Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 1097 (KER)

Kochammu, Since Died, Lrs v. Kumaran

2017-07-31

K.RAMAKRISHNAN

body2017
JUDGMENT : 1. The defendant in OS.No.301/1986 on the file of the Principal Munsiff Court, Thrissur is the appellant herein. The suit was one filed by the plaintiff for specific performance of the agreement for sale entered into between the plaintiff and the defendant. The case of the plaintiff in the plaint was that on 11.10.1985, the plaintiff and the defendant entered into an agreement to sell in respect of 54 cents of land belonging to the defendant comprised in Sy.No.119 part of Pottor village and both the parties agreed that the plaintiff would purchase the property for Rs.223/- per cent and paid an advance amount of Rs.1,000/- to the defendant on that day. It is also agreed between the parties that the document had to be executed on or before 11.12.1985 on receiving balance sale consideration payable for the transaction. The defendant had also undertaken to furnish the back documents and the encumberence certificate relating to the property and also to satisfy the plaintiff about the extent of the property after measuring the same at her expenses. According to the plaintiff, he was always ready and willing to perform his part of the contract and he is continued to be so as well. The plaintiff repeatedly requested the defendant to furnish the back documents and also to measure the property as per the agreement. He sent a notice on 22.11.1985 calling upon the defendant to perform her part of the contract and execute the sale deed. After receipt of the notice, the defendant sent reply with false allegations. It is also alleged in the reply notice that she came to know only recently that 7 1/2 cents of land belonging to her out of 54 cents was in Sy.No.120 and according to the plaintiff, the allegation is false and incorrect. The plaintiff sought permission to deposit the balance consideration of Rs.11,042/- and sought decree for specific performance of the agreement of sale dated 11.10.1985 and in the alternate for return of Rs.1,000/- and also damage to the tune of Rs.1,000/- totaling an amount of Rs.2,000/- payable by the defendant with interest at 12% per annum in case the court felt that specific performance of contract was not possible. Hence the suit. 2. Hence the suit. 2. The defendant entered appearance and filed written statement admitting the execution of the agreement dated 11.10.1985, the terms and conditions mentioned therein and receipt of the advance amount of Rs.1000/-. She denied the allegation that the plaintiff was always ready and willing to perform his part of the contract. In fact, he had sent a notice prior to the stipulated time in the agreement with a view to extent the term of the contract for getting execution of the document. He had suppressed material facts and made false allegations in the plaint. In fact, the defendant was always ready and wiling to perform her part of the contract. On 29.10.1985, the property was measured by the Village Assistant, Pottor in the presence of the plaintiff and he prepared a rough sketch of the property and handed over the same to the plaintiff. On measurement of the property, it was revealed that an extent of 71/2 cents of land was comprised in Sy.No.120 and this fact was known to the defendant only on measurement, but this property also comprised within the four boundaries of the property belonging to the defendant and it has been in her actual possession and enjoyment. The plaintiff also noticed this aspect when the measurement was done by the Village Assistant. The property of the defendant originally belonged to her husband's family and by change of hands, she became the owner of the property. On coming to know about the discrepancy in the survey number, the plaintiff was not willing to perform his part of contract and he had sent a registered notice suppressing this fact to which the defendant sent a reply showing the real state of affairs. Though he received reply notice on 7.12.1995, he was not ready and willing to perform his part of the contract. On 11.12.1985, the defendant was present in the Registrar's Office, Thrissur for executing the sale deed in favour of the plaintiff and the plaintiff did not come. In fact the time was the essence of the contract, plaintiff had willfully failed to perform his part of the contract. On 11.12.1985, the defendant was present in the Registrar's Office, Thrissur for executing the sale deed in favour of the plaintiff and the plaintiff did not come. In fact the time was the essence of the contract, plaintiff had willfully failed to perform his part of the contract. On account of non performance of the contract by the plaintiff, the defendant was not able to return the amount borrowed from her brother's son Vijayan which she borrowed for the purpose of the marriage of Rejitha, her daughter and she had to sell her ornaments and pay the same and thereby she had sustained a loss of Rs.3,500/- which the plaintiff was liable to pay and as such, the plaintiff was not entitled to get a decree for specific performance and also return of advance amount in the alternate as claimed and she prayed for dismissal of the suit. 3. On the basis of the pleadings, the following issues were framed by the trial court for consideration: i. Whether the defendant was prepared to assign the plaint schedule property in favour of the defendant within the stipulated time? ii. Whether the plaintiff has violated the agreement for sale? iii. Whether the plaintiff is entitled to get the sale deed executed in respect of the plaint schedule property in his favour as prayed for in the suit? iv. Whether plaintiff is entitled to get the damages as prayed for? v. Whether the defendant has the right to adjust the advance amount towards damages as alleged in the written statement? vi. Reliefs and costs? 