ? 6. Whether the valuation of the suit is not correct ? 7. Whether the plaintiff is entitled for the specific performance of suit sale agreement dated 3-6-1989 ? 8. To what relief ? 5. P.W.1, P.W.2, D.W.1 and D.W.2 were examined and Exs.A.1 to A.7 and B.1 to B.4 were marked during trial. 6. The trial Court rendered the impugned judgment firstly holding the plaintiff to be a registered firm as proved by Ex.A.1 firm registration certificate and Ex.A.7 copy of Form- A. The trial Court noted that the plaintiff got Ex.A.2 agreement of sale impounded and paid the stamp duty and penalty imposed by the Collector. The trial Court further noted that Ex.A.2 sale agreement coupled with Ex.A.3 photos and negatives showing the constructed compound wall all around, corroborated by the evidence of P.W.2, the watchman, provided cogent and acceptable evidence in contrast with the interested and uncorroborated evidence of D.W.1, the defendant, and D.W.2, her husband, who did not produce any document to probablise continuance of their possession. The trial Court also observed that the defendant is estopped from denying the contents of Ex.A.2 agreement of sale after admitting its execution. The trial Court refused to accept the recitals in Ex.B.2 draft sale deed filed by the plaintiff in the execution proceedings that the possession will be delivered at the time of registration of sale deed as neutralizing Ex.A.2 and concluded the plaintiff to have established its possession of the suit property since Ex.A.2. The claim of D.Ws.1 and 2 about the agreement being for Rs.5,00,000/-with Rs.50,000/- being paid as advance, was rejected in the absence of any plea, and any oral evidence about fabrication of Ex.A.2 sale agreement on blank papers with defendant’s signatures, was also not accepted for similar reason. The trial Court also noted the conduct of the defendant in changing her advocate from time to time and considered her to be estopped from raising any plea contrary to the pleadings. The trial Court further noted that Ex.A.2 was attested by D.W.2, sister of D.W.1 and another relative of D.Ws.1 and 2. It also noted that the other two attestors being the sister and relation of D.W.1 could have been examined to probablise the defence if it were true and it also observed that the defendant did not examine any disinterested or independent witness to probablise the escalation in the price of the suit land from Rs.6,00,000/- to Rs.10,00,000/- and later to Rs.20,00,000/-. It is also calculated that if the suit land was agreed to be sold for Rs.275 per square yard as shown in Ex.B.3, the market value will be only Rs.4,12,500/- and not Rs.5,00,000/-. The trial Court further observed that the evidence of P.W.1 shows that the plaintiff demanded the defendant to register a sale deed and that the defendant did not obtain the necessary clearances. It also noted that the plaintiff purchased the adjacent piece of land from D.W.1’s sister on 03-06-1989 probablising the capability of the plaintiff to purchase. It also noted that the plaintiff deposited the entire sale consideration after an ex parte decree granted earlier. The trial Court distinguished the decisions relied on by the defendant as inapplicable to the facts as it considered the plaintiff’s readiness and the defendant’s inaction to be probablised. It also noted that the plaintiff deposited the entire sale consideration after an ex parte decree granted earlier. The trial Court distinguished the decisions relied on by the defendant as inapplicable to the facts as it considered the plaintiff’s readiness and the defendant’s inaction to be probablised. The trial Court also considered the suit to be within time both from the date of Ex.A.2 agreement and also from the date fixed for performance at three months from Ex.A.2. The suit was held to be correctly valued and a decree for specific performance was granted directing the defendant to register a sale deed and in default, entitling the plaintiff to get the sale deed executed at the expense of the defendant. 7. The defendant challenged the said judgment and decree contending that grant of specific performance is discretionary depending on the conduct of the parties and the comparative advantages and disadvantages. When time was the essence of the contract under Ex.A.2 which fixed three months as the time for performance, the plaintiff, who took no steps to get the clearances and who issued a notice and filed the suit at the fag end of the third year, is not entitled to specific performance. The plaintiff, who paid Rs.20,000/- only out of Rs.3,80,000/- and did not pay the balance for years and did not even pay or offer any interest, cannot demand specific performance after 2 years 9 months claiming to be ready and willing always. The plaintiff utilized the money due to the defendant in its commercial activities, while the defendant was deprived of the use of and interest on such money. The value of the house sites in Visakhapatnam tremendously increased in the meanwhile, which can be taken judicial notice of, putting the defendant to a highly disadvantageous position. The plaintiff, who did not come with clean hands, cannot get the discretionary relief on some lacunae in the defendant’s version and the plaintiff’s Managing Partner did not even examine himself. He examined his son only to avoid cross-examination on material aspects and he did not even pray for alternative relief of refund. Hence, the defendant sought for reversal of the impugned judgment. 8. He examined his son only to avoid cross-examination on material aspects and he did not even pray for alternative relief of refund. Hence, the defendant sought for reversal of the impugned judgment. 8. During the course of hearing of the appeal, the appellant/defendant filed a memo dated 07-09-2007 stating that the market value of the site as per the basic value register is Rs.15,000/- per square yard and the property of an extent of 1500 square yards is of a value of Rs.2.25 crore. The appellant offered to pay Rs.1.25 crore to the respondent within eight weeks from the date of the order of the Court in addition to the refund of the advance amount of Rs.20,000/-. 