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2015 DIGILAW 726 (JHR)

Malabika Ghosh v. Balwant Kaur

2015-06-30

AMITAV K.GUPTA

body2015
Order It appears from the record that the respondent had taken no objection from the counsel and thereafter has not appeared in this case on several dates. Consequently, this appeal/ cross-objection is being heard ex parte. 2. F.A.NO.67 of 2007 was preferred against the judgment and decree dated 15.02.2007 and 24.02.2007 respectively passed in T.S.NO.69/2003 by the learned Sub-Judge-I, Ranchi whereby the suit of the plaintiff was dismissed with respect to specific performance for execution of sale deed by the defendants. While dismissing the suit of the plaintiff the defendants were directed to return a sum of Rs.3,00,000/- which was received by original defendant i.e. the father(since deceased). The present appellants were substituted as legal heirs/representatives of original defendant. 3. F.A.NO.67/2007 was dismissed for non-prosecution vide order dated 22.12.2014. The present cross-objection/Appeal was filed in F.A.NO.67/2007 under Order 41 Rule 22 of the Code of Civil Procedure. 4. The appellant has submitted that the learned court below has erred in passing the decree for refund of the earnest money, in the absence of any pleading or relief sought for by the plaintiff/respondent in the court below. In support of her contention she has relied on the decision in the case of Adcon Electronics Pvt. Ltd. Vs. Daulat and Anr., reported in (2001) 7 SCC 698 and submitted that the Apex Court, in the said decision, while interpreting Section 22 of the Specific Relief Act, has held that in absence of any relief prayed by the plaintiff for possession or refund of any earnest money deposited by him, the Court shall not grant any relief in the matter. 5. Heard. Perused the impugned order, Lower court records and the plaint. 6. From perusal of the plaint it would be evident that there is no pleading neither any relief sought by the plaintiff for refund of the earnest money or possession of the property. Section 22 of the Specific Relief Act, 1963 enumerates power to the court to grant relief with respect to possession of the property, refund of any earnest money deposited or paid by him in case his claim for specific performance is refused. That the language used in Sub-Clause (2) of Section 22 of the Specific Relief Act, 1973 specifically bars a Court from granting any relief with respect to possession or refund of earnest money deposited or paid in case when such relief has not been claimed. That the language used in Sub-Clause (2) of Section 22 of the Specific Relief Act, 1973 specifically bars a Court from granting any relief with respect to possession or refund of earnest money deposited or paid in case when such relief has not been claimed. The legislative mandate has also been deliberated and affirmed by the Apex Court in the case of Adcon Electronics Pvt. Ltd. (Supra) as cited by the counsel for the defendants/petitioners. 7. In the given facts and circumstances impugned judgment and decree whereby the appellants/defendants were ordered to refund the earnest money amounting to Rs.3,00,000/- to the plaintiff/respondent is hereby set aside. In the result present cross-objection is allowed with modification of the judgment and decree to the extent noted above.