1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2396 OF 1984 Rewachand Ladharam Ramchandani. ... Plaintiff. V/s. Haridas Lachmandas Awani & Ors. ... Defendants. Ms. P. Parikh i/b. Dhru & Co. for the Plaintiff. None for the Defendants. ...... CORAM : S.C. DHARMADHIKARI, J. 08TH DECEMBER 2008. P.C. :- The Suit is filed for the Declarations as is evident by Prayer clauses (a),(b1) and (b2) and for Specific Performance. There are alternate reliefs and prayers. 2. There is an alternate relief prayed for specific performance of the agreement dated 21st September 1972 and 5th May 1978. 2 3. It is stated that similar Suit was filed against the very same party/Defendant being Suit No.2395 of 1984. It is stated that the said Suit has been decreed by this Court on 22nd July 2005. 4. On the last occasion, copies of the order passed by this Court on 22nd July 2005 could not be produced and an adjournment was granted to produce the same. 5. Today, a copy of the order is produced and it is stated that the Plaintiff has given up the claims for declaration and for specific performance and has restricted the relief/prayer to a money claim as is evident by prayer clause d(i). It is stated that the alternate prayer in the present Suit is similar to that in Suit No.2395 of 1984. 6. Prayer clause d(i) in this Suit reads as under :- " The Defendant Nos. 1(a), 1(b), 1(c), 1(d), 1(e) and 1(f) jointly and severally to the extent of estate of the original 1st Defendant and Defendant No.1(a) covering to their lands be 3 ordered and decreed to pay to the Plaintiff a sum of Rs.3,00,000/- (Rupees Three lakhs) as and by way of damages as per the particulars of claim being Exhibit `G' hereto and refund to the Plaintiff the said sum of Rs.23,000/- paid by the Plaintiff with interest on the said respective amounts at the rate of 18% per annum from the date of the Suit till the date of the Suit till payment or realisation ." 7. It is stated that no Written statement is filed in the Suit and therefore, all averments are deemed to have been admitted. Therefore, this Court must proceed to decree the Suit as is done in the companian Suit. 8. A reading of prayer clause d(i) itself makes it clear that the same is an alternate relief. Further, prayer clause d(i) not only claims refund of earnest money but damages. 9. The settled law is that the damages have to be proved. The Plaintiff's Counsel would rely upon the plaint averments and the 4 annexures thereto to contend that in the absence of any Written statement, the same are admitted and therefore, the claim for damages also should be awarded. However, that alone is not sufficient. Merely because there is no Written Statement or there is no denial does not mean there is no requirement of proof. (See AIR 1999 S.C. 3381 Balram Taneja V/s. Sunil Madan and Anr.) 10. Section 20 of the Specific Relief Act confers discretion as to decreeing the specific performance. The jurisdiction to decree the Suit is discretionary and the Court is not bound to grant the relief. Section 21 provides for compensation in certain cases and confers a power in the Court to Award it. Sub-section 1 of Section 21 states that the claim for compensation for breach of the contract can be made either in addition to or in substitution of the specific performance. Sub-sections 2 and 3 of Section 21 provide for grant of such compensation and sub-section 4 says that the Court shall be guided by the principles specified in Section 73 of the Indian Contract Act while granting and awarding damages. In the present case, applying these principles to this case, what I find is that the Plaintiff 5 has not produced any material for proving the claim for damages. There is nothing except an averment in the plaint to prove as to how the Plaintiff is entitled to the damages of Rs. 3,50,000/-. In these circumstances, I am unable to award the claim for damages. The claim to that extent is rejected. 11. Applying Section 22 of the Specific Performance Act which enables the Court to award a claim in so far as refund of any earnest money is concerned, what I find from the record is that the Plaintiff has specifically averred that he has paid 23,000/- and that is stated in paragraph 7 of the plaint. That averment is not denied. There is nothing on record which would indicate that the Plaintiff has not made this payment. The correspondence on record also does not indicate that the said amount has not been paid. The agreement at the foot of it clearly states that the said amount has been received. 12. In the result and finding that the claim for refund of earnest money stands proved as indicated above, there shall be a decree in terms of prayer clause (d)(i) of the plaint to the extent that the Plaintiff 6 would be entitled to recover the sum of Rs.23,000/- alongwith interest from the Defendants. Further interest from the date of this Judgment till realisation shall be computed at 6% per annum. 13. The decree be drawn accordingly. The Court has proceeded Ex-parte and therefore, under the Rules, if the Court Fees are to be adjusted or refunded, the same shall also be done. The claim is decreed with costs. (S.C. DHARMADHIKARI,J.)