9. The respondent filed a memo, in response, stating that K. Apparao, the Managing Partner of the family firm, purchased another extent of 1500 square yards from V. Sakuntala, the appellant’s sister, under a registered sale deed and then the suit land, which is adjacent, to enable all his six sons to carry on business at one place jointly enjoying the property. The plaintiff never had any intention to part with the suit land or resell the same for higher consideration and hence, the plaintiff had instructed its counsel to persuade the Court on merits of the case. 10. Sri P. Satyanarayana, learned counsel for the appellant and Sri V.V.L.N. Sarma, learned counsel for the respondent reiterated their contentions respectively and relied on various precedents, which will be referred to in due course. The learned counsel for the appellant referred extensively to the pleadings and evidence on record to probablise the disentitlement of the plaintiff to the discretionary relief of specific performance. He also strongly pleaded in the alternative to accept the offer of the defendant for payment of Rs.1.25 crore in addition to refund of the advance of Rs.20,000/- in the interests of justice to avoid undue hardship, disadvantage and deprivation to the defendant. He also strongly pleaded in the alternative to accept the offer of the defendant for payment of Rs.1.25 crore in addition to refund of the advance of Rs.20,000/- in the interests of justice to avoid undue hardship, disadvantage and deprivation to the defendant. The learned counsel for the respondent defended the impugned judgment and decree on merits and further argued that the present day market rate cannot be a guide for determining the right of the plaintiff to specific performance as on the date of the suit and if the plaintiff were to be considered entitled to the discretionary relief as on the date of the suit, the benefit of any increase in the value of the property should enure to the plaintiff and not the defendant. 11. With such background, the following points arise for consideration in the appeal. 1. Whether the offer of the defendant to pay Rs.1.25 crore plus Rs.20,000/- in lieu of specific performance needs to be accepted to avoid unjust deprivation of property to the defendant ? 2. Whether the plaintiff is entitled to specific performance, and if so, only subject to appropriately compensating the defendant of the undue and heavy loss sustained due to abnormal escalation of prices in the meanwhile keeping in view the conduct of the parties and over all facts and circumstances ? 3. To what relief ? Points 1 and 2: 12. Before adverting to the facts, it may be useful to refer to the precedents cited and the principles deducible from the same. 13. Sri P. Satyanarayana, learned counsel for the appellant referred to the following precedents. 14. In Sardar Amarjeet Singh v. Nandu Bai ( 1998 (5) ALT 412 (D.B.)), the vendee did nothing for 2 years 9 months to act in furtherance of the agreement and though the suit was filed well within the period of limitation, the same was held to be not enough. The Court can legitimately take into account the long, unexplained silence and inaction on the part of the plaintiff in assessing the question of readiness and willingness of the party to perform his/her part of the contract. The Court can legitimately take into account the long, unexplained silence and inaction on the part of the plaintiff in assessing the question of readiness and willingness of the party to perform his/her part of the contract. It was further held that the readiness and willingness on the part of the plaintiff cannot be inferred merely because at the fag end of the period of limitation a notice was issued calling upon the vendor to execute sale deed and that readiness and willingness must have an element of continuity. The delay was considered to have brought about a situation where it would be inequitable to give the relief of specific performance. 15. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao ((1995) 5 Supreme Court Cases 115), it was pointed out that specific performance is an equitable remedy and is in the discretion of the Court and the Court is not bound to grant the relief just because there was a valid agreement of sale. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. The Court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract. 16. In Kanshi Ram v. Om Prakash Jawal (AIR 1996 SUPREME COURT 2150), the Supreme Court noted that it is true that the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It was noted that when the Court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties and considered from that perspective, in view of the fact that the respondent himself had claimed alternative relief for damages, the Apex Court thought that the Courts would have been well justified in granting alternative decree for damages instead of ordering specific performance which would be unrealistic and unfair. 17. 17. In Chunduru Padmavathi v. Chunduru Narasimha Rao ( 2000 (2) CCC 455 (AP)) also, there was total inaction and silence on the part of the plaintiff for more than two years and there was no explanation whatsoever for the long delay. The plaintiff was held to have failed to perform his part of the contract within a reasonable time and there was undue delay in filing the suit. The plaintiff was noted to have paid only a meagre sum as advance and consequently, the suit for specific performance was dismissed. 18. In His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar (AIR 1996 SUPREME COURT 2095), there was no documentary proof that the plaintiff had ever funds to pay the balance consideration and the draft sale deed was not returned after being duly approved within seven days of the agreement as agreed. The Apex Court assumed the absence of readiness and willingness to perform the essential terms of the contract and refused the specific relief. 19. In C. Manohar Reddy v. Alopi Shanker ( 2007 (2) ALD 496 (DB)), it was observed that when the time schedule is fixed for payment in the agreement, it is for the plaintiffs to make payments as per the terms of the agreement in order to show that they were always ready and willing to perform their part of the contract. When the plaintiffs did not offer those amounts, did not deposit the amounts in any bank under intimation to the defendants and did not, thus, show their readiness and willingness to perform their part of the contract though time was the essence of the contract, the defendants are entitled to resile from the contract and the plaintiffs are not entitled to the discretionary relief of specific performance. 