4. In order to prove the case of the plaintiff, plaintiff was examined as PW1 and Exts.A1 to A4 were marked on his side. In order to prove the case of the defendant, the defendant was examined as DW1 and her brother-in-law's son was examined as DW2 and Exts.B1 to B4 were marked on her side. vi. Reliefs and costs? 4. In order to prove the case of the plaintiff, plaintiff was examined as PW1 and Exts.A1 to A4 were marked on his side. In order to prove the case of the defendant, the defendant was examined as DW1 and her brother-in-law's son was examined as DW2 and Exts.B1 to B4 were marked on her side. After considering the evidence on record, the trial court came to the conclusion that the plaintiff was not ready and wiling to perform his part of the contract as alleged and in fact, the defendant was ready and willing to perform her part of the contract and she had performed the things to be done by her as per the terms of the agreement and it was the plaintiff who was not willing to get the document executed in his favour and as such, the plaintiff was not entitled to get a decree for specific performance and also not entitled to get either the return of advance amount or damages as claimed as the defendant had proved that she had sustained a loss of Rs.3,500/- and dismissed the suit. 5. Aggrieved by the same, the plaintiff filed AS.No.385/1996 before District Court, Thrissur and the same was made over to the First Additional District Court, Thrissur for disposal. The learned Additional District Judge, after re-appreciation of evidence, came to the conclusion that the reasons given by the court below for disbelieving the case of the plaintiff were not sustainable in law and in fact, the defendant had failed to prove that time was essence of contract and she had performed her part of the contract without fault on her part. The appellate court also came to the conclusion that the case of the defendant that she had measured the property in the presence of the plaintiff with the help of a Village Assistant appears to be not correct as there was no acceptable evidence adduced to prove this fact and the evidence of DWs 1 and 2 was contradictory on this aspect and as such, that was not sufficient to prove that the property was measured in the presence of the plaintiff and he was convinced that an extent of 71/2 cents was in Sy.No.120 of that village which in fact was not mentioned in the title deed. The lower appellate court also came to the conclusion that though the defendant had a case that she went to Registrar's Office on 11.12.1985 to execute the document, there was no acceptable evidence adduced on that aspect on her side. On the other hand, the plaintiff had proved by producing Ext.A4 dated 11.12.1985 of SRO, Thrissur that he was present in the Registrar's office on that day and attested the document as a witness and that shows that he was always ready and willing to perform his part of the contract and the reasons given by the court below for denying specific performance was not sustainable and also considered the materials available to exercise the discretion under section 20 of the Specific Relief Act in favour for the plaintiff and set aside the decree and judgment passed by the court below dismissing the suit and allowed the appeal and decreed the suit directing the plaintiff to deposit the balance sale consideration within a period of 6 months with notice to the defendant and on such deposit if the defendant failed to execute the assignment deed within three months from the date of such intimation, he was at liberty to apply to the court for execution of the document and also allowed the plaintiff to recover cost from the respondent throughout and adjust the cost payable in the balance sale consideration. Dissatisfied with the same, the above second appeal has been filed by the appellant/ dissatisfied defendant before the court below. 6. When the appeal was admitted, this Court had accepted the substantial questions of law raised in the Appeal Memorandum and formulated the substantial questions of law arise for consideration as follows: i. Is it legal and proper to tender evidence on a vital aspect of compliance of a condition in Ext.A1 of measuring the plaint schedule property without any pleading in the plaint? ii. Does it not prove that the plaintiff was not ready and wiling when he gives evidence that he is prepared to purchase the extent of property in Ext.A1 in the survey number after knowing that 7 1/2 cents of property was in different survey number? iii. ii. Does it not prove that the plaintiff was not ready and wiling when he gives evidence that he is prepared to purchase the extent of property in Ext.A1 in the survey number after knowing that 7 1/2 cents of property was in different survey number? iii. Is it not the plaintiff had failed to prove that he was willing to perform his part of the contract when he did not say anything about 7 1/2 cents of property which was found in a different survey number? iv. Is it a mere act of going to the Sub Registry Office on the last date of agreement be taken as a strong item of evidence to establish the readiness and willingness to perform part of contract? 