IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) FRIDAY, THE 24th DAY OF DECEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.71 of 1998 BETWEEN: Ms/ Safar Associates Al Riaz, rep. by its proprietor, Mr. Raheemuddin Kamal and another … APPELLANT (S) And Syed Lateef Mohiuddin Quadri … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.71 of 1998 JUDGMENT: Appellants are defendants in O.S.No.1691 of 1989 on the file of the Court of IV Additional Judge, City Civil Court, Hyderabad (trial Court). The said suit was brought by the respondent/plaintiff for specific performance of an oral agreement of sale said to have been entered into on 25.01.1983 relating to a flat/apartment in the complex undertaken to be constructed by the defendants. The second defendant is the proprietor of the first defendant concern which undertook the construction of the flats. 2. The trial Court, after a contest, by its judgment dated 01.01.1998, refused the relief of specific performance but, at the same time, it ordered the defendants to pay a sum of Rs.50,000/- with interest at 12% per annum from the date of the suit which is said to have been received by them from the plaintiff towards advance in part payment of the sale consideration for the flat the total consideration for which was pleaded to be Rs.1,10,000/- by the plaintiff. The defendants have come up with this appeal against that portion of the trial Court’s judgment which directed them to pay the sum of Rs.50,000/- to the plaintiff. 3. The plaintiff did not file any appeal questioning the refusal of the relief of specific performance in his favour. Thus, the scope of this appeal is limited to the point as to whether the trial Court was right in ordering the defendants to pay the sum of Rs.50,000/- with interest which it granted to the plaintiff. All the facts are admitted except the defendants contention that the amount of Rs.50,000/- is not refundable and it has been rightly forfeited by them which the trial Court did not accept. 4. Before taking up the point, it may be noted that the trial Court ordered refund of the amount of Rs.50,000/- mainly basing upon the evidence of D.W.1 Dr. Rahimuddin Kamal who is the second defendant and the proprietor of the first defendant wherein he admitted the receipt of Rs.50,000/- from the plaintiff on various dates which are mentioned in the plaint. The learned counsel for the plaintiff basing upon the grounds of appeal argued that having refused the relief of specific performance the trial Court ought not to have ordered the refund of Rs.50,000/- as the defendants specifically pleaded that there was delay on the part of the plaintiff in paying the amount towards the total sale consideration which according to them was Rs.2,70,000/- and that the defendants rightly forfeited the amount of Rs.50,000/-. The contention of the plaintiff is that there was no agreement which provides for forfeiture between him and the defendants and therefore the said amount cannot be forfeited. The details of the oral and documentary evidence let in by both sides are given in the appendix of evidence which is at the foot of the trial Court’s judgment and therefore they are not again mentioned. 5. Regarding the plea of forfeiture taken by the defendants, their case is that starting from 25.01.1983 to 03.05.1984 the plaintiff in various instalments paid in all a sum of Rs.50,000/- and that was adjusted only towards booking of the flat and not towards sale consideration and as per the terms of the oral agreement between them the sale agreement was to be executed with proper price only when the plaintiff pays a substantial amount and if the plaintiff fails to do so as per the terms of the agreement they were entitled to forfeit it. The plaintiff however denied this plea of the defendants. It is of-course true that the trial Court rejected the plea of the plaintiff that the sale consideration which was agreed upon for the flat was Rs.1,10,000/- and there is no compelling reason to disagree with this conclusion of the trial Court. 6. Regarding the forfeiture plea taken by the defendants the trial Court discussed this aspect and concluded that there was no agreement or any document between the parties which showed that the defendants were entitled to forfeit the amount of Rs.50,000/- paid up to 03.05.1984 and the plaintiff agreed for such a forfeiture clause. The learned counsel for the defendants in this appeal mainly relied upon Exs.B.1 to B.9 phonograms and letters sent by the defendants to the plaintiff in which they informed him about the delay in payment of the substantial amount by him, and that if the delay continued they were entitled to forfeit the amount already received by them and that the said amount was to be treated only as meant for booking the flat. I have gone through these letters and of-course it is true that in Exs.B.4, B.5 and B.3 letters dated 13.04.1984, 14.02.1984 and 22.10.1984 the second defendant was informing the plaintiff that if there was delay in payment of substantial amount towards the sale consideration of the flat yet to be fixed and which was subject to price escalation, serious consequences would follow. These letters do not contain anything to show what the second defendant was signifying to the plaintiff by mentioning about serious consequences. 7. It is not the case of the defendants that the amount of Rs.50,000/- received by them was only a very small portion of the total consideration of the flat and in fact the defendants themselves at one stage pleaded that the cost of the flat may go up to Rs.2,70,000/- or Rs.2,80,000/-. Even according to the said sale consideration, the amount of Rs.50,000/- cannot be said to be a small amount and in my opinion it has to be treated only as a payment made towards part of the sale consideration and the trial Court was right in holding so. The learned counsel for the defendants could not bring to my notice any document or any other evidence to show that the defendants were entitled to forfeit the amount of Rs.50,000/-. 8. It may then be noted that the defendants could not establish that the delay committed by the plaintiff in paying substantial amounts amounted to a breach of contract and that they suffered a loss because of the delay committed by the plaintiff and they did not even claim any compensation on that premise. Thus the conclusion of the trial Court that there was no forfeiture clause should be accepted as correct. Thus it can be said that the plaintiff can claim refund of this amount of Rs.50,000/- as an alternative relief to the relief of specific performance. 