20. K.S. Vidyanadam v. Vairavan (AIR 1997 SUPREME COURT 1751) is the decision followed in Sardar Amarjeet Singh’s case (1 supra) and Chunduru Padmavathi’s case (4 supra). The Apex Court noted therein that even if time 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 evident from the express terms of the contract, from the nature of the property, and from the surrounding circumstances. The Apex Court noted therein that even if time 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 evident from the express terms of the contract, from the nature of the property, and from the surrounding circumstances. The Court should look at all the relevant circumstances including the time limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised. The Apex Court further noted that the plaintiff was sitting quiet for a period of more than two and half years without taking any steps to perform his part of the contract though the agreement specified a period of six months. The Apex Court also noted that the constant and continuous rise in the values of the urban properties is a reality to which they cannot be oblivious and the Court should bear in mind that prescribing a time limit under the agreement must have some significance. The Apex Court held that the delay coupled with substantial rise in prices brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff. 21. In Nirmala Anand v. Advent Corpn. Pvt. Ltd. (AIR 2002 SUPREME COURT 2290), it was held by Hon’ble Sri Justice Doraiswamy Raju that the purchaser cannot be allowed to have for her alone, the entire benefit of manifold mega increase of the value of real estate property in the locality. It was observed that specific performance being an equitable relief, balance of equities have also to be struck taking into account all these relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor. In the case before the Apex Court, there were offers to pay higher sums and demands to pay much higher sums and Hon’ble Sri Justice Doraiswamy Raju directed the appellant to pay Rs.40,00,000/- to the respondents in addition to the amount already paid as balancing measure. Hon’ble Sri Justice Ashok Bhan on the contrary held that delay by itself due to pendency of the suit/appeal in the Courts is no ground to refuse the relief of specific performance unless certain compelling circumstances are brought on record to take a view to the contrary. Hon’ble Sri Justice Ashok Bhan on the contrary held that delay by itself due to pendency of the suit/appeal in the Courts is no ground to refuse the relief of specific performance unless certain compelling circumstances are brought on record to take a view to the contrary. His Lordship observed that escalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him. Noting that it would depend on the facts and circumstances of each case, His Lordship observed that the appellant was always ready and willing to perform her part of the contract at all stages and did not take any advantage of her own wrong and was in no way responsible for the delay at any stage of the proceeding. His Lordship further noted that it was the respondents who have always been and are trying to wriggle out of the contract and cannot take advantage of their own wrong. His Lordship further observed that requiring the appellant to pay further sum of Rs.40,00,000/- would/may amount to frustrating the agreement itself and it would be unfair to grant the decree of specific performance by one hand and take it back by the other. Therefore, His Lordship was of the view that the appellant was entitled to the specific performance of the agreement on the price mentioned in the agreement itself subject to other terms specified in the judgment. 22. The learned counsel for the respondent Sri V.V.L.N. Sarma referred to the following precedents. 23. S. Brahmanand v. K.R. Muthugopal (AIR 2006 SUPREME COURT 40) decided that where the original agreement fixed a date for performance and the defendants made a request to postpone the performance to a future date without fixing any further date for performance, the act of forbearance by the plaintiffs not insisting on performance forthwith makes the contract one in which no time is fixed for performance of the contract making the contract governed by the second part of Article 54 of the Limitation Act, 1963, shifting it from the first part. Consequently, the Apex Court held that only when the plaintiffs had notice of refusal of performance, the period of limitation starts to run. 24. Consequently, the Apex Court held that only when the plaintiffs had notice of refusal of performance, the period of limitation starts to run. 24. In Mademsetty Satyanarayana v. G. Yelloji Rao (AIR 1965 SUPREME COURT 1405), the Apex Court held that mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant, does not empower a Court to refuse the relief of specific performance. It was also held that it is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief. 25. M.L. Devender Singh v. Syed Khaja (AIR 1973 SUPREME COURT 2457) laid down that mere proof that a sum is specified as liquidated damages or penalty for a breach should not be enough to prove that a contract for the transfer of immovable property could be adequately compensated by the specified damages or penalty. The jurisdiction of the Court to decree specific relief is discretionary and must be exercised on sound and reasonable grounds guided by judicial principles and the jurisdiction cannot be curtailed or taken away by merely fixing a sum even as liquidated damages. It was observed that equity helps honest plaintiffs against the defendants who break solemnly given undertakings. 26. In Prakash Chandra v. Angadlal (AIR 1979 SUPREME COURT 1241), it was pointed out that the ordinary rule is that specific performance should be granted and it ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. When the plaintiff acted fairly throughout and did not commit any act or omission to secure unfair advantage and when performance of the contract does not involve some hardship, which the defendants did not foresee, the relief of specific performance will be granted. 27. When the plaintiff acted fairly throughout and did not commit any act or omission to secure unfair advantage and when performance of the contract does not involve some hardship, which the defendants did not foresee, the relief of specific performance will be granted. 27. In Sugani v. Rameshwar Das (AIR 2006 SUPREME COURT 2172), the Apex Court held that the suit filed within a few months after the denial of the agreement by the defendants is not barred by limitation, when the agreement did not fix any date for performance. It was also held that the basic principle behind Section 16(c) of the Specific Relief Act is that any person seeking benefit of the specific performance of the contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief and if the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint, he should not be denied the relief. 