7. While arguing the case, this Court felt that some more substantial questions of law also arise for consideration and with the consent of the parties, the following substantial questions of law also have been formulated: i. Whether the lower appellate court was justified in reversing the discretion exercised by the trial court in denying specific performance without cogent and legal reasons? ii. Whether the lower appellate court was justified in not considering the fact of escalation of price for the property due to lapse of time and if specific performance is granted, that will cause unnecessary hardship to the defendant and should have exercised the discretion in favour of the defendant in stead of exercising the same in favour of the plaintiff? 8. The arguments were heard on the above questions of law formulated as well. 9. Heard Sri. M.R. Venugopal, learned counsel appearing for the appellant and Sri. K.G. Balasubramanian, counsel appearing for the respondent. 10. The counsel for the appellant submitted that, the lower appellate court was not justified in reversing the finding of the court below and upsetting the discretion exercised by the court below of denying specific performance of the contract. He had also argued that the evidence of DWs 1 and 2 will go to show that the defendant was always ready and willing to perform her part of the contract and in fact she had performed her part by measuring the property with the help of village assistant in the presence of the plaintiff as undertaken in the agreement. He had also argued that the evidence of DWs 1 and 2 will go to show that the defendant was always ready and willing to perform her part of the contract and in fact she had performed her part by measuring the property with the help of village assistant in the presence of the plaintiff as undertaken in the agreement. When it was revealed that, an extent of 71/2 cents was in another survey number, namely R.S.120 and the plaintiff was not interested in proceeding with the contract and suppressing this fact he had sent a notice to which the defendant had sent reply, in spite of that, he was not prepared to get the document executed but filed the suit. Further the defendant also went to the registrar's office on the last day for performance of the contract, but plaintiff did not come to the registrar's office. That shows that, he was not at all interested in proceeding with the matter. Further the evidence of PW1 also will go to show that, he was only interested in purchasing the property comprised in Survey No.119 alone and not the entire property within the boundaries as per document. Further by lapse of time, the price of the property has been escalated enormously and if the property has to be sold for the amount agreed between the parties, then great hardship will be caused to the appellant and in such circumstances, the discretion ought to have been exercised in favour of the appellant and denied specific performance. He had also argued that, time was essence of the contract and the property was agreed to be sold for raising money for her daughter's marriage and she had to borrow money from her relative for this purpose and due to non-performance of the contract by the plaintiff, she had to sell her gold ornaments to pay of the debt, thereby great loss has been caused to her. These aspect were not properly considered by the lower appellate court at all. 11. He had relied on the decisions reported in Naila Abdul Nazar v. Gopalakrishnan ( 2017 (1) KLT 773 ), Nanjappan v. Ramasamy (2015 (2) KLT Suppl. 94 (SC), Sethulakshmi v. Panjab National Bank (2016 (4) KLT 857), Hemanta Mondal v. Ganesh Chandra Naskar (2015 (4) KLT Suppl. 78 (SC), in support of his case. 12. 11. He had relied on the decisions reported in Naila Abdul Nazar v. Gopalakrishnan ( 2017 (1) KLT 773 ), Nanjappan v. Ramasamy (2015 (2) KLT Suppl. 94 (SC), Sethulakshmi v. Panjab National Bank (2016 (4) KLT 857), Hemanta Mondal v. Ganesh Chandra Naskar (2015 (4) KLT Suppl. 78 (SC), in support of his case. 12. On the other hand, the counsel for the respondent submitted that, the lower appellate court had properly re-appreciated the evidence and come to the right conclusion that the finding arrived at by the trial court regarding the reasons for denying specific performance in favour of the plaintiff are not sustainable in law and without any evidence. Further the evidence will go to show that, the plaintiff was always ready willing to perform his part of the contract and in fact he had sent notice within time and went to the registrar's office expecting the defendant, but she did not come and rightly granted a decree for specific performance. Further the lower appellate court had rightly come to the conclusion that, defendant had failed to prove that time was the essence of the contract and she had suffered any damage and her evidence is not sufficient to come to the conclusion that she had measured the property with the help of village assistant in the presence of the plaintiff as claimed by her. Further inadequacy of consideration or escalation of price are not legally sustainable grounds to deny specific performance especially when such things were not pleaded in the written statement. 