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2010 DIGILAW 794 (KER)

Rosy Devassy v. State Bank Of Travancore

2010-10-13

S.S.SATHEESACHANDRAN, THOTTATHIL B.RADHAKRISHNAN

body2010
Judgment :- Thottathil B.Radhakrishnan, J. 1. This appeal is by the plaintiff in a suit for specific performance of contract. Plaintiff's case: 2. The plaintiff is the widow of late K.C. Devassy who mortgaged the plaint schedule property to the Indian Insurance and Banking Corporation to secure repayment of a loan. That creditor got a decree and purchased the suit property in court auction in O.S. No.54 of 1124 M.E. Later, it assigned the property to the Travancore Forward Bank Ltd, which was later amalgamated with the first defendant State Bank of Travancore, which has a branch in Alwaye, arrayed as the second defendant. Stating that she has sentimental attachment to the property lost by her husband in court auction, the plaintiff approached the second defendant with an offer to purchase the property for a consideration of Rs.2000/- per cent. According to the plaintiff, though defendants 1 and 2 accepted that offer and there is a concluded contract for sale, under which an amount of Rs.1 lakh was received as advance, they failed to satisfy her about the exact extent of the land and also the encumbrances and liabilities thereon in the form of leases, kudikidappu rights etc and therefore, she is entitled to specific performance of the agreement for sale. Hence she sought that defendants 1 and 2 be directed to ascertain the actual extent and to furnish all the relevant title deeds and execute the sale deed on receiving the consideration at the rate of Rs.2000/-per cent for the actual extent seen on measurement. The defence: 3. Hence she sought that defendants 1 and 2 be directed to ascertain the actual extent and to furnish all the relevant title deeds and execute the sale deed on receiving the consideration at the rate of Rs.2000/-per cent for the actual extent seen on measurement. The defence: 3. In this appeal we are not concerned with the defence offered, except by defendants 1 and 2, who, inter alia, challenged the maintainability of the suit and contended that the initial offer of the plaintiff by sending a petition to the Chairman of the first defendant bank on 18.3.1985, through the second defendant branch, requesting that the properties may be conveyed to her children, was made by her being well aware that a match factory occupies a part of the land in question under a registered rent deed of 1958 and that there are three Kudikidappukars; that the plaintiff, by later communication, agreed to purchase the property in "as is where is in condition"; that there is no agreement to measure out the property and that the sale price was fixed at Rs.4,40,000/- and the second defendant had required the plaintiff on 23.2.1986 to deposit Rs.4,40,000/- towards the full value of the property; that the plaintiff had, by letter dated 19.3.1986, requested for three months time to remit that amount and even in that letter she made no grievance, nor stated any condition contradicting the direction of the bank to pay such amount; that on 7.4.1986, the plaintiff deposited Rs.1 lakh towards purchase price and requested the second defendant to provide her with the copies of the title deeds, lease deed and other documents and requested for three months to pay the balance; that since the plaintiff repeatedly failed to make such payment, the second defendant ultimately, on 19.3.1987, demanded the plaintiff to make the payment on or before 31.3.1987 and since the plaintiff did not remit the balance, instead, as per letter dated 8.6.1987, raised untenable contentions and wanted to have the purchase price fixed on the basis of actual measurement, the second defendant sent a reply on 1.9.1987 repudiating the allegations, cancelling the agreement on account of the non-performance by the plaintiff and also returning therewith, the amount of Rs.1 lakh deposited with the second defendant; however that, the plaintiff returned that cheque with a covering letter dated 7.9.1987. Defendants 1 and 2 contended that the agreement between the parties was for the sale of the property in "as is where is in condition" and the plaintiff is not entitled to get the property measured out and have the consideration fixed on the basis of the actual extent available on measurement and that the plaintiff had committed breach and is not entitled to specific performance of the contract and that she has not come to court with clean hands. Findings of trial court: 4. The court below held that though no specific date was fixed for performance of the contract between the parties and time was not the essence of the contract, the plaintiff was not prepared to stand by the agreed term to purchase the property in "as is where is in condition"; that the plaintiff committed breach of contract and that the cancellation of the contract was wholly justified. It was further held that even at the end of trial, the plaintiff is found to be not ready and willing to perform her part of the agreement. The suit was accordingly dismissed with costs of defendants 1 and 2. Arguments for the appellant: 5. In support of this appeal, Adv.S.Sreekumar, the learned counsel for the appellant, argued that the decree and judgment of the court below is contrary to law, wrong on facts and is the result of mis-appreciation of evidence and erroneous reasoning. Among other things, it is argued that the plaintiff was not in possession of the property