28. Akbar Ali v. Vinod Khanna (AIR 2004 SUPREME COURT 3940) is a case where the agreement was contended to be unconscionable, as the price of the land at the time of the alleged agreement to sell, was more than Rs.20.00 lakhs and the defendant was being deprived of such valuable land for a petty amount. The Apex Court found that no such plea was raised in the written statement, no issue was framed and no evidence was led to prove the same and in the absence of plea, issue and evidence, the Apex Court was unable to hold that the agreement was unconscionable. 29. In Aniglase Yohanan v. Ramlatha (AIR 2005 SUPREME COURT 3503), the agreement stipulated six months to be time to complete the sale and immediately after expiry of the same, a lawyer’s notice was given to the defendant to execute a sale deed. It was also pleaded that the plaintiff met the defendant several times requesting him to execute a sale deed and the plaint clearly averred that the plaintiff was always ready to get the sale deed after paying the consideration. It was held that an order decreeing the suit for specific performance in favour of the plaintiff would be proper under the circumstances. 30. It was held that an order decreeing the suit for specific performance in favour of the plaintiff would be proper under the circumstances. 30. Tek Chand v. Deep Chand (AIR 2001 SUPREME COURT 1392) decided that when the agreement was true and genuine and the purchaser paid advance while the vendor committed breach of contract, the vendor has to be directed to execute a sale deed. 31. In D.N. Raju v. Santosh Verma ( 2007 (4) ALT 492 ), the Court found that when the demands by the plaintiff from time to time were not acceded to by the defendant and the suit was filed within limitation, there was no basis for denial of the relief to the plaintiff. It was also held that when a suit was filed within limitation, denial of the relief cannot be countenanced on the ground that the suit was filed after several years from the date of the relevant agreement. 32. Godavarthi Ramakrishna Rao v. B. Sitaramachandra Raju ( 2007 (4) ALT 784 ) laid down that normally in a suit for specific performance in relation to immovable property, time cannot be treated as essence of the contract. It was found on facts that the conditions specified in the agreement of sale cannot come in the way of the plaintiff claiming the relief of specific performance, which was otherwise within the period of limitation. 33. In Jaksani Lakshman Rao v. Ellandula Ravinder ( 2007(2) ALT 41 ), the relief of specific performance was granted on facts after extensive reference to the principles laid down in various decisions cited before the Court. 34. In Boddu Satyavathi v. Boddu Ramakrishna Rao (2006 (TLS) 434445), the learned Judge with reference to the facts and circumstances concluded with reference to Gobind Ram v. Gian Chand ( AIR 2000 SC 3106 ), that nothing prevents the Court from directing the purchaser to pay the balance of consideration or any amount in addition to that as the condition precedent for granting decree of specific performance, when the equities are in favour of the purchaser. The escalation of prices after applying principle of justice, equity and good conscience can be taken into consideration. The escalation of prices after applying principle of justice, equity and good conscience can be taken into consideration. It was also observed that where there is no hardship to the defendant, but there is hardship to the plaintiff, who was already put in possession and who paid major portion of the sale consideration and made improvements also, the ordinary rule that the specific performance should be granted, should not be deviated from. As the defendant did not plead or adduce any evidence about any prejudice caused, the relief of specific performance was granted in appeal. 35. Ratan Pal Singh v. Kunwar Pal Singh (AIR 2001 ALLAHABAD 224) is a case where the rise in prices of the property during the pendency of the suit was considered to be not the sole consideration for refusing a decree of specific performance. A case in which the Apex Court granted an alternative relief for damages of Rs.10,00,000/-, while the sale consideration was only Rs.16,000/-, was referred to as based on the peculiar facts and circumstances of that case. 36. In Hamsammal v. P.V. Thakkar (AIR 1982 MADRAS 108), it was held that where there is not even a single circumstance in favour of the defendant and when the defendant has not been prejudiced in any manner whatsoever, the plaintiff was rightly given the decree for specific performance. It was observed that only where it would be practically unjust to give a remedy either because the party has, by his conduct, done that what might fully be equivalent to waiver of it or had put the other party in a situation prejudicial or inequitable to his interest, the equitable relief is sometimes denied on the ground of delay. 37. The subject vacant site of 1500 square yards is within the limits of Visakhapatnam Municipal Corporation and even by 03-06-1989 it was admittedly worth Rs.3,80,000/-. Out of the sale consideration mentioned in Ex.A.2 agreement, the advance paid by the plaintiff was Rs.20,000/-, which is about 5% of the consideration agreed and the plaintiff had the advantage of delivery of possession of vacant site to him under the agreement itself on 03-06-1989, according to his version. Out of the sale consideration mentioned in Ex.A.2 agreement, the advance paid by the plaintiff was Rs.20,000/-, which is about 5% of the consideration agreed and the plaintiff had the advantage of delivery of possession of vacant site to him under the agreement itself on 03-06-1989, according to his version. Though the defendant did not obtain the urban land ceiling clearance certificate and income tax clearance certificate to enable registration of the sale deed within three months from the date of the agreement as agreed under the agreement or even later and though the defendant did not execute and register a sale deed within the stipulated time of three months, the plaintiff did not make any demand in writing till 06-03-1992 when a lawyer’s notice was issued for specific performance. For 2 years 9 months, the plaintiff maintained a studied silence having enclosed the site with a compound wall and raised a thatched shed and kept a watchman in the property, according to his version. Even if the alleged investment for such activities by the plaintiffs was Rs.35,000/- as claimed in the plaint, the total he spent towards advance and such expenses was about 1/7th of the agreed consideration under the agreement, dated 03-06-1989. The balance sale consideration was not deposited by the plaintiff in any bank or in any other manner till the ex parte decree originally granted in this suit and the said amount was not even deposited into Court along with the plaint in spite of the professed readiness and willingness to perform his part of the contract by the plaintiff. The oral demands of the plaintiff to the defendant in the meanwhile were not corroborated by any independent evidence during trial and the plaintiff was not claimed to have made any efforts to get clearances concerning urban land ceiling or income tax. Even when the defendant gave reply notice and the plaintiff sent a rejoinder on 18-05-1992, the balance sale consideration was not kept in deposit anywhere to be straight away available to the defendant and the suit was filed after three years after the agreement immediately after summer vacation only for the relief of specific performance without any alternative relief claimed. 