13. He had relied on the decisions reported in Zarina Siddiqui v. A. Ramalingam @ R. Amarnathan (2014 KHC 4697), Rameshwar and others v. Jot Ram and others (1976 KHC 597), Faizal Eroth and Another v. Venkalath Raveendran and another (2013 (3) KHC 407), Raveendran v. Gopi (2014 (4) KHC 150) in support of his case. 14. The factum of execution of Ext.A1 agreement to sell between the plaintiff and the defendant in respect of 54 cents of land in R.S.119 of Pottor village for a consideration of Rs.223 per cent on 11.10.95 and payment of Rs.1,000/- as advance by the plaintiff and acceptance of the same by the defendant are not in dispute. 14. The factum of execution of Ext.A1 agreement to sell between the plaintiff and the defendant in respect of 54 cents of land in R.S.119 of Pottor village for a consideration of Rs.223 per cent on 11.10.95 and payment of Rs.1,000/- as advance by the plaintiff and acceptance of the same by the defendant are not in dispute. It is also not in dispute that the balance consideration had to be paid on or before 11.12.85 and the document had to be executed by the defendant at the expense of the plaintiff and defendant had to measure the property and convince the title regarding the property by showing the back documents within that time. 15. It is also not in dispute that the trial court believed the case of the appellant that there was no breach committed by her and it was the respondent who had committed the breach and dismissed the suit and on appeal the first appellate court reversed the finding and decreed the suit. The question to be considered is as to whether the first appellate court was justified in reversing the finding of the trial court and decreeing the suit. Before going into the facts of the case and legality of the judgment of the lower appellate court, let me first consider the relevant provisions in the Specific Relief Act and the precedents on this aspect. 16. Section 20 of the Act deals with discretion as to decreeing specific performance, which reads as follows: “20. Discretion as to decreeing specific performance:- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Discretion as to decreeing specific performance:- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:- (a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract though not voidable, given the plaintiff an unfair advantage over the defendant; or (b) where the performance of contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1:- Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2:- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party”. 17. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party”. 17. It is clear from the above section that (i) even if it is a lawful contract, court has to consider the terms of the contract or conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff unfair advantage over the defendant; (ii). That the performance of the contract would involve great hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (iii) The defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance and if these things are present, then the court can deny specific performance. It is further clear from the section that mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). It is also clear from the section that if the subsequent act of the plaintiff has resulted in hardship to the defendant, then court shall exercise the discretion in denying specific performance. It is also clear from the section that the court should properly exercise the discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses consequent to the contract capable of specific performance and the court shall not refuse specific performance merely on the ground that it has become not enforcible at the instance of the party. 18. Section 21 of the Specific Performance Act deals with power to award compensation in certain cases, which reads as follows: “21. Power to award compensation in certain cases:-(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. 18. Section 21 of the Specific Performance Act deals with power to award compensation in certain cases, which reads as follows: “21. Power to award compensation in certain cases:-(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. (2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly; (3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872). (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation:-The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section”. 19. This section deals with the circumstances under which the court can award compensation in case specific performance is denied by the court for breach of contract and should be made on the basis of principle provided under section 73 of the Indian Contract Act. 20. Section 10 of the Specific Relief Act deals with cases in which specific performance of contract is enforceable, which reads as follows: “10. 20. Section 10 of the Specific Relief Act deals with cases in which specific performance of contract is enforceable, which reads as follows: “10. Cases in which specific performance of contract enforceable:- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced- (a) when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Explanation:- Unless and until the contrary is proved, the court shall presume- (i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and (ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:- (a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market; (b) where the property is held by the defendant as the agent or trustee of the plaintiff” In Explanation to this section it has been made clear that breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. 