ANUJA SHARMA Vs. MEMO DEVI & ORS

JUDGEMENT

(1.) C.M. Appl. No. 8376/2019 (for exemption)

(2.) (i). This Regular First Appeal under Sec. 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no. 1 in the suit impugning the Judgment of the trial court dated 27.10.2018 by which the trial court while dismissing the suit for specific performance filed by the respondent/plaintiff, has passed a money decree in favour of the respondent/plaintiff/buyer for a sum of Rs. 15,00,000.00, as the appellant/defendant no. 1/seller had received this amount from the respondent/plaintiff/buyer under the subject Agreement to Sell dated 08.12.2008. The total sale consideration under the Agreement to Sell was Rs. 17,00,000.00 out of which the respondent/plaintiff had admittedly paid to the appellant/defendant no. 1 a sum of Rs. 15,00,000.00. In terms of the Agreement to Sell, the respondent/plaintiff was to purchase two shops bearing nos. G-4 and G-89 of the property bearing Municipal No. 182, Ward No. IV, situated at Katra Mashru, Dariba Kalan, Delhi. It is noted that the defendant no. 1/seller did not lead any evidence in the suit and evidence was only led by defendant no. 4 as a bonafide purchaser without notice of the subject Agreement to Sell. In terms of the impugned judgment, the trial court while declining the relief of specific performance held that in exercise of powers under Order VII Rule 7 CPC, a money decree has to be passed in favour of the respondent/plaintiff/buyer for a sum of Rs. 15,00,000.00 received by the appellant/defendant no. 1/seller and the appellant/defendant no. 1/seller cannot be allowed to forfeit the amount of Rs. 15,00,000.00. The relevant observations of the trial court in the impugned judgment read as under:-

(3.) The Ld. counsel for the appellant/defendant no. 1 has argued by placing reliance upon Sec. 22 of the Specific Relief Act, 1963, which states that the relief with respect to refund of any earnest money or any deposit made under the agreement to sell cannot be decreed in favour of a plaintiff/buyer unless there is a specific pleading (and prayer) to this effect. It is argued that as per the relief clauses in the plaint, there is no relief which has been claimed for seeking refund of the amount of Rs. 15,00,000.00 paid by the respondent/plaintiff to the appellant/defendant no. 1 and therefore this is a case which is squarely covered by Sec. 22 of the Specific Relief Act, with the fact that the respondent/plaintiff at no point of time sought amendment of the plaint to seek refund of the advance price paid of Rs. 15,00,000.00 out of the total sale price/consideration of Rs. 17,00,000.00.