38. 38. The defendant, who admitted the execution of the agreement of sale claiming the same to be under the circumstances stated in the written statement and who disputed the delivery of possession of the property to the plaintiff, pleaded the responsibility for obtaining the clearance certificates to be on the plaintiff and she claimed that the plaintiff was never ready and willing to perform his part of the contract and never demanded the defendant to perform her part of the contract. It is true that it was only in the grounds of appeal that a reference was made to the tremendous increase of rates of house sites and the recognition of the market value of immovable properties or house sites in cities like Visakhapatnam in a number of judgments. The defendant specifically pleaded only in the grounds of appeal about being put in a most disadvantageous position and the plaintiff being placed in an unfair advantageous position, making wrongful gain by not paying the agreed price as agreed. The value of the property was also claimed to be Rs.5,00,000/- by the time of the agreement, in the grounds of appeal. 39. It was only during hearing of the appeal that Sri P. Satyanarayana, learned counsel for the appellant filed a memo into Court on 07-09-2007 stating that the market value of the site as per the basic value register is Rs.15,000/-per square yard and the value of 1500 square yards comes to Rs.2,25,00,000/-and the appellant/defendant offered to pay Rs.1,25,00,000/- in addition to the refund of advance of Rs.20,000/-to the respondent/plaintiff within eight months from the date of the order of the Court and the memo also stated that the basic value certificate is awaited and will be filed. 40. The respondent/plaintiff filed a memo on 14-09-2007 in response, stating that the subject property and adjoining property of 1500 square yards from the sister of the defendant were purchased by the Managing Partner of the family firm to enable all his six sons to carry on business at one place jointly enjoying the property and he claimed that the plaintiff never had any intention to part with the property or resell it for higher consideration, though the defendant tried her best to avoid execution of sale deed. The plaintiff was stated to have instructed to his counsel to persuade the Court on merits. 41. The plaintiff was stated to have instructed to his counsel to persuade the Court on merits. 41. Thus, the plaintiff did not traverse or contradict or deny the specific claim of the defendant in the memo, dated 07-09-2007 that the market value of the site as per the basic value register was Rs.15,000/-per square yard as on that date, nor did the plaintiff think it fit to suggest any ways and means of justly compensating the defendant with reference to escalation in price of the property between 03-06-1989 and 07-09-2007 i.e. in about 18 years. 42. A close perusal of the oral and documentary evidence and the judgment in the suit shows that the objections about the registration of the plaintiff firm, the valuation of the suit and the bar of limitation are not substantiated in any manner and the conclusions of the trial Court in favour of the plaintiff in this regard are but sustainable. 43. Similarly, on payment of the required stamp duty and penalty on the impounding of the document, nothing remains against the admissibility of Ex.A.2 agreement of sale, the execution of which is admitted by the defendant and her husband as D.Ws.1 and 2. The claims of P.W.1 corroborated by watchman P.W.2, supported by the recital in Ex.A.2 agreement of sale and visually presented with Ex.A.3 colour photograph regarding delivery of possession of the suit site to the plaintiff and construction of the compound wall by the plaintiff around the site and consequential possession and enjoyment of the same, cannot be considered to have been not probablised and the absence of any independent oral evidence or supporting documentary evidence for the defendant and her husband, examined as D.Ws.1 and 2, makes any contradictory claims insufficient to rebut the evidence for the plaintiff in this regard. The routine recital in Ex.B.2 draft sale deed produced in execution to enable obtaining regular sale deed through Court about the contingency of delivery of possession at the time of the registration of sale deed, may be an inadvertent inconsistency indulged in by the drafts man and cannot, in any manner, be construed as a conscious admission of absence of possession by the plaintiff. The trial Court was not also unreasonable in noting the inconsistency between the pleadings of the defendant and the oral evidence and not accepting the claim that the real sale consideration was Rs.5,00,000/-, out of which Rs.50,000/- was paid as advance. Intermittent change of counsel by the defendant herein during the course of the entire proceedings, appears to have resulted in varying stands, not quite consistent with each other, which may even have been due to not so consistent legal advice the defendant was receiving from time to time, but any such possibilities cannot add any credibility to the contentions of the defendant in this regard. Ex.A.2 agreement, executed by D.W.1, attested by D.W.2 her husband and her husband’s and her relatives, was not contradicted by examining two other attestors than D.W.2 and Ex.A.2 has to be, therefore, acted upon. However, notwithstanding the absence of any specific plea in the written statement, the positive evidence presented by D.Ws.1 and 2 is about Rs.5,00,000/- being the sale consideration and Rs.50,000/-being the advance paid, which claim acquires credibility from Ex.B.3 sale deed executed by the defendant’s sister in favour of the plaintiff on 03-06-1989, the same date as that of execution of Ex.A.2, in which the market value per square yard was taken as Rs.275/-. It may be true that even at that rate, the value of the suit property may be only Rs.4,12,500/- by that date, but the circumstance is more indicative of Ex.A.2 likely to be not reflecting the market value, as the purchase of 1500 square yards for Rs.3,80,000/- takes the rate per square yard only to Rs.253/- approximately and not to Rs.275/-, the rate at which the immediate adjacent site was admittedly purchased under Ex.B.3. 