21. In the decision reported in [Hemanta Mondal v. Ganesh Chandra Naskar (2015 (4) KLT Suppl. 78 (SC)] it has been held that “where the area of land agreed to be sold was not clear and final and in such circumstances plaintiff cannot be said to have done substantial acts or suffered losses due to expenditure in construction etc., in consequence of contract capable of specific performance and considering the lapse of time, it would be equitable, just and proper to deny specific performance to the plaintiff but directing the defendant to pay the earnest money with 18 % interest per annum will be sufficient and that will meet the ends of justice. 22. In the decision reported in Nanjappan v. Ramasamy [2015 (2) KLT Suppl. 22. In the decision reported in Nanjappan v. Ramasamy [2015 (2) KLT Suppl. 94 (SC)] it has been held, relying on the decision reported in Saradamani Kandaplan v. Rajalekshmi and others ( 2011 12 SCC 18 ) that the fact that the value of the property escalate in urban area very fast and it would not be equitable to grant specific performance after a lapse of long period of time as it would give an unfair advantage to the plaintiff whereas performance of the contract would involve great hardship to the defendant and his family members. That was a case where the only property of the vendor where he had constructed a house for his residence was agreed to be sold and value of the property has been substantially increased and granting specific performance will make the defendant homeless and in such circumstances, the Apex Court had exercised the discretion under section 20 of the Specific Relief Act and denied specific performance and directed return of the advance amount with 9% interest and in addition directed to pay a compensation of Rs.2 lakhs to the respondent/plaintiff. 23. In the decision reported in Parakunnan Veetil Joseph's Son Mathew v. Nedumpara Kuruvila's Son and others ( AIR 1987 SC 2328 ) it has been held that: “Section 20 of the Specific Relief Act 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff”. 24. That was a case where there was some ill motive for the plaintiff to file the suit for specific performance when the original agreement holder had waived his right and there was some conflict between some of parties to the agreement and the court on facts felt that the plaintiff had not come to court with clean hands and granting specific performance will amount to oppression on the defendant and cause untoward hardship to him and in such circumstances, it is inequitable to grant specific performance to the plaintiff and denied the relief. 25. 25. In the decision reported Sethulakshmi Bashi v. Punjab National Bank (2016 (4) KLT 857), this court reiterated the duty of the court under section 20 of the Specific Relief Act to exercise the discretion while granting specific performance and to evaluate all the circumstances before deciding to grant specific performance in favour of the plaintiff. 26. In the decision reported in Naila Abdul Nazar v. Gopalakrishnan ( 2017 (1) KLT 773 ) it has been held that: “The relief of specific performance has its roots in equity. The power to grant decree for specific performance is discretionary under section 20 of the Specific Relief Act. It is to be noticed that even independent of section 20, the grant of a decree for specific performance of part of a contract is on terms of section 12 of Specific Relief Act, discretionary”. 27. It was a case where an agreement was entered into for sale of fractional interest and the defendant has no absolute right to sell the property. In such circumstances, this court declined to exercise the discretion of granting specific performance, but directed return of the amount. 28. In the decision reported in Wellingdon B and Others v. D.Shyama Prasad and Others [2014 (3) KHC 560 (DB)], a Division Bench of this Court relying on the decision of the Apex Court in Satya Jain (D) Thr.Lrs. And Others v. Anis Ahmed Rushdie (D) Thrs. Lrs. and others [AIR 2013 SCC 434 ] held that equitable relief for specific performance cannot be denied to plaintiff on the sole reason that there is huge escalation in market value, but defendant should not be put to undue loss by denying escalated market value and granted specific performance but re-fixing the amount payable by the plaintiff taking into account the money value at the time of entering into contract and its present value and directed to pay the balance amount after re-fixing the same applying that principle. 29. 29. But in a subsequent decision, a Single Judge of this Court in Raveendran v. Gopi [2014 (4) KHC 150] held that there is huge escalation market value of the property and it will be inequitable to grant such relief to the plaintiff cannot be considered at the second appellate stage as there is no specific plea on the part of the defendant that there is huge escalation in market value and it will be equitable to grant decree for specific performance cannot be accepted at the second appellate stage. 30. In the decision reported in Rameshwar and Others v. Jot Ram and Others [1976 KHC 597 = 1976(1) SCC 194 ], it has been held that the court can however take note of subsequent events and mould the relief accordingly, but this can be done only in exceptional circumstances and the rights vested by statute cannot be divested by this equitable doctrine. 