The main legal point established is that in cases where specific performance is refused, the court may direct a refund of earnest money, even if not specifically claimed in the plaint, to prevent unjust enrichment.

A.K. PATHAK, J.(ORAL)

1. Respondent no.1-plaintiff filed a suit for specific performance of agreement to sell dated 5th April, 2000 (Ex.PW1/7) against the appellant-defendant no.1 before the trial court. Vide judgment and decree dated 1st December, 2012 trial court has declined the relief of specific performance to respondent no.1, however, has passed a money decree in the sum of Rs.3 lacs together with interest @ 6% per annum from the date of filing of the suit till realisation of decretal amount in favour of respondent no.1 and against the appellant.

2. That is how appellant is before this Court by way of present appeal under Section 96 of the Code of Civil Procedure, 1908 (the

3. Agreement to Sell reads as under :

“Code”, for short).

AGREEMENT TO SELL & PURCHASE

This Agreement is made on this 5th day of April, 2000 between Ashok Kumar Arora S/o Radhey Sham Arora R/o T-25/5 (ground floor) Village Khirki, Malviya Nagar, New Delhi hereinafter referred to as party of the 1st part and D.S. Sodhi S/o Shri K.S. Sodhi R/o B-4/6, Vasant Vihar, New Delhi hereinafter referred to party of the 2nd Part. Whereas party of the 1st Part is duly constituted GPA of Prem Singh Chauhan S/o R.S. Chauhan in respect of property bearing Khasra No.1 min., (T-25/5) Village Khirki Malviya Nagar, New Delhi hereinafter referred to as the Property. Whereas the party of 1st part has agreed to sell the ground floor of the property to the party of the 2nd part for a sale consideration of Rs.5,00,000/-(Five Lacs). Whereas party of the 2part has aid a sum of Rs.3 lacs to the party of the 1st part in cash who acknowledges the receipt of the same. Whereas party of the 1st part agrees & binds himself to convey/transfer the property in the name of the party of the 2nd part vide sale deed on the receipt of balance consideration of Rs.2 lacs which shall be paid within a period of 2 years from today & in the event of default either party shall be entitled to get this Agreement enforced through competent court of law. Whereas party of 1st part declares that the property is free from all encumbrances & that he shall not create an interest in the property in favour of another person during the subsistence of this Agreement & in order to protect the interest of party of 2nd part, part of 1st part has handed over his original GPA executed by Prem Singh Chauhan to the party of 2nd part that the legal heirs and assigns of parties of both the part are bound by this Agreement.

Witnesses:-

1.Sd/-Shaheed Ahmad Party of the First Part

S/o Sh. Sirajuhaq C-3 Sd/-

Main Market, Vasant Ashok Kumar Arora

Vihar, N. Delhi T-25/5 (GF) Village

Khirki, Malviya Nagar,

New Delhi

2.Sd-Jasminder Singh

S/o Aara Singh

90/90 Malviya Nagar

ND – 17

3.Sd/-Ashok Kumar Mishra Party of the S/o

Shivdhan Mishra Second Part

C-3 Main Market, V.V. Sd/-

New, Delhi – 110057 D.S. Sodhi

B-4/6, Vasant Vihar New Delhi

4. Respondent no. 1 had paid Rs.3 lacs towards earnest money. It is this amount for which money decree has been passed and earnest money has been ordered to be refunded to respondent no.1 together with interest @ 6% per annum. Money decree has been passed even though no alternative prayer for refund of earnest money was made in the plaint.

5. Learned counsel for the appellant has vehemently contended that decree of compensation could not have been passed by the trial court in absence of any alternate prayer made in the plaint. Such a relief has thus barred in view of Section 21 of the Specific Relief Act, 1963 (the Act, for short) which provision trial court has not taken note of. It is contended that the alternate relief of recovery of compensation could not have been granted in absence of their being any pleading or prayer in the plaint. Reliance has been placed on Shamsu Suhara Beevi versus G. Alex and Another (2004) 8 SCC 569. This is the only point which has been urged and pressed during the course of hearing.

6. Relevant it would be to refer