44. The specific contention of the defendant during the evidence through D.Ws.1 and 2 is that the value of the property was Rs.5,00,000/- at the time of Ex.A.2, Rs.10,00,000/-in 1992 and Rs.20,00,000/- by the time of the evidence. The disinclination of the trial Court to take cognizance of such claims due to the absence of any plea in the written statement may not be totally unjustified, but it will not be unjust or improper, if the Court were to take judicial notice of ever escalating prices of house sites, more so in cosmopolitan cities like Visakhapatnam. The disinclination of the trial Court to take cognizance of such claims due to the absence of any plea in the written statement may not be totally unjustified, but it will not be unjust or improper, if the Court were to take judicial notice of ever escalating prices of house sites, more so in cosmopolitan cities like Visakhapatnam. The astronomical and phenomenal sky rocketing prices of real estate in tune with the ever increasing inflation and cost of living, is a fact of life, which may require no formal proof, though it is true that there was no other corroborating evidence to D.Ws.1 and 2 in this regard. 45. The delay in giving effect to Ex.A.2 agreement due to the necessary urban land ceiling and income tax clearances not being obtained, is attempted by each party to be put at the other’s door and the responsibility for obtaining such clearances being on the defendant, may be more in tune with the ordinary and natural course of human events and if so, the plaintiff cannot be considered to have committed default in not tendering the balance of sale consideration when admittedly such clearances were not obtained, which are stated by the plaintiff to be a prerequisite for the registration of the sale deed. The notices exchanged are reiteration of respective interested claims and the defendant only responded when the plaintiff issued a notice and did not complain before about the plaintiff not obtaining the clearances or not paying the balance of consideration. Thus, the pleadings and evidence indicate, on broad human probabilities arising out of them, that the defendant executed Ex.A.2 agreement of sale in favour of the plaintiff in respect of the suit property for Rs.3,80,000/-, received an advance of Rs.20,000/- and delivered possession of the suit site to the plaintiff. There was no action by either party to obtain necessary clearances in respect of urban land ceiling and income tax and about 2 years 9 months after the agreement, the plaintiff made a demand in writing for the defendant performing her part of the contract, for which there was a reply and a rejoinder followed by the suit only for the relief of specific performance. While the escalation in the price of the suit site is a natural phenomenon, of which judicial notice can be taken, the memo filed by the defendant before this Court about the present value of the suit site being Rs.15,000/- per square yard as per the basic value register maintained by the registration department of the State Government, is uncontroverted and unrebutted and therefore, can be acted upon. 46. While the plaintiff cannot be non-suited on the ground of delay or limitation, unlike in S. Brahmanand v. K.R. Muthugopal (9 supra) there was neither any request from the defendant for postponing the performance to a future date or time nor was there any act of forbearance by the plaintiff in not insisting on performance being in convenient enjoyment of the suit site since the date of the agreement. It was only about 2 years 9 months after the agreement, under which only 1/19th of the sale consideration was paid, that the plaintiff was reminded of the need of demanding specific performance. While the delay by itself is no proof of abandonment or waiver of a right, leading to refusal of the relief of specific performance, the delay occasioned due to the inaction of the plaintiff in demanding specific performance will be a relevant circumstance in assessing any inequity caused to the defendant or prejudice resulting from the change of circumstances, in moulding the relief, as can be deduced from Mademsetty Satyanarayana v. G. Yelloji Rao (10 supra). As pointed out in M.L. Devender Singh v. Syed Khaja (11 supra), irrespective of the specifications in the contract, the question would still remain whether the Courts are relieved by the agreement between the parties of the duty to determine on the facts of a particular case whether the damages specified or left unspecified would really afford adequate compensation to a party. The jurisdiction of the Court in respect of discretionary specific relief must be exercised on sound and reasonable grounds guided by judicial principles keeping such duty in mind in respect of both parties. The jurisdiction of the Court in respect of discretionary specific relief must be exercised on sound and reasonable grounds guided by judicial principles keeping such duty in mind in respect of both parties. Unlike in Prakash Chandra v. Angadlal (12 supra) where there was no indication of any hardship to the defendants, which they did not foresee, by the performance of the contract, right from the evidence in the suit, the increasing price of the suit site was being brought to notice and though the plaintiff might have made some permanent constructions on the site, which makes redelivery of possession inequitable to the plaintiff, a judicious wayout for adequately compensating the defendant, should be worked out. Though the conduct of the plaintiff is not blemishless, there was, of course, nothing to positively indicate any absence of readiness and willingness to perform his part of the contract throughout, but still the present case is not like one in Akbar Ali v. Vinod Khanna (14 supra), wherein not only there was absence of any plea in the written statement and the absence of issue, but also absence of any evidence before the trial Court, and right from the evidence of D.Ws.1 and 2 before the trial Court, the grievance was about Ex.A.2 agreement not representing the market value even as on the date of the agreement and further about the increasing value of the suit site by the time of the evidence and arguments