31. In the decision reported in Faizal Eroth and Another v. Venkalath Raveendran and Another [2013 (3) KHC 407], it has been held that we would like to observe that court must not loose sight of the fact that parties have entered into solemn agreement and chose to bind themselves to its terms. We are of the view that neither party be permitted to resile from his commitment simply because he would now get a better deal elsewhere. If such a course were to be permitted, then, the sanctity of a binding contract would be thrown off. We say this in the light of the statement made by the learned counsel for the respondents that the respondents had to suffer huge loss on account of the failure on the part of the appellants, as there is considerable increase in the price of suit land. But, we are of the view that even if it is true, it cannot be a ground to deny decree of specific performance. In the same decision, it has been held that the Trial Court relied upon the fact that the appellants have not produced sufficient documents to show that they were having the balance sale consideration and found the appellants were not ready and willing to perform their part. In the same decision, it has been held that the Trial Court relied upon the fact that the appellants have not produced sufficient documents to show that they were having the balance sale consideration and found the appellants were not ready and willing to perform their part. It is settled law that it is not necessary that the entire amount of consideration should be kept ready and the plaintiffs must file proof in respect thereof and disagreed with the finding of the trial court on this aspect. 32. The Division Bench also relied on the decision reported in Faquir Chand and Another v. Sudesh Kumari [2006 KHC 1946] where it has been held that a suit for specific performance would be decreed by granting additional compensation to the defendants taking into account the escalation of price caused due to long lapse of time from the date of agreement till the date of decree. In the decision reported in Vimaleshwar Nagappa Shet v. Noor Ahmed Sheriff and Others [2011 KHC 4494], it has been held that the value of property escalates in urban areas very fast and it would not be equitable to grant specific performance after a lapse of a long period of time. In those cases to make the loss occurred on account of lapse of time, compensation has been awarded to the vendee and in this case the Division Bench did not award any excess amount other than the amount agreed between the parties. 33. In the decision reported in Zarina Siddiqui v. A. Ramalingam alias R.Amarnathan [2014 KHC 4697], it has been held that if the defendant does not come with clean hand and suppressed material facts and evidence and mislead the Court, then, such discretion should not be exercised by refusing to grant specific performance and plaintiff is not to be denied decree of specific performance only on account of phenomenal increase of land price during the pendency of litigation, after referring to the decisions reported in Rajinder Kumar v. Kuldeep Singh and Others 2014 (2) SCC 135, Vimaleshwar Nagappa Shetty v. Noor Ahmed Sheriff and Others [ 2011 (12) SCC 658 ] and K.S. Vidyanadam and Others v. Vairavan [ 1997 (3) SCC 1 ] where the escalation of price was taken as a equitable ground to deny the specific performance to the plaintiff after lapse of time. 34. 34. In the same decision, the Apex Court relied on the decision of the The King's Bench in Rookey's Case 77 ER 209: 1597 (5) Co.Rep.99 where it has been held that the “Discretion is a science, not to act arbitrarily according to men's will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with”. However, in the same decision the Apex Court relied on the decision of the Court of Chancery in Attorney General v. Wheat, 1759() Eden 177; 28 ER 652 followed the Rookey's case and observed; “The law is clear and Courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni vin, yet when it is asked, vir bonus est quis? The answer is, qui consulta partum, qui leges juraq servat. Ultimately the Apex Court has held in this case that there is no need to enhance the amount payable for the purpose of granting a decree for specific performance. 35. It is clear from the above dictums that granting a decree for specific performance is a discretionary one and if the court on the basis of the evidence is convinced that granting specific performance is inequitable and it will cause undue advantage to the plaintiff and hardship to the defendant, then even if it is lawfull to grant a decree for specific performance, court may deny the same. It is also clear from the dictum that in appropriate cases, when court is inclined to grant decree for specific performance, taking into account the escalation of price in urban areas so fast and after lapse of time granting a decree for specific performance for a smaller amount agreed between the parties will cause undue loss to the defendant, then, court has power to enhance the amount payable as sale consideration and re-fix the amount payable for such transaction. But court must take into consideration the circumstances and the conduct of the parities before exercising such discretion in favour of the defendant. 