9. The learned counsel for the defendants pointed out that the trial Court did not frame any issue regarding the entitlement of the plaintiff for refund of this amount of Rs.50,000/- and therefore it should not have ordered its refund. It is true that no such issue was framed. However, the trial Court framed an issue on the question whether the plaintiff paid a sum of Rs.50,000/- to the second defendant i.e. the proprietor of the first defendant and answered this issue in favour of the plaintiff. Thus, normally, when that issue is framed and answered in favour of the plaintiff the next question that would arise is whether the plaintiff would be entitled to its refund in the alternative when the relief of specific performance is refused as such a refund is provided for in the Specific Relief Act, 1963 (for short Act). Thus, it cannot be said that the parties were not put to issue on this question and the non- framing of such an issue by itself is not fatal to the claim of the plaintiff for refund of the said amount. However, as will be presently seen the plaintiff cannot get this relief for the following reasons. 10. It may be noted that a perusal of the plaint would disclose that after claiming the relief of specific performance, the plaintiff did not specifically plead for refund of the above amount of Rs.50,000/- in the plaint in case the relief of specific performance was refused to him. He however pleaded for grant of suit costs and any other appropriate relief which he may be entitled to. 11. Section 22 of the Act reads as follows. “22. Power to grant relief for possession, partition, refund of earnest money, etc.—(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) possession, or partition and separate possession of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under Cl.(a) or Cl.(b) of sub-section (1) shall be granted by the Court, unless it has been specifically claimed : Provided that where the plaintiff has not claimed any such relief 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 relief. (3) The power of the Court to grant relief, under Cl.(b) of sub- section (1) shall be without prejudice to its powers to award compensation under Sec.21.” 12. It should be noted that a perusal of clause (b) of Sub-section (1) and Sub-section (2) of Section 22 of the Act shows that a person suing for specific performance of a contract for transfer of an immovable property may in an appropriate case ask for any other relief to which he may be entitled including the refund of any earnest money or deposit paid or made by him in case his claim for specific performance is refused and that the Court cannot grant such relief unless it is specifically claimed. 13. The emphasis is on the words “any other relief” including the relief of refund of earnest money or deposit. The words “any other relief” should in a purchaser’s suit for specific performance be understood to mean refund of part of sale consideration paid also even assuming for a moment that the words ‘earnest money’ or ‘deposit’ may not cover part of the sale consideration paid. It may be noted that in a specific performance suit the expression ‘alternative relief’ means a relief which the plaintiff would be entitled to in case the relief of specific performance is refused and from the above language in Section 22 of the Act the above inference has to be drawn. Nothing is brought to my notice by the plaintiff’s counsel that the said expression alternative relief cannot be held to cover relief of part of sale consideration. 14. In the present case, as already mentioned supra, the plaintiff did not specifically ask for refund of Rs.50,000/- in the alternative and hence it follows that the trial Court was not right in refunding the amount of Rs.50,000/- though the Court fee was paid on the sale consideration of Rs.1,10,000/- pleaded by the plaintiff and that covers the relief for refund of this Rs.50,000/- also. 15. In the course of arguments, Section 22 of the Act was taken to the notice of the plaintiff’s counsel in order to show him that the relief of refund of part of sale consideration paid can be asked for at any stage even by amending the plaint as contemplated under the proviso to Section 22(2) of the Act. The learned counsel for the plaintiff did not evince any interest to amend the plaint. Instead he argued that the Court should follow the rules of good conscience and equity and can grant the refund even if the relief of refund of the money paid is not specifically asked for by holding that the prayer for grant of any other appropriate relief must cover this relief of refund of Rs.50,000/- also. 16. May be what the plaintiff’s counsel has argued may stand to reason, but the Parliament, however, in its wisdom, has chosen to enact Section 22 in the Act creating a bar for a Court to refuse the alternative relief of refund of part of sale consideration paid to the vendee in case the relief of specific performance is refused unless the plaint expressly seeks such relief or is subsequently amended seeking such relief. It is true that this bar contained in Section 22 regarding refund of part of the sale consideration paid may create hardship but still the Parliament in its wisdom chose to enact such a bar. It is not open for this Court to entertain an argument for ignoring Section 22 of the Act and it is for Parliament alone to bring about an amendment at least to permit grant of relief of refund of part of sale consideration without there being a specific prayer or relief claimed in that behalf. In view of the above statutory bar imposed upon the Court, it follows that this Court which has to act according to law cannot go to the rescue of the plaintiff even though there may be justification for the refund of the money since he did not amend the plaint. The learned counsel for the plaintiff could not also bring to my notice any other provision of law or a precedent which entitles him to the refund of the sum of Rs.50,000/- in a case like this. 17. In the above circumstances, it follows that in view of the bar contained in Section 22 of the Act, the point has to be decided in favour of the defendants and it is accordingly decided. This appeal is, therefore, allowed and the judgment and decree of the trial Court are set aside. No costs. ______________________ N. RAVI SHANKAR, J 24th December, 2010. CVRK