before the trial Court, the filing of the appeal and arguments before this Court. While the plaintiff was not as prompt in seeking specific performance as in the cases relied on by him, the laxity was equally on the part of the defendant who did not obtain the clearances, who did not demand the plaintiff to obtain such clearances and pay the balance and who responded only after a notice for performance was given after 2 years 9 months in spite of parting with the possession and enjoyment of the property. It is true that the plaintiff being put in possession was considered to be a circumstance that will result in hardship, in case specific performance is denied as in Boddu Satyavathi v. Boddu Ramakrishna Rao (20 supra). But that was a case where not only the plaintiff made improvements to the land after being put in possession but also paid major portion of sale consideration. But that was a case where not only the plaintiff made improvements to the land after being put in possession but also paid major portion of sale consideration. Here is a case where even if the version of the defendant in the evidence without a pleading were to be considered, what was paid was Rs.50,000/- out of Rs.5,00,000/-, that is, 10% of the sale consideration and as per the agreement Ex.A.2 relied on by the plaintiff, who dismissed the claim of Rs.5,00,000/- and Rs.50,000/-to be false, the advance paid was only about 5% of the consideration with the balance being deposited only after the ex parte decree while seeking execution of the said ex parte decree. Never before even an offer was made of keeping the amount available to the defendant by way of any deposit that can be withdrawn. 47. Hamsammal v. P.V. Thakkar (23 supra) is a case where Rs.5,002/- were paid in cash and Rs.32,680/- went towards discharge of two mortgages out of the consideration of Rs.55,000/-, but still possession of the property was not delivered and the defendant did not perform her part of the contract, due to which it was considered that there is not even a single circumstance to show any prejudice to the defendant in spite of, perhaps, steep rise in prices of immovable properties since the agreement in 1974. Payment of substantial portion of consideration and absence of possession were the obvious circumstances tilting equity in favour of the plaintiff therein. Similarly, in Ratan Pal Singh v. Kunwar Pal Singh (22 supra), the seller received Rs.35,000/- out of Rs.40,000/-as earnest money i.e. 7/8th of the projected value of the property as on the date of agreement of sale, due to which the decision in Kanshi Ram v. Om Prakash Jawal (3 supra) was distinguished by the Madras High Court stating that rise in prices of the property may not be the sole consideration in refusing the specific performance and the grant of alternative relief of damages for a sum of Rs.10,00,000/- as against the sale consideration of Rs.16,000/- by the Apex Court was distinguished to be due to the peculiar facts and circumstances of that case. Thus, it is clear that the peculiar facts and circumstances of each case should determine the manner of exercise of the equitable jurisdiction. Thus, it is clear that the peculiar facts and circumstances of each case should determine the manner of exercise of the equitable jurisdiction. That was why it was observed in Kanshi Ram v. Om Prakash Jawal (3 supra) that when the Courts get the equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both parties and the Court considered ordering specific performance to be unrealistic and unfair and accepted the offer of the defendant to pay Rs.10,00,000/- as an alternative relief, obviously due to rise in price of the property. 48. As held by a Division Bench of this Court in Sardar Amarjeet Singh v. Nandu Bai (1 supra), long and unexplained silence and inaction on the part of the plaintiff can be legitimately taken into account and the delay may be considered as bringing about a situation of inequity in ordering specific performance. The Division Bench noted that the precedents have taken notice of constant, sharp and continuous rise in the prices and values of urban properties since 1973 and the same will be one of the surrounding circumstances to be considered in granting relief. 49. As observed in K.S. Vidyanadam v. Vairavan (7 supra), the Court cannot be oblivious to reality— and there is constant and continuous rise in the values of urban properties— propelled by large scale migration of people from rural areas to urban centres and by inflation. That was also a case where the plaintiff did nothing to have the contract performed and had paid only Rs.5,000/- as against the total consideration of Rs.60,000/- (which is 1/12th as against 1/19th herein of the total consideration) and issued suit notice 2½ years after the agreement (here it is 2 years 9 months). The Apex Court, therefore, observed that maybe the parties knew of the said circumstance of rise in prices, which cannot be a ground for denying specific performance, but while exercising discretion, the Court should bear in mind this aspect also and delay coupled with substantial rise in prices was observed to have brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff. Even if the plaintiff herein stands on a slightly different footing on being put into possession of the property and developing the same, he cannot, as he is attempting to do, seek to exclude all equitable considerations, the responsibility for which cannot be totally disassociated from his own conduct. 50. The principle laid down in Nirmala Anand v. Advent Corpn. Pvt. Ltd. (8 supra) by Hon’ble Sri Justice D. Raju recognizing the doctrine of comparative hardship need to be followed and in the process of balancing equities and in order to do justice to the parties, deposit of a further sum in addition to the consideration stipulated in the agreement was held just and proper following the earlier precedents from the Apex Court. Payment of an appropriate additional sum by the plaintiff should, therefore, be directed to secure the ends of justice and even Hon’ble Sri Justice Ashok Bhan noted in the said decision that escalation of price during the period may be a relevant consideration under certain circumstances for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him, which would depend on the facts and circumstances of each case, though such compensation for escalation of price of the land during the pendency of the proceedings in Court at different levels, is not an absolute rule. Though the defendant herein did not faithfully submit herself to the agreement and contested the suit and preferred this appeal, there was equal