and cannot, therefore, be attributed with knowledge of the exact extent and nature of the property, as also the liabilities and encumbrances in the form of leases, possession by Kudikidappukars and the actual extent of land covered under such holdings. It is further argued that the contract between the parties was for sale of the available extent of land for a consideration fixed at the rate of Rs.2000/-per cent and the finding to the contrary, particularly the view that the total consideration was fixed and the agreement was for purchase in "as is where is in condition" is contrary to evidence. It is also argued that the finding that the plaintiff was not ready and willing to perform her part of the contract and the reasons stated for such finding are wrong. It is also argued that the finding that the plaintiff was not ready and willing to perform her part of the contract and the reasons stated for such finding are wrong. Adverting to the evidence on record, the learned counsel very persuasively pointed out that being a public authority, the bank ought to have given due weightage to the sentimental attachment that the plaintiff has to the property that earlier belonged to her late husband and that the court below ought to have held that the plaintiff's offer which was accepted by the bank was for purchase of the available extent for consideration at the rate of Rs.2000/-per cent, particularly when the land included marshy patches and areas occupied by a match factory, as also parcels held by three Kudikidappukars. The learned counsel argued that the court below ought to have exercised the discretion by directing defendants 1 and 2 to perform the contract by receiving the consideration at the rate of Rs.2000/-per cent for the actual extent available on measurement and after satisfying the plaintiff of the encumbrances and liabilities, also by handing over the documents relating to those liabilities. Arguments for respondents 1 and 2: 6. Sr.Adv.T.Krishnan Unni, assisted by Adv.K.K.John, argued on behalf of respondents 1 and 2 that the unquestionable chronological sequence of events proved by the documentary evidence would categorically show that the plaintiff had agreed to purchase the entire property in "as is where is in condition" and that the consensus between the parties was for such a sale. It is pointed out that there was no occasion for defendants 1 and 2 to ask for an advance and the remittance of Rs.1 lakh made by the plaintiff was not at the request of the bank but on her own volition and in support of her request for more time to pay the balance amount of Rs.3.40 lakhs. It is argued that the consideration was not fixed by agreeing that the extent would be measured out and that the plaintiff need pay only at the rate of Rs.2000/-per cent for the actual extent available. The payment of price was to be for the entire property as covered by the document in favour of the bank, it is argued. It is argued that the consideration was not fixed by agreeing that the extent would be measured out and that the plaintiff need pay only at the rate of Rs.2000/-per cent for the actual extent available. The payment of price was to be for the entire property as covered by the document in favour of the bank, it is argued. The learned counsel further pointed out that there is nothing on record which could disturb the findings of the court below that the plaintiff was not ready and willing to perform her part of the contract in terms of the agreement between the parties and that this lack of readiness and willingness was evident even at the conclusion of the trial. It is further argued that at this distance of time, in 2010, judicial discretion may not be exercised to enforce the agreement even if it is found to be as pleaded by the plaintiff since it would be wholly inequitable to compel the first defendant, a statutory bank dealing with public funds, to part with valuable assets for a sum that would be paltry as of now. It is pointed out that this court had required the bank to state the price at which the plaintiff could purchase the property now and the bank had filed a statement that the minimum reserve price that the appropriate authority of the bank has fixed for the sale of the property in question, as of now, is Rs.9 crores. Consideration by Court: 7. On 18.3.1985, the plaintiff wrote Ext.B1 (A6) letter to the Chairman of the Board of Directors of the first defendant Bank introducing herself as the widow of late K.C.Devassy and making reference to the transaction under which the property of nearly 3 acres offered as security, ultimately reached the hands of the first defendant bank. She stated that all those things happened 40 years ago and with the passage of time, her children have grown up and have started earning and they have the intention and desire to clear off the entire dues of their late father. She stated that she made enquiries about the present position of the property and it is understood that the properties are lying idle and the bank is not doing anything towards the improvement of the property. She stated that she made enquiries about the present position of the property and it is understood that the properties are lying idle and the bank is not doing anything towards the improvement of the property. She further stated that as the debts in favour of the bank are time barred, she believes that the properties sold out (and) in the possession of the bank cannot be recovered through any legal means and that her children have the desire to