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2017 DIGILAW 777 (HP)

Ganga Ram v. Mohinder Singh

2017-07-07

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. The order under challenge in this petition, is Annexure P-3, passed by learned Civil Judge (Senior Division), Nalagarh, District Solan, H.P. in an application under Order 6 Rule 17 C.P.C. filed in Case No. 86/1 of 2009, titled Mohinder Singh vs. Ganga Ram, whereby the application for has been allowed and the amendment as sought in the plaint allowed. 2. The record reveals that the respondents herein, have filed a suit for decree of specific performance of the contract and permanent prohibitory injunction against the petitioners, hereinafter referred to as the defendants. The plaintiffs’ claimed that the defendants had agreed to sell the property in dispute vide agreement dated 03.03.2004, for a total consideration of Rs. 9,00,000/- out of which, a sum of Rs. 3,00,000/- was paid to the defendants in advance, i.e. Rs. 2,00,000/- on 03.03.2004 as earnest money when the agreement was executed and Rs. 1,00,000/- on 01.05.2004. 3. The plaintiffs have rightly performed their part of the contract/agreement. However, it is the defendants, who on one pretext or the other, failed to execute the sale-deed. By way of amendment, the following Para-7-A, which reads as under, was sought to be incorporated below para 7 in the original plaint: “7-A: That the defendants have wilfully and knowingly failed to perform their part of aforesaid agreement and unnecessarily harassed the plaintiffs and caused damages, loss, mental agony, strain and stress to the plaintiff. Thus the plaintiffs are legally liable for the alternative relief of recovery of Rs. 5,00,000/- i.e. earnest money of Rs. 3,00,000/- which amount has been paid to defendants by the plaintiffs and Rs. 2,00,000/- as compensation amount, on account of damages and loss so suffered by plaintiffs due to failure of defendants to perform their part of aforesaid agreement and defendants were and are legally liable to pay the said amount alongwith interest @ 12% per annum from the date of agreement dated 3.3.2004, till realization of the same...........” 4. Similarly, below para 11 (i), para (i) (a) of the plaint, which reads as under, was also sought to be incorporated: “11(i)(a): By granting in the alternative decree for recovery of Rs. 5,00,000/- (Rs. Five lacs only) i.e. Rs. 3,00,000/- (Rs. Three lacs only) as earnest money already paid by plaintiffs to the defendants and Rs. 2,00,000/- (Rs. Similarly, below para 11 (i), para (i) (a) of the plaint, which reads as under, was also sought to be incorporated: “11(i)(a): By granting in the alternative decree for recovery of Rs. 5,00,000/- (Rs. Five lacs only) i.e. Rs. 3,00,000/- (Rs. Three lacs only) as earnest money already paid by plaintiffs to the defendants and Rs. 2,00,000/- (Rs. Two lacs only) as damages and compensation, so suffered and sustained by plaintiffs due to failure of defendants to perform their part of contract/agreement dated 3.3.2004 wilfully and knowingly, alongwith with interest, charges, expenses etc. in favour of plaintiff and against the defendants, with costs, in the interest of justice..............” 5. It is seen that in the alternative, the plaintiffs had sought the decree for recovery of Rs. 5,00,000/- i.e. earnest money, amounting to Rs. 3,00,000/- and the damages by way of compensation, they allegedly suffered, amounting to Rs. 2,00,000/-. 6. Learned trial Judge, after taking on record the version of the defendants and hearing the parties on both sides, has arrived at a conclusion that the proposed amendment is essentially required and that the alternative relief by way of amendment can be legally sought at any stage of proceedings. The reference in this regard was made to the provisions contained under Section 21 of the Specific Relief Act, 1963. The provision contained under Section 21(5) of the Act and also proviso thereunder, which is relevant for the purpose of present controversy, is reproduced herein-below:- “Section 21..... (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint the Court shall, at any stage of the proceeding, allow him to amend the plaint, on such terms as may be just, for including a claim for such compensation.........” 7. Since, besides the damages by way of compensation, the plaintiffs have also sought the refund of earnest money they paid to the defendants, therefore, another provision relevant for the purpose of decision of this petition, is Section 22(1)(b) and Section 22(2) of the Act and also proviso thereunder. The same is also reproduced as under:- “Section 22.... (1)(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused. The same is also reproduced as under:- “Section 22.... (1)(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceedings, allow him to amend the plaint on such terms as may be just for including a claim for such relief........” 8. The plain reading of the above provisions amply demonstrates that in a case of specific performance of contract, the plaintiff is entitled to claim compensation also, however, by way of pleadings of such claim in the plaint. The proviso below Section 21(5) reveals that where the plaintiff has not claimed any such compensation in the plaint, the Court seized of the matter, at any stage of proceedings, can allow him to amend the plaint on such terms as deemed just and expedient. Clause (b) of Section 22(1) of the Act, provides for claiming the refund of earnest money by the plaintiff in a suit for specific performance and the proviso to Section 22(2) of the Act, provides that where the plaintiff has not claimed such relief in the plaint, the Court seized of the matter, at any stage of proceedings, can allow him to amend the plaint on such terms as deemed just and expedient. Section 22(3), further reveals that the power of the Court to pass decree for refund of the earnest money, shall be without prejudice to its power to award compensation under Section 21. Meaning thereby that the plea for the claim of recovery of compensation and earnest money is time barred, cannot be raised by the defendants in objection to the application for amendment of the pleadings, for the reason that the Court seized of the matter is competent to allow the plaintiff to include such claim in the plaint, at any stage of the proceedings. Therefore, the point urged on behalf of the petitioners-defendants that the claim for recovery of Rs. 3,00,000/- on account of refund of earnest money, whereas Rs. Therefore, the point urged on behalf of the petitioners-defendants that the claim for recovery of Rs. 3,00,000/- on account of refund of earnest money, whereas Rs. 2,00,000/- by way of compensation on account of damages suffered by the plaintiffs, the failure on the part of the defendants to execute the sale-deed, is not available to them. Such pleadings are rather required for just and effective decision of the controversy between the parties. Being so, this petition being devoid of any merit, is dismissed. Pending applications, if any, shall also stand disposed of.