IMPORTANT POINT
Agreement to Sell – Relief of refund of any earnest money or deposit paid cannot be granted unless it has been specifically claimed.

TEJINDER SINGH DHINDSA, J.

1. This order shall dispose of RSA Nos.792 of 2017 and RSA No.888 of 2017 both titled as Harish Kumar and others Vs. Mohinder Singh and others as common issue is involved in these two connected regular second appeals.

2. Plaintiff(s), namely, Harish Kumar, Paramjit Singh and Kamal Kumar filed a suit for possession against the defendants seeking a decree of possession by way of specific performance of an agreement to sell dated 23.02.2005. Permanent injunction was also sought restraining the defendants from alienating the suit property. Vide judgment dated 03.12.2012 Trial Court denied the main relief of specific performance of the agreement to sell but partly decreed the suit directing the defendants to return the earnest money of Rs.8,25,000/- to the plaintiffs along with interest @ 8% per annum.

3. Defendants preferred civil appeal against the judgment and decree dated 03.12.2012 passed by the trial Court. Even the plaintiff(s) filed cross-objections under Order 41 Rule 22 CPC seeking modification of the judgment and decree dated 03.12.2012 to the extent that interest @ 18% per annum be awarded on the return of earnest money i.e. Rs.8,25,000/-. Civil appeal filed by the defendants and the cross-objections filed by the plaintiff(s) have been dealt with by the Lower Appellate Court vide composite judgment dated 22.08.2016 and whereby appeal of the defendants has been allowed and the judgment and decree dated 03.12.2012 passed by the trial Court has been set aside. The cross appeal preferred by the plaintiffs stands dismissed.

4. It is against the afore-noticed brief factual backdrop that these two connected regular second appeals have been filed by the plaintiffs/appellants. RSA No.792 of 2017 assails the judgment dated 22.08.2016 passed by the Lower Appellate Court to the extent the judgment of the Trial Court had been set aside and whereby defendants/respondents herein had been directed to return earnest money of Rs.8, 25,000/- along with interest @ 8% per annum. RSA No.888 of 2017 impugns the judgment dated 22.08.2016 passed by the Lower Appellate Court whereby the cross-objections preferred by the appellants to the extent of award of interest @ 18% along with earnest money of Rs.8, 25,000/- has been dismissed.

5. Learned counsel representing the plaintiffs/appellants in these two connected second appeals would submit that the entering into the agreement to sell dated 23.02.2005 in respect of the suit property was duly established. That apart entrustment of Rs.8,25,000/- towards earnest money had been admitted by the defendants (respondent herein). It is submitted that the trial Court had returned a positive finding that title of the defendants to the suit property was defective and as such they were not competent to enter into any agreement to sell qua such property and under such circumstances to meet the ends of justice, the alternate relief of refund of earnest money of Rs.8,25,000/- had been directed. Accordingly, counsel argues that the Lower Appellate Court has clearly erred in setting aside the well-reasoned judgment of the trial Court and whereby discretionary relief of refund of earnest money had been awarded.

6. Insofar as rejection of the cross-objections are concerned, it is contended that the agreement to sell was in the nature of a commercial deal and the amount of Rs.8,25,000/- had been entrusted to the defendants (respondents herein) on 23.02.2005 and under such circumstances, the trial Court while granting the alternate relief of refund of earnest money ought to have granted interest at a higher rate than 8% per annum. Counsel submits that even though in the cross-objections interest @ 18% per annum had been claimed but he would restrict the prayer for payment of interest @ 12% per annum.

7. Having heard counsel for the appellants at length and having perused the pleadings on record, this Court is of the considered view that there is no merit in these two regular second appeal