re-establish the industry of their father after clearing all the dues, intents, court costs etc. which were incurred by the bank. Accordingly, she requested that her children may be allowed to pay off the entire debts due to the Bank in satisfaction and to re-convey "our lands in Sy. No. 308/4 of Alwaye Village" in favour of her seven children, after receiving all the dues to the bank. 8. After discussions at the level of the second defendant branch following Ext.B2, and in the light of Ext.B3 (A7) issued from the branch to the effect that the property can be disposed off to the plaintiff at the current market value, the plaintiff wrote Ext.B4 (A8) expressing her willingness to purchase back the land and requesting that the value of the land may be decided taking also into consideration the facts enumerated by her in that letter. She stated that about 50% of the area of the land extending more than two acres "is now occupied by a match factory and two tenants" and that her children would not be able to come into occupation of that area in the near future. She also pointed out that the rent of the match factory is very meagre and is also in default for years. She stated that the only area which her children can readily occupy after the purchase will be the front portion of the plot, which is low-lying and marshy and was once paddy field. She projected that huge amounts have to be spent for filling the marshy area with gravel and soil to make it fit for any house construction. She stated that the only area which her children can readily occupy after the purchase will be the front portion of the plot, which is low-lying and marshy and was once paddy field. She projected that huge amounts have to be spent for filling the marshy area with gravel and soil to make it fit for any house construction. She accordingly requested the bank to fix the market value for the land by giving a considerable concession realising all the aforesaid facts, to spare her from a possible agony over her effort in getting back the land, which she hopes for, owing to her family's deep-rooted sentimental attachment to that. She concluded by saying that she sincerely hopes to hear from the bank as early as possible about the market value that the bank would fix for the land with due concessions. We may specifically note that the plaintiff's request was not to exclude the portion of the land occupied by the match factory by the tenants. All that she wanted was that the market value for the land be fixed taking all such factors also into consideration. Obviously therefore, it was not her offer to purchase only the land excluding those with the tenants and the portion occupied by the match factory. She proposed to buy the entire parcel on a price to be fixed taking all the facts projected by her also into consideration. 9. Making reference to the aforesaid Ext.B4, Ext.B5 letter was issued from the second defendant branch to the plaintiff on 19.8.1995, requesting her to send her quotations to the bank showing the maximum price she offers for the property in as is where is in condition. In answer thereto, the plaintiff wrote Ext.B6 to the second defendant branch on 16.12.1985 reiterating her descriptions of the match factory, the presence of tenants and the requirement of huge investment to convert the remaining marshy land to make it habitable. Ultimately, the plaintiff stated in that letter that "taking into consideration all these liabilities and the huge expenditure to develop the land, I offer a price of Rs.2000/-for a cent to the above land, as my family's sentimental attachment to the plot is so deep". Ultimately, the plaintiff stated in that letter that "taking into consideration all these liabilities and the huge expenditure to develop the land, I offer a price of Rs.2000/-for a cent to the above land, as my family's sentimental attachment to the plot is so deep". She also offered that if the price quoted by her is not acceptable to the bank, she is prepared to purchase the land at a price, which may be fixed by the Revenue authorities. 10. Thereupon, Ext.B7 was issued by the second defendant branch requiring the petitioner to state whether she is interested in purchasing the whole property (including the portion occupied by the match factory) or the other piece of land measuring about one acre and sixteen cents. She was also required to state whether she is prepared to purchase the land in "as is where is in condition". The second defendant branch also stated that the matter will be taken up with the head office of the first defendant bank on getting clarification on the aforesaid points. In answer to that, the plaintiff issued Ext.B8 on 20.1.1986 seeking excuse for the delayed reply and stating as follows: ".............. I am prepared in purchasing the whole property including the portion occupied by Alwaye Match Works. I also inform you that I am prepared to purchase the land in as-is-where-is condition with two other tenants in the plot. Expressing my heartfelt gratitude for very kindly considering my appeal, I request you to take an early decision on the issue and help me to fulfill a long cherished dream of my family." (underlined to emphasise) 11. Making reference to her aforesaid offer dated 20.1.1986, the second defendant branch issued Ext.B9 requiring the plaintiff to remit the agreed sale consideration of Rs.4.4 lakhs in full, i.e. at Rs.2000/-per cent for 2.2 acres of land which was the extent available as per the bank's records. She was intimated that on receipt of the amount the branch will place the plaintiff's offer to the Executive Committee in its next meeting and in case the executive committee does not accept the recommendations of the branch, the amount will be refunded to the plaintiff. It was specifically stated that "If the above condition is acceptable to you, please remit of the amount of Rs.4.4 lacs on or before 15th March 1986. Please treat the matter as most urgent". 