RSA No.2743 of 2009 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2743 of 2009 (O&M) Date of decision:07.10.2010. Lavinder Kumar Sharma ...Appellant Versus Parmod Kumar ...Respondent CORAM: HON’B LE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Ashok Gupta, Advocate, for the appellant. Mr. Avnish Mittal, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The defendant is in second appeal against the judgment and decree of the Courts below by which alternative relief sought by the plaintiff in terms of recovery of sale consideration of `1,60,000/- has been decreed along with pendente lite and future interest thereon @ 6% per annum till the date of its actual realization. The plaintiff filed the suit for possession by way of specific performance of an agreement to sell and, in the alternative, prayed that if specific performance is refused by the Court, the amount of sale consideration advanced by the plaintiff to the defendant may be ordered to be returned with interest. The case set up by the plaintiff is that the defendant entered into an agreement to sell with him on 13.03.1995 (Ex.P5) to sell house bearing No.594-A, Kanshi Nagar, Model Town, Ambala City, measuring 4 Marlas [for short “property in dispute”] for a RSA No.2743 of 2009 (O&M) -2- ***** total sale consideration of `1,60,000/-. The defendant had received `1,25,000/- against receipt (Ex.P2) and agreed to pay remaining sale consideration of `35,000/- before the Sub Registrar at the time of execution and registration of sale deed on 10.08.1995. However, the defendant did not turn up on the date fixed for the execution and registration of sale deed and after about 8-9 months, he again approached the plaintiff for the purpose of borrowing some money. On his request, the remaining sale consideration of `35,000/- was handed over to him by the plaintiff and another agreement was executed on 10.09.1996 (Ex.P1) alongwith a General Power of Attorney (Ex.P3) and a Will (Ex.P4), on the same day by the defendant in favour of the plaintiff. The defendant had promised the plaintiff to refund the total amount of `1,60,000/- up to 30.11.1996, but he became dishonest and had issued a notice dated 11.12.1996 to the plaintiff by which he claimed `10,000/- along with interest from him. The defendant failed to abide by his contractual obligation which led to the issuance of a registered notice dated 17.03.1997 (Ex.P8) against postal receipt (Ex.P9), but despite that the defendant did not come forward to execute the sale deed, hence the suit was filed by the plaintiff. In his written statement, the defendant's stand was that he had borrowed a sum of `10,000/- from the plaintiff as he was in dire need of money, but he could not return it except the interest and as the plaintiff was exerting pressure upon him either to return the amount immediately with interest or to execute General Power of Attorney regarding the property in dispute, the defendant had to execute General Power of Attorney (Ex.P3) and Will (Ex.P4) in his favour. He also alleged that the plaintiff had obtained his signatures on certain blank papers which have been misused by him by converting them into agreements to sell (Ex.P1 and Ex.P5). He further alleged that he had already returned amount of `10,000/-, but the plaintiff did not return the blank signed papers and had rather threatened him that he would transfer the property in dispute to someone else on the basis of General Power of Attorney which prompted RSA No.2743 of 2009 (O&M) -3- ***** the defendant to cancel it vide notice dated 11.12.1996. The plaintiff filed replication and on the basis of the pleadings of the parties, issues were framed by the Trial Court on 27.03.1998. The plaintiff examined Bhupinder Singh, Deed-Writer as PW1, Dalip Chawla, attesting witness to the agreement to sell as PW2 and himself appeared as PW3, whereas the defendant moved an application (Ex.D1) to the administrative head of the plaintiff, whose reply is Ex.D2. Then he moved other applications (Ex.P3 & Ex.P4) and also tendered intimation by the senior colleague of the plaintiff as Ex.D5. The letter cancelling the General Power of Attorney was tendered as Ex.D6 and notice issued to the plaintiff about cancellation of the General Power of Attorney as Ex.D7. The Courts below have concurrently held that the agreement executed by the defendant in favour of the plaintiff was valid. However, it was observed that the said documents were executed in order to secure the repayment of loan and were not intended to sell and purchase the property in dispute. Hence, the Courts below allowed the alternative relief prayed for by the plaintiff, ordered refund of the sale consideration and the suit was, thus, partly decreed in that regard. Learned counsel for the appellant, in order to assail the findings of fact recorded by the Courts below, has argued that as the Courts below have held that the plaintiff was not entitled to decree for specific performance, therefore, he could not have been granted alternative relief and as such, the plaintiff should have filed a suit for recovery instead of filing a suit for specific performance of the contract. On the other hand, learned counsel for the respondent has submitted that the plaintiff had not only filed the suit for specific performance on the basis of agreement to sell, but had also made an alternative prayer for refund of the sale consideration along with interest which was within the jurisdiction of the Court to grant in view of Section 22 of the Specific Relief Act, 1963 [for short “the Act”]. I have heard both learned counsel for the parties and have perused the available record. RSA No.2743 of 2009 (O&M) -4- ***** Before adverting to their respective contentions, it would be worthwhile to refer to Section 22 of the Act, which is reproduced as under:- “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 clause (a) or clause (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 clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.” A bare look at the aforesaid provision shows that when a person files a suit for specific performance of a contract for the transfer of an immovable property, in appropriate case, he may also ask for possession, or partition and separate possession, in addition to such performance or any other relief to which he may be entitled including the refund of any earnest money or deposit paid by him, in case of refusal of specific performance, but none of these reliefs could be granted to him RSA No.2743 of 2009 (O&M) -5- ***** until and unless it is specifically claimed by him in his plaint and if, per chance, the plaintiff has omitted to make a prayer for such a relief in the plaint originally, the Court got the jurisdiction to allow him to amend the plaint on such terms as may be just, at any stage of proceeding, to include any of the aforesaid alternative prayers. Thus, the sine qua non in the aforesaid provision is the pleading in respect of any of the claims mentioned in Section 22(1)(a)(b) of the Act. Now the question is as to “whether, in the present case, the plaintiff should have filed a suit for recovery as suggested by learned counsel for the appellant or he was entitled to alternative relief which has been granted by the Courts below”. No doubt that the Court dealing with the suit for specific performance has the jurisdiction under Section 22 of the Act to grant any of the reliefs as provided in Section 22(1)(a)(b) of the Act if it is specifically claimed by the plaintiff in his plaint. In the present case, as it has been mentioned earlier, the plaintiff had filed a suit for specific performance of agreements to sell (Ex.P1 and Ex.P5) and had also sought alternative relief of refund of the sale consideration along with interest in case of refusal by the Court of the performance of the agreement to sell. Since there is a specific relief claimed in terms of Section 22(1)(a)(b) of the Act by the plaintiff in the plaint, there was no hindrance in the path of the Court in order to grant alternative relief. Therefore, I do not agree with the contention of learned counsel for the appellant that in the case of refusal of specific performance, where the plaintiff has also made an alternative prayer for refund of the sale consideration, the plaintiff should have filed a suit for recovery and the suit for specific performance with alternative prayer was not maintainable. In view of the aforesaid discussion, I do not find any force in the present appeal and as such, the same is hereby dismissed with costs of `5,000/-. October 07, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE