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J. B. PARDIWALA, R. MAHADEVAN
K. R. Suresh – Appellant
Versus
R. Poornima – Respondent
JUDGMENT :
J.B. PARDIWALA, J.
For the convenience of exposition, this judgment is divided into the following parts: -
INDEX
| A. | FACTUAL MATRIX |
| i. | Judgment of the Trial Court |
| B. | IMPUGNED JUDGMENT |
| C. | SUBMISSIONS ON BEHALF OF THE APPELLANT |
| D. | SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 1-4 |
| E. | SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 5-7 |
| F. | ANALYSIS |
| i. | Validity of the Forfeiture of Advance Money |
| a. | Difference between Earnest Money and Advance Money |
| b. | Permissible Extent of Forfeiture |
| ii. | Law on the Alternative Relief of Refund of Earnest Money under Section 22 of the 1963 Act |
| G. | CONCLUSION |
1. Leave granted.
2. This appeal arises from the judgment and order passed by the High Court of Karnataka at Bengaluru dated 05.08.2021 in R.F.A. No. 386/2013 (SP) (“impugned judgment”) by which the High Court dismissed the appeal preferred by the appellant (original plaintiff) and thereby affirmed the judgment and order dated 24.11.2012 passed by the Court of V Additional City Civil and Sessions Judge at Bengaluru City, dismissing O.S. No. 3559/2008 instituted by the appellant herein for the specific performance of contract.
A
(1) Agreement to Sell – Suit for Specific Performance – Plaint may be amended at any stage of proceedings to enable plaintiff to seek alternative relief, including that of refund of earnest money and....
Point of Law : Agreement of Sale - On the basis of such admission, though the Court denied the specific performance, has granted relief of recovery of such amount from the defendant.
Relief of refund in specific performance cases must be specifically claimed in the plaint, or it cannot be granted by the court.
The plaintiff must demonstrate continuous readiness and willingness to perform a contract for specific performance; failure to do so justifies dismissal of the suit.
(1) Agreement to Sell – Unless plaintiff specifically seeks refund of earnest money at the time of filing of suit or by way of amendment, no such relief can be granted to him – Prayer clause is a sin....
A party can claim a refund of earnest money if the other party fails to provide a valid title, and time is not necessarily the essence of the contract.
(1) Though, principle that time is not essence of contract in a suit for specific performance of immovable property deserves its consideration in appropriate cases, said principle cannot be applied a....
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