12. It was specifically stated that "If the above condition is acceptable to you, please remit of the amount of Rs.4.4 lacs on or before 15th March 1986. Please treat the matter as most urgent". 12. It appears that in the meanwhile, the offer of the plaintiff also gained the attention of the Executive Committee of the first defendant bank and thereupon the second defendant issued Ext.B10 (A9) on 12.3.1986 to the plaintiff stating that the offer in her Ext.B8 letter dated 20.1.1986, for purchasing 2.2 acres of land at Rs.2000/- per cent has been approved by the Executive Committee of the first defendant bank. She was thereby requested to remit the amount of Rs.4.4 lakhs, not later than 20.3.1986 and to treat the matter as most urgent. 13. Responding to the above, the plaintiff issued Ext.B11 (A11) letter dated 19.3.1986, thanking the bank for taking a favourable decision on her offer to purchase the land and requesting for some more time to remit the amount as she has to raise Rs.4.4 lakhs. She sought for three months' time. Therefore, there was a clear and unambiguous contract between the parties as to the total consideration to be paid and as to the identity of the property in "as is where is in" condition as evidenced by Ext.B8. 14. The aforesaid materials would clinchingly show that the plaintiff approached the bank to retrieve the land that her husband had lost in the court sale and there was no mistake of fact between the parties as to the identity of the property which the plaintiff offered to purchase. What she wanted, to put it in her words, was to obtain reconveyance of whatever her husband had mortgaged under the transaction that ultimately led to the court auction and the subsequent assignment in favour of the predecessor of the second respondent bank. In fact, even the first representation made by her to defendants 1 and 2 through Ext.B1 (A6) was that her children have the intention and desire to clear off the entire dues of their late father and get back the property. The correspondence would clearly show that the plaintiff was well aware of the fact that at one part of the land, there was a match factory covered by a registered lease deed and certain parcels were in the possession of Kudikidappukars. The correspondence would clearly show that the plaintiff was well aware of the fact that at one part of the land, there was a match factory covered by a registered lease deed and certain parcels were in the possession of Kudikidappukars. She wanted the price to be fixed taking into consideration all those liabilities. She was also aware that a part of the land was marshy and had to be filled up to be put to use to her convenience. When Ext.B7 was issued to her requiring her to express whether she intends to purchase the entire land and also take it in 'as is where is in condition', she issued Ext.B8 expressing that she intends to purchase the entire land, including the piece on which the match factory stands and also that she would take the property in as is where is in condition. This is the clear expression in Ext.B8 and is inexcusably, of the essence of the contract between the parties. The consensus regarding the identity of the property was so certain that it did not survive for any further bargain. It was accordingly that the bank accepted the plaintiffs offer to purchase the entire property at the rate of Rs.2000/- per cent. The initial categoric offer, including the opening up of the negotiations by the plaintiff, was that she wanted to get back the entire property originally mortgaged by her late husband. Therefore, the bank had no reason to doubt her intentions and the bank offered to sell the entire property by fixing the price for the land in terms of the documents available with the bank, by determining the total consideration at Rs.4,40,000/-. The transaction evidenced by the documents would categorically show that the agreement was one for sale for a consolidated consideration of Rs.4.4 lakhs and there was no agreement between the parties that the price for the sale would be fixed on the basis of the extent of land actually available on measurement. 15. However, on 7.4.1986, the plaintiff issued Ext.B12 requesting the second defendant branch to provide her with copies of the original document in the name of her late husband, rent deed of the match factory, judgment in O.S.54/1124, encumbrance receipts, village land tax receipts and a copy of the Bank's Board Resolution. 