36. In this case, there is no dispute regarding the fact that the plaintiff and defendant had entered into an agreement to sell in respect of 54 cents of land in R.S.No.119 of Pottore Village for a consideration of Rs.223/- per cent and Rs.1000/- was paid as advance and agreement was entered into on 11.10.1985 and it has to be performed on or before 11.12.1985. It is also not in dispute that as per terms of the agreement, the defendant had to measure the property and convince the plaintiff regarding the extent and also deliver the back documents so as to convince the plaintiff regarding the title to the property. It is the case of the defendant that on 29.10.1985, with the help of Village Assistant, Pottur, the property was measured in the presence of the plaintiff and it was revealed that 7 ½ cents of land was in Survey No.120 of Pottur Village, but it is within the boundaries covered by the title deed and when this fact was known to the plaintiff, he had backed out of the transaction. But this fact was denied by plaintiff. 37. It is not in dispute that the plaintiff sent Ext.A2 notice dated 22.11.1985 intimating the defendant that he would be going to the Registrar's office on 11.12.1985 and requesting the defendant along with all documents to come to the Registrar's office to receive the balance consideration and execute the document. It is true that the defendant had sent Ext.A3 reply notice dated 5.12.1985, which was received by the plaintiff on 7.12.1985, where she had stated that the property was measured and the plaintiff who was not willing to perform the contract when it was revealed that some extent of property was in Survey No.120 of Pottur Village. It is true that the defendant had sent Ext.A3 reply notice dated 5.12.1985, which was received by the plaintiff on 7.12.1985, where she had stated that the property was measured and the plaintiff who was not willing to perform the contract when it was revealed that some extent of property was in Survey No.120 of Pottur Village. When plaintiff was examined as PW1, he had denied this fact. According to the defendant, when she was examined as DW1, she had stated that on 29.10.1985, the property was measured by the Village Assistant of Pottor in the presence of plaintiff and he had prepared a sketch plan of the property and the same was handed over to the plaintiff. But she had admitted in evidence that she did not apply to the Village Officer for getting the assistance of the Village Officer or Village Assistant to measure the property and she could not say as to whether she was in possession of the sketch plan prepared by the Village Assistant to prove this fact. Further, the evidence of DW2 is contrary to her evidence regarding the factum of measuring the property by the Village Assistant. He is the relative of the defendant. According to him, the measurement was done during 1986, whereas, according to the defendant, it was done on 29.10.1985. So, under such circumstances, in the absence of any convincing evidence regarding the factum of measurement of the property as claimed by the defendant in her written statement, the lower appellate court was perfectly justified in coming to the conclusion that the defendant had failed to prove this fact. 38. Further, she had no case that she had handed over the back document of the property to the plaintiff to convince her title of the property. Merely because she had produced Exts.B1 to B4 before the court that she was having the back documents with her and she obtained encumbrance certificate and applied to the Thasildar for getting possession certificate to the effect that she is in possession of the property including the extent seen in Survey No.120, is not sufficient to come to the conclusion that she was always ready and willing to perform her part of the contract and those documents were not properly proved through by the persons who issued the same as well. 39. 39. Further, though the defendant had a case, that she went to Registrar's office on 11.12.1985 to get the document executed and the plaintiff did not come, she had not produced any document to prove that fact. Though she had a case that she had signed a document as a witness on that day, she did not produce that document. On the other hand, plaintiff had produced Ext.A4, a certified copy of guarantee bond to show that he went to the Registrar's office and signed that document as a witness on 11.12.1985. The defendant had no case that the plaintiff was not having any money to pay the sale consideration agreed. She had also no case that the property was agreed to be sold for a lesser price than the market value of the property. She had not raised any claim in the written statement that the price of the land has been escalated and as such granting a specific performance after lapse of time will cause unnecessary hardship to her. She had no such case at the time of evidence as well. Further, it was brought out from the records that the plaintiff had already deposited the amount in court as directed by the appellate court. So under such circumstances, the lower appellate court was perfectly justified in coming to the conclusion that the trial court was not justified in denying specific performance and rightly held that the plaintiff was always ready and willing to perform his part of the contract and rightly decreed the suit. 40. Though the defendant had a case, that time was the essence of contract and she had agreed to sell the property to raise fund for her daughter's marriage, she did not mention the date of marriage either in the written statement or at the time of evidence to prove that the transaction was entered into for the purpose of raising funds for her daughter's marriage. Further, though she had a case that she had borrowed a sum of Rs.3,500/- from her relative Vijayan and she had to sell her gold ornaments to pay off the amount, she did not adduce any acceptable evidence to prove this fact as well. Further, though she had a case that she had borrowed a sum of Rs.3,500/- from her relative Vijayan and she had to sell her gold ornaments to pay off the amount, she did not adduce any acceptable evidence to prove this fact as well. So under such circumstances, the lower appellate court was perfectly justified in rejecting the claim of the defendant that time was the essence of contract and she had suffered loss on account of non-performance of the contract by the plaintiff. 