absence of promptness on the part of the plaintiff in demanding performance or paying the balance consideration, due to which, notwithstanding the unacceptability of the defence version otherwise, the prejudiced and disadvantageous position in which the defendant is placed, has to be appropriately and equitably compensated, of which the plaintiff cannot complain due to the title being conferred on the extremely valuable property in his possession, for which he paid only a pittance till now. 51. The learned counsel for the defendant attempted to canvass that the market value of the property is, in fact, Rs.30,000/-per square yard as of now, which cannot be acted upon without any material even if it is true that the market values of urban properties are always much more than those mentioned in the basic value register maintained by the Government. Rs.15,000/- per square yard is stated to be the value of the suit site as per the basic value register as per the uncontroverted memo filed by the defendant before this Court, which, if taken as the basis, will make the property worth Rs.2.25 crore by the date of filing of the memo in 2007 and further escalation since then till now might also have been there. At any rate, notwithstanding the fluctuations on the economic front, the value would not have decreased and as already stated, as per the evidence of D.Ws.1 and 2, it was only 1/10th of the agreed sale consideration of Rs.5,00,000/-that was paid as advance, while as per Ex.A.2 agreement, it was only about 5% of the agreed sale consideration that was paid as advance. Admittedly, nothing else was received by the defendant so far towards the value of the suit site. Even if the alleged expenditure towards constructing a compound wall and raising a thatched shed at Rs.35,000/- were to be taken into consideration, still it is a total of Rs.55,000/- that was spent by the plaintiff and the compound wall and thatched shed were for the benefit of the plaintiff and not the defendant and they remain with the plaintiff. 52. In any view, it can be considered that the maximum that the defendant can be said to have received towards the value of the suit site as on the date of the agreement while parting with possession, was between 5% and 10% of the market value of the land then. If proportionately calculated, out of the value of the suit site as per the basic value register by the time of the memo, dated 07-09-2007, the balance, which the defendant should receive towards such value, would be something more than Rs.2.00 crore. If proportionately calculated, out of the value of the suit site as per the basic value register by the time of the memo, dated 07-09-2007, the balance, which the defendant should receive towards such value, would be something more than Rs.2.00 crore. As the defendant was also at fault in not securing the clearances or demanding the plaintiff to secure such clearances or demanding performance of the plaintiff’s part of the contract and as the defence version set up to defeat the claim for specific performance was also not found acceptable on broad human probabilities and as on the other hand, the plaintiff conveniently enjoying the property by paying off a nominal percentage out of the agreed sale consideration, was blissfully silent for 2 years 9 months and had given a notice and filed the suit on the verge of limitation and even then he had not deposited the sale consideration till after filing of the execution petition after ex parte decree, either party should not be allowed to have the benefit of the escalation in price of the suit site wholly to herself or himself. Dividing the benefit of such escalation in price approximately equally between the two, appears, on facts and circumstances of the case, to answer the requirements of principles of justice, equity and good conscience and therefore, if the plaintiff were to be directed to pay Rs.1.00 crore to the defendant as a precondition for having the relief of specific performance, the same would meet the ends of justice and the said amount should be in addition to the balance of Rs.3,60,000/- sale consideration payable under Ex.A.2 to the defendant. 53. The plaintiff, who had developed and improved the property at some expense since being put in possession for the convenient stay and business of his six sons, need not be disturbed from possession at this distance of time by accepting the offer of the defendant, which again will work hardship to him and if either party nurses a feeling of being put to loss, the same is traceable to their respective conduct. Equitably balancing the rights and interests of both parties, the points are answered accordingly concluding that the plaintiff has to be directed to pay Rs.1.00 crore to the defendant in addition to the balance of sale consideration of Rs.3,60,000/- in order to have the relief of specific performance against the defendant. Equitably balancing the rights and interests of both parties, the points are answered accordingly concluding that the plaintiff has to be directed to pay Rs.1.00 crore to the defendant in addition to the balance of sale consideration of Rs.3,60,000/- in order to have the relief of specific performance against the defendant. Point No.3: 54. While disposing of the appeal as per the above conclusions, the parties can be directed to bear their own costs in both the suit and the appeal in view of the conduct of both parties being not free from blame. 55. In the result, the judgment and decree in O.S. No.93 of 1993 on the file of the Principal Senior Civil Judge’s Court, Visakhapatnam, dated 18-06-2001 are modified by directing the plaintiff either to deposit to the credit of the suit or to pay direct to the defendant Rs.1.00 crore (Rupees one crore only) within two months from today, in addition to Rs.3,60,000/- (Rupees three lakh and sixty thousand only) payable to the defendant towards the balance of sale consideration under the suit agreement of sale, dated 03-06-1989 and on such deposit or payment, the defendant shall execute and register a sale deed in favour of the plaintiff in respect of the suit schedule property as per the suit agreement of sale, dated 03-06-1989, in default of which, the plaintiff is at liberty to get the sale deed so executed through Court. The plaintiff shall bear the cost of execution and registration in either event and the defendant is at liberty to withdraw Rs.1,03,60,000/- (Rupees one crore three lakh and sixty thousand only) without furnishing any security, if the amount is deposited by the plaintiff to the credit of the suit. The suit is decreed and the appeal is allowed accordingly without costs.