15. However, on 7.4.1986, the plaintiff issued Ext.B12 requesting the second defendant branch to provide her with copies of the original document in the name of her late husband, rent deed of the match factory, judgment in O.S.54/1124, encumbrance receipts, village land tax receipts and a copy of the Bank's Board Resolution. She also stated that she is remitting Rs.1 lakh with the bank being an advance for the release of the land. There is no shred of evidence in support of the plaintiff's plea that the bank had received the amount of Rs.1 lakh as advance for the transaction of sale. There is no material on record to evidence that the payment of Rs.1 lakh was as advance and that such payment of advance was part of the bargain between the parties. In fact, there is no evidence at all to show that the bank had, at any time, demanded the plaintiff to make any such payment of Rs.1 lakh. Such amount paid by her, as stated by her in Ext.B12, cannot be treated as payment of any amount as advance on the basis of any consensus between the parties in that regard so as to form the consideration for the agreement for sale. The bargain between the parties did not include any condition that the bank would receive any part consideration. The repeated correspondence by the bank, in that regard, would clearly show that it had always insisted that the plaintiff shall make the entire payment of Rs.4,40,000/-in one go and that the question of sale would arise only on payment of such amount. 16. On 17.6.1986, Ext.B13 (A17) letter shown to be signed by K.M.Roy on behalf of the plaintiff was sent to the second defendant branch reiterating that three months' time more may be granted for the full remittance of the amount. Plaintiff also reiterated the request to provide her with the copies of various documents, deed and court judgments. In that letter, through her representative who signed it, the plaintiff appears to have, for the first time, taken a different stand, to the effect that the matter could be finalised and payment made only after examining the documents. 17. Plaintiff also reiterated the request to provide her with the copies of various documents, deed and court judgments. In that letter, through her representative who signed it, the plaintiff appears to have, for the first time, taken a different stand, to the effect that the matter could be finalised and payment made only after examining the documents. 17. Thereafter, Exts.B14 dated 5.8.1986 and B15 dated 13.10.1986, issued by the second defendant branch requiring remittance of the balance sale consideration immediately, as also stating the steps being taken by the bank to provide the documents, were ultimately replied only on 28.11.1986 making reference to certain documents, but in no manner countenancing the bank's repeated requests that the balance consideration be remitted. 18. Thereupon the second respondent branch issued Ext.B15 (a) dated 2.12.1986 referring to the earlier communications and requiring that the balance amount of Rs.3.40 lakhs in terms of the plaintiff's letter dated 17.6.1986 be remitted immediately. The plaintiff continued with the attempt to rake up the issue regarding the non-availability of the documents and stated in her Ext.B17 letter dated 22.12.1986 that she had remitted an advance of Rs.1 lakh anticipating that all the documents would be made available to her immediately and that the amount so paid by her is held up in the bank without any interest for many months and that she will be making a formal request to the bank to give her eligible interest on that amount, hoping that the bank will take a kind and just decision in the matter. By that letter she assured the bank that she will remit the balance amount immediately after she receives all the documents and examines them. 19. Ext.B18 dated 14.1.1987 was thereupon issued by the second defendant branch to the plaintiff stating that the documents required by her are available in the branch and that she may collect the documents after paying the balance of Rs.3.40 lakhs. It was specifically stated that although the plaintiff had promised to remit the balance of Rs.3.40 lakhs within three months from 19.3.1986, she had not remitted the amount as promised. It was further stated that the bank makes it clear that they cannot wait indefinitely. The plaintiff was accordingly requested to remit the sale consideration on or before 31.1.1987. 20. It was specifically stated that although the plaintiff had promised to remit the balance of Rs.3.40 lakhs within three months from 19.3.1986, she had not remitted the amount as promised. It was further stated that the bank makes it clear that they cannot wait indefinitely. The plaintiff was accordingly requested to remit the sale consideration on or before 31.1.1987. 20. Though the documents were received by the son-in-law of the plaintiff on 15.1.1987, as evidenced by Ext.B19, the amount was not remitted. Instead, on 23.1.1987, that is, after collecting the documents from the bank, the plaintiff addressed Ext.B20 letter to the second defendant branch (delivered by ordinary post on 27.1.1987, going by the inward seal of the bank), making reference to Ext.B18 letter dated 14.1.1987, and stating, among other things, that it is painful to insist that she remits the balance amount in full, even without the bank supplying the vital documents and measuring the land. She thereby requested the bank to make arrangements for the supply of the documents mentioned in that letter, for the measurement of the land and preparation of the draft deed, so that she can remit the balance amount immediately. 21. The stand taken by the plaintiff in Ext.B20 that the land has to be measured runs clearly contrary to the specific understanding that the land would be sold in "as is where is" condition and as per records of the bank, the extent is 2.2 Acres and the total amount to be paid by the plaintiff was Rs.4.40 lakhs not later than 20.3.1986. This term in Ext.A9 (B10) virtually stands conceded to by the plaintiff even when she wrote Ext.B11 (A11) by stating that she needs some time to raise Rs.4.40 lakhs for the purpose as suggested by the bank and she need three months' time for full remittance of the amount. Obviously therefore, the stand taken in Ext.B20 is nothing but a measure adopted in January, 1987 to wriggle out of the commitment that was earlier made in March, 1986, that too, by requesting three months' time therefrom to make full remittance of the amount. 