41. The counsel for the appellant produced computer print out the fair value fixed by the Government for wet land in Pottor Village which shows Rs.70,000/- per Are in the survey number as the fair value fixed. But it may be mentioned here that fixing of fair value by the Government for the purpose of registration does not mean that it reflects the real market value of the property and that has been fixed by the Government for the purpose of collecting revenue as stamp duty and registration fee and nothing more. Further in the decision reported in Renga Swamy Chettiar v. Mari Chettiyar [2010 (4) KLT 367], it has been held that stamp duty has to be paid on the basis of the fair value fixed as on the date of registration, if the document is presented for registration after Section 28A of the Stamp Act, 1959 has come into force, though the value shown in the document is less than the fair value. That will go to show that by virtue of the latest development, even if the amount of consideration agreed or fixed by the court was less, the plaintiff has to pay stamp duty on the basis of the fair value fixed by the government for the purpose of getting the document registered which caused him additional burden as well. Further, admittedly, it is a wet land and after coming to the force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, it is not possible for a person to convert a paddy land for any other purpose. So there is restriction on the user of the land on account of the passing of enactment to protect the wet land and paddy land. So there is restriction on the user of the land on account of the passing of enactment to protect the wet land and paddy land. So under such circumstances, fixing the land value on a higher price so as to give an equitable relief to the defendant on the basis of the escalation of price may also cause unnecessary hardship to the plaintiff. But at the same time fixing the value of Rs.223/- per cent which was fixed in the year 1985 will be inequitable as far as the defendant is concerned. In this case, specific performance is denied by the trial court but granted by the first appellate court for the first time. So considering the circumstances, this court feels that the total consideration payable for the land of 54 cents can be fixed at Rs.60,000/- and the plaintiff is liable to pay the balance amount for the purpose of getting the document executed and this will meet the ends of justice as far as both parties are concerned. So the decree and judgment passed by the lower appellate court granting specific performance is hereby confirmed. But the same is modified by fixing the total consideration payable as Rs.60,000/- for getting the document executed by the defendant in favour of the plaintiff and the plaintiff has to pay the balance amount after deducting the amount already deposited by him and fixed as consideration in the document within a period of six months from today and after giving notice to the defendant regarding the deposit and the defendant has to receive the amount and execute the document within two months thereafter. If the document is not executed as directed, then plaintiff is entitled to approach the court for getting the document executed in his favour through court in accordance with law. So the decree and judgment passed by the lower appellate court is modified as follows: 1. The decree and judgment passed by the lower appellate court granting a decree for specific performance in respect of Ext.A1 agreement dated 11.10.1985 is hereby confirmed. 2. The total consideration payable for the transaction is re-fixed as Rs.60,000/- instead of Rs.223/- per cent for 54 cents and the plaintiff is directed to deposit the balance amount after reducing the amount already deposited by him within six months from today and give notice of that deposit to the defendant. 3. 2. The total consideration payable for the transaction is re-fixed as Rs.60,000/- instead of Rs.223/- per cent for 54 cents and the plaintiff is directed to deposit the balance amount after reducing the amount already deposited by him within six months from today and give notice of that deposit to the defendant. 3. On getting notice of deposit, the defendant has to execute the document within two months thereafter. 4. If the defendant fails to execute the document within the time mentioned above, then the plaintiff is at liberty to move the court for getting document executed through court in his favour. Considering the circumstances, parties are directed to bear their respective cost in the second appeal. With the above modification the second appeal is allowed in part and disposed of accordingly.