IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14.09.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.1114 of 2011 and M.P.No.1 of 2011 Saroja Ammal, represented by Power Agent Ganesan Ottankadu, Kattukottyagai Thirukanangoor village Sankarapuram Taluk Villupuram District .. Appellant /2nd Defendant Vs. 1. Rangasamy Kounder .. 1st Respondent/ Plaintiff 2. Krishnamurthy .. 2nd Respondent/ 1st Defendant Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the judgement and decree dated 12.3.2011 made in A.S.No.93 of 2010 on the file of the Principal District Court, Villupuram, confirming the judgement and decree dated 25.8.2010 made in O.S.No.112 of 2005 on the file of the Subordinate Court, Kallakurichi. For Appellant .. Mr. B. Gurunathan J U D G E M E N T The 2nd defendant in O.S.No.112 of 2005 on the file of the Subordinate Court, Kallakurichi, is the appellant. 2. The 1st respondent/ plaintiff entered into an agreement of sale with one Muthu Kounder the father of the appellant and the 2nd respondent on 28.10.1998 for purchasing the property belonging to Muthu Kounder for a sum of Rs.1,50,000/- and advance of Rs.1,25,000/- was paid which was acknowledged in the agreement of sale. The said Muthu Kounder shall execute the sale deed whenever demanded by the 1st respondent/ plaintiff. Taking into consideration between the relationship between the parties the 1st https://hcservices.ecourts.gov.in/hcservices/ respondent/ plaintiff made a demand on 14.10.2005 by issuing a notice calling upon the appellant and 2nd respondent to execute the sale deed as per the agreement of sale executed by Muthu Kounder and that was denied and therefore, the suit was filed for specific performance of agreement of sale. 3. The defendants namely the appellant and the 2nd respondent contesting the suit stating that no agreement of sale was executed by their father Muthu Kounder and no amount was received as advance and therefore they are not liable to execute the sale deed and also took the plea that the suit is barred by limitation. 4. Both the Courts below held that the agreement of sale was executed by Muthu Kounder in favour of the 1st respondent/ plaintiff and an advance of Rs.1,25,000/- was received by Muthu Kounder. Nevertheless, the Courts below declined to grant the relief of specific performance holding that the 1st respondent/plaintiff was not ready and willing to perform his part of the contract and therefore he is not entitled to claim the relief of specific performance, though the claim is within the period of limitation. However, both the Courts granted the decree directing the appellant and the 2nd respondent to pay a sum of Rs.1,25,000/- with interest at the rate of 6% per annum. This is challenged in the Second Appeal. 5. The learned counsel for the appellant submitted that under Section 22 (1) (b) and Section 22 (2) of the Specific Relief Act, no relief for refund of any earnest money or deposit shall be ordered unless the same has been specifically claimed and in that case the 1st respondent has not claimed the refund of advance amount and therefore without permitting the 1st respondent to amend the pleading, the Courts should not have granted a decree for refund of advance amount by the appellant and the 2nd respondent. He therefore submitted that the decree granted by the Courts below directing the appellant and the 2nd respondent to pay a sum of Rs.1,25,000/- with interest at the rate of 6% per annum from the date of plaint is illegal as per Section 22(2) of the Specific Relief Act. 6. On the basis of the submissions made by the learned counsel for the appellant, the following substantial question of law is framed: Whether the relief granted by both the Courts below is correct, when there is a bar under Section 22 (2) of Specific Relief Act, 1963 that no relief shall be granted by the Court unless it has been specifically claimed in a specific performance of a contract ? 7. I am unable to accept the contention of the learned counsel for the appellant. It is true that the 1st respondent has https://hcservices.ecourts.gov.in/hcservices/ not prayed for refund of the advance amount and under Section 22 (2) of the Specific Relief Act no relief for refund of advance amount shall be granted unless it has been specifically claimed. Nevertheless, the proviso to Section 22 (2) of the Specific Relief Act, enables the Court to grant such a relief even though the same was not prayed for in the plaint by allowing the plaintiff to amend the plaint for including the claim. According to me, as per the proviso to Section 22 (2) of the Act, whenever a Court feels that the specific performance cannot be granted and the party must be directed to repay the advance received under the agreement, a duty is cast upon the Court to direct the plaintiff to amend the plaint to include that claim. Therefore, in a suit for specific performance when the Court declined to grant the relief of specific performance and directed to refund of advance amount, the Court ought to have directed the plaintiff to amend the plaint and thereafter decreed the amount. In this case, the Courts below did not follow that procedure and according to me, the failure on the part of the Courts below should not be taken advantage by the appellant to contend that the Courts have no power to order the refund. It is an acceptable principle of law that the parties cannot take advantage of the Courts mistake. The Courts below have rightly held that having regard to the conduct of the 1st respondent/ plaintiff, he is not entitled to the relief of specific performance, but at the same time, the defendants namely the appellant and the 2nd respondent should not be allowed to get unjust enrichment and therefore the Courts granted the relief of refund of advance amount received by them. Hence, considering all these aspects, though under Section 22 (2) of the Specific Relief Act, the Court ought not to have granted the relief of refund of advance amount, for the reasons stated above, the appellant cannot take advantage of the Courts mistake in not directing the 1st respondent/ plaintiff to amend the plaint. Further, as per the provisio to Section 22 (2) of the Specific Relief Act, it is only a procedural irregularity which is curable and even in the second appeal that can be cured. Therefore, I do not find any substance in the arguments of the learned counsel for the appellant and the substantial question of law is answered against the appellant and the Second Appeal is dismissed. 8. In the result, the Judgement and Decree of the Courts below are confirmed and the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is also closed. Sd/- Deputy.Registrar. /true copy/ Sub Asst.Registrar. kr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal District Judge, Villupuram. 2. The Subordinate Judge, Kallakurichi. 1 cc to Mr.B. Gurunathan, Advocate, Sr. 56778 S.A.No.1114 of 2011 and M.P.No.1 of 2011 SGL (CO) kk 29/9 https://hcservices.ecourts.gov.in/hcservices/