22. As per Ext.B21 (A24), the plaintiff appeared to stick on to the stand demonstrated by her by the issuance of Ext.B20. 23. 22. As per Ext.B21 (A24), the plaintiff appeared to stick on to the stand demonstrated by her by the issuance of Ext.B20. 23. This situation led the bank to issue Ext.B22 (A18) on 19.3.1987, stating that if the plaintiff is interested in remitting the balance amount as per the offer, she is requested to remit the same on or before 31.3.1987. To this, stating the requirement for the rent deed and other documents, she, also, went to the extent of saying that she suspects some foul play in the mysterious disappearance of the rent deed of the match factory, which, the bank said, was apparently misplaced at that point of time. A reading of Ext.B23 (A20), in the context of the proceeding conduct of the plaintiff as aforequoted, would categorically show that the plaintiff was only attempting to wriggle out of her offer to purchase the property for the amount of Rs.4.40 lakhs which was fixed at her instance at an earlier point of time. There is nothing discernible even at that stage which demonstrated that the plaintiff had been ready and willing to perform her part of the contract. 24. This led the bank to issue Ext.B24 (A21), whereby, the rent agreement between the predecessor bank and the match factory was also forwarded to the plaintiff. Even in that letter dated 1.6.1987, the plaintiff was called upon to deposit the balance amount of Rs.3.40 lakhs within 30 days from the receipt of that letter. 25. Ext.B25 (A23), followed by Ext.B35, would show that when the plaintiff again required on 22.7.1987 for a copy of the aforesaid rent deed of the match factory, the bank issued that by giving an additional copy of the rent deed to the plaintiff's son-in-law Lawrence.D.Cunha. Thereafter, the plaintiff started again complaining about the requirement to measure out the property and reiterated that she is willing to pay the balance and take assignment of the property on satisfaction of the 'obligations' which she enumerated in the different paragraphs in Ext.B26. A reading of Ext.B26, as a whole, would definitely satisfy on common prudence that the attempt of the plaintiff is only to keep reiterating her complaints about the measurements etc. A reading of Ext.B26, as a whole, would definitely satisfy on common prudence that the attempt of the plaintiff is only to keep reiterating her complaints about the measurements etc. and wriggle out, or rather, keep the issue of purchase of property in question alive rather than finish the transaction and take the property which, according to her, is a property lost by her late husband. 26. Ext.B26 was followed by Ext.B27 by the bank, stating that the plaintiff had not deposited the balance sale consideration of Rs.3.40 lakhs and finalised the sale. The bank thus informed that the acceptance of the plaintiff's offer by the bank duly cancelled as on 31.8.1987. Along with B27, the Bank returned the amount of Rs.1 lakh by cheque dated 1.8.1987. 27. As per Ext.B28, the plaintiff refuted the stand of the bank and criticized the cancellation of the agreement. She thereupon returned the amount of Rs.1 lakh to the bank. 28. Following the aforesaid, we see that Ext.B34 was issued on behalf of the bank to the plaintiff seeking her to specifically advise the bank as to whether she is interested in purchasing the entire area of the property, including the portion occupied by the match factory or the other piece of land lying adjacent to the match factory, measuring about one acre and sixteen cents at a price of Rs.2,000/-per cent in 'as is where is in condition', with all the tenants therein and that if no reply is obtained, it would be presumed that she was not interested in purchasing the property. This was followed by Ext.B35 by the bank, requesting the plaintiff to remit further amount of Rs.3.40 lakhs or take it that the offer made by her would automatically stand cancelled. 29. With the aforesaid evidence on record, it has necessarily to be held that the court below was right in holding that the bargain between the parties was that a consideration of Rs.4.40 lakhs was fixed in respect of the entire property and it was fixed not on a centage basis so as to have it modified in accordance with the actual extent of measurement. The said amount of Rs.4.40 lakhs was fixed as a consolidated sale price irrespective of the liabilities or the extent over which the plaintiff has interest. The said amount of Rs.4.40 lakhs was fixed as a consolidated sale price irrespective of the liabilities or the extent over which the plaintiff has interest. We may also note that even if the arguments made on behalf of the appellant is to the contrary, that may only tend to show that there was a mistake of fact in the agreement, in which event, the transaction cannot be treated as a contract that is enforceable in law. 30. For the aforesaid reasons, we do not find any error in law or in the appreciation of evidence by the court below. Hence, we do not find any ground to interfere with the impugned decree and judgment. In the result, the appeal fails. The same is accordingly dismissed with costs of respondents 1 and 2 (defendants 1 and 2).