(delivering the judgment of the Court): This is an appeal from the decision of Yusoff Mohamed J. The facts are not in dispute and are as follows:

The appellant is a company, whose business is that of a housing developer and at the material time was engaged in developing and building shophouses for sale. On March 3, 1973 the respondent booked one of the shophouses which were to be constructed on a private Lot No. 92 at Ulu Tiram, Johore for $49,500. He paid $1,000 as a booking fee and signed a booking proforma. One of the stipulations contained in the proforma is that within two weeks of receipt of a notice from the appellant the respondent must pay to the appellant a sum of $3,950 which (together with the $1,000 booking fee) will make a 10% of the price and the respondent was also required to sign a purchase agreement. Failure to comply with this notice would result in the respondent losing the shophouse and a forfeiture of the booking fee. The booking proforma however contains no provisions entitling the appellant to increase the price unilaterally.

However, on August 28, 1974 the respondent was informed by the appellant by a letter of the same date that the price of the shophouse was increased to $85,000 due to increase in the price of building materials and labour charges. The respondent was requested to pay a sum of $7,500 in order to make up with the $1,000 booking fee a 10% of the new price and to sign a purchase agreement.

The respondent did not agree to the price increase and did not comply with the request. Subsequently on September 10, 1974 his solicitors (Kumpulan Gan & Lim) wrote to the appellant's solicitors a letter objecting to the price increase and insisting that the old price be observed. In the same letter the respondent's solicitors sent a cheque for $3,950 towards the payment of the 10% of the contract price agreed to in the booking proforma. And on October 20, 1974 his solicitors sent another letter reiterating that the appellant was not entitled to increase the price unilaterally.

On November 21, 1974, the appellant's solicitors (Messrs. A. L. Looi) returned the respondent's $3,950 cheque and another cheque for $1,000 being the refund of the booking fee. In this letter the respondent was offered the shophouse at a reduced price of $81,000 and was told that if he agreed he should send a cheque for $8,100 being the 10% of the new price and also should sign a purchase agreement which was enclosed in the same letter.

The respondent did not accept the offer. But his solicitors on January 13, 1975 cashed the $1,000 cheque which was sent by the appellant's solicitors as a refund of the booking fee. Consequently the respondent changed solicitors and his new solicitors (Messrs. Yeow & Chin) on February 2 and March 11, 1975 wrote to the appellant's solicitors inquiring if they had instructions to accept service of writ to be issued by the respondent. In their letter of 11th March the respondent's new solicitors also sent a cheque for $1,000 to replace the booking fee which was returned to and cashed by the respondent's former solicitors (Kumpulan Gan & Lim). This cheque was not accepted by the appellant's solicitors, who finally sent it back to the respondent's new solicitors on May 26, 1975.

Finally the respondent sued the appellant for specific performance of the contract and alternatively for damages on account of breach of the contract. In its statement of defence the appellant contended that by the refund of the booking fee of $1,000 having been accepted by the respondent's solicitors, Kumpulan Gan & Lim, the respondent was estopped by conduct from claiming his rights under the contract.

As the shophouse had already been sold by the appellant to a third party, the respondent quite properly dropped the claim for specific performance and pursued his claim for damages only.

At the trial before Yusoff Mohamed J. it was a common stand of both parties that the booking proforma signed by the responden