The court can grant alternative relief of refund even if not explicitly claimed, ensuring fair justice is delivered in contract disputes.

JUDGMENT :

N.Sathish Kumar, J.

Challenging the judgment and decree of the trial Court in dismissing the suit filed for specific performance, the plaintiff is before this Court by way of this First Appeal.

2. The parties are stated herein as they are ranked before the trial Court.

3. Brief facts of the case of the plaintiffs, are as follows:

The defendants agreed to sell the suit property for a total consideration of Rs.27 lakhs, out of which, they had received Rs.25 lakhs as advance amount and the agreement for sale, dated 10.08.2014, was executed. It is also agreed between the parties that the sale shall be completed within 24 months from the date of agreement. The plaintiffs were always ready and willing to perform their part of the contract. The plaintiffs have also informed their readiness and waited in the Sub- Registrar Office from 10 am to 5 pm, but the defendants did not come to the Sub-Registrar Office to execute the sale deed. Even prior to that, the plaintiffs sent a legal notice, dated 25.07.2014. The defendants sent reply notice with false allegations. Hence, the suit has been filed by the plaintiffs.

4. It is the contention of the defendants that they never intended to sell the property at any point of time. In fact, at the instance of the first defendant's brother-in-law, the defendants had borrowed Rs.20 lakhs for the purpose of quarry business and borrowed Rs.5 lakhs on 23.09.2010 from the first plaintiff. Towards such loan, the sale agreement was also executed by the wife of the first defendant. Thereafter, once again, as the first defendant required another Rs.5 lakhs from the plaintiffs, the plaintiffs advanced Rs.5 lakhs and by cancelling the earlier agreement executed in favour of the wife of the first defendant, the suit agreement came to be executed. Hence, it is the contention that the loan amount which was borrowed @ 30% interest, the defendants have paid interest at the said rate till 08.02.2014. As the business of the defendants also is not yielding any income, they have not paid the interest thereafter. Hence, the suit has been filed by the plaintiffs.

5. Based on the above pleadings, the trial Court has framed the following issues:

(i) Whether the plaintiffs are entitled to the relief as prayed for in the plaint ? and

(ii) To what other relief the plaintiffs are entitled to ?

6. On the side of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-6 were marked. On the side of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-5 were marked.

7. On appreciation of the evidence, the trial Court found in paragraph 10 that the agreement is not intended for sale and it came to be executed in a loan transaction and it was also held that the defendants are liable to pay the amount of Rs.25 lakhs with interest @ 18% p.a. and the trial Court refused to grant the specific performance relief. Having held that the defendants are liable to pay the amount received in the agreement and not granted an alternative relief, on the only ground that no prayer for return of advance is sought for in the plaint. However, the trial Court granted an opportunity to the plaintiffs to file fresh suit for recovery of the amount. Challenging the said findings, the present First Appeal came to be filed by the unsuccessful plaintiffs.

8. Though the appeal has been filed challenging the judgment and decree of the trial Court in refusing to grant specific performance relief, learned counsel for the appellants fairly submitted that it would suffice if the appellants are granted an alternative relief of refund of the advance amount, as held by the trial Court.

9. Learned