JUDGMENT : M.LAXMAN, J. APPEAL SUIT Nos.2361 & 2429 OF 2001 1. Since both the appeals arise out of same judgment, they are being disposed of by this common judgment. 2. Both these appeals assail the judgment and decree dated 18.07.2001 in O.S.No.6 of 1993 on the file of the Senior Civil Judge at Khammam, whereunder and whereby the suit filed by the plaintiff, who is the appellant in A.S.No.2429 of 2001, was partly decreed rejecting specific performance and directed the defendant, who is the appellant in A.S.No.2361 of 2001, to refund a sum of Rs.1,60,000/- received by him as part sale consideration with interest 18% per annum. 3. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the said suit. 4. The case of the plaintiff is that the defendant is the absolute owner of dry land admeasuring Ac.1-00 gunta, forming part of Sy.Nos.92, 93 and 96, situated at Velugumatla Village, Khammam Urban Mandal, Khammam District (hereinafter, referred to as ‘suit schedule property’). The defendant agreed to sell the suit schedule property to the plaintiff through the agreement of sale dated 30.04.1992 (Ex.A-2). The total sale consideration was Rs.2,00,000/-. The plaintiff had paid Rs.10,000/- on the date of agreement towards advance and subsequently he has paid Rs.90,000/- on 14.05.1992, Rs.15,000/- on 16.09.1992 and Rs.45,000/- on 18.09.1992. Thus, the plaintiff has paid total sum of Rs.1,60,000/- and the defendant has also handed over the original sale deed of the suit schedule property dated 01.05.1987. 5. It is the further case of the plaintiff that he was always ready and willing to perform his part of contract i.e., payment of balance sale consideration to get the registered sale deed executed in his favour. The plaintiff had been demanding the defendant to come forward to execute a registered sale deed by measuring the suit schedule property to ascertain the actual extent of land within the specific boundaries given in the suit schedule, but the defendant had been postponing the matter on one or other pretext. Therefore, the plaintiff has issued a legal notice and the defendant, despite receipt of the notice, did not give any reply. Therefore, the plaintiff filed the present suit. 6. The defendant filed his written statement denying the execution of agreement of sale and receipt of any sale consideration. Therefore, the plaintiff has issued a legal notice and the defendant, despite receipt of the notice, did not give any reply. Therefore, the plaintiff filed the present suit. 6. The defendant filed his written statement denying the execution of agreement of sale and receipt of any sale consideration. He has also stated that the plaintiff was not ready and willing to perform his part of obligation. He has also denied the demand of the plaintiff to measure the land and execute the sale deed. 7. The defendant claimed that the suit schedule property is his ancestral property. The plaintiff was running a chit fund company in the name of style ‘Sarasa Chit Fund Private Limited’ and the defendant took membership in the chit fund company of the plaintiff and has subscribed a chit worth of Rs.50,000/-. The defendant has received Rs.45,000/- on completion of the said chit. The daughter of the defendant was also a member of chit run by the plaintiff, and on demand, the plaintiff paid Rs.1,500/- towards chit. As such, the said payments are nothing to do with the agreement of sale. The defendant further stated that the agreement of sale was not attested and prayed to dismiss the suit. 8. The trial Court, on the basis of the above pleadings, has framed the following issues: “1. Whether the plaintiff paid Rs.90,000/- on 14-5-92, Rs.15,000/- on 16-9-1992 and Rs.45,000/- on 18-9-92 to the defendant towards sale consideration for the suit agreement of sale dated 30.04.1992? 2. Whether the plaintiff was always ready and willing to perform his part of the contract, but the defendant was at fault? 3. Whether the plaintiff is entitled to the relief of specific performance? 4. To what relief?” 9. The plaintiff, to support his case, examined P.Ws.1 to 3 and relied upon Exs.A-1 to A-8, Ex.C-1 and Exs.X-1 to X-4. The defendant, to support his case, examined D.W.1, but did not file any documentary evidence. 10. Though, initially the defendant denied the execution of agreement of sale and receipt of amount mentioned under the agreement of sale, in the course of evidence, he admitted that he has executed Ex.A-2 agreement of sale and also received part sale consideration of Rs.10,000/-at the time of execution of agreement of sale. He also admitted that the total sale consideration agreed was Rs.2,00,000/-. He also admitted that the total sale consideration agreed was Rs.2,00,000/-. However, he claimed that there was no readiness and willingness on the part of the plaintiff. Basing on the said admissions, the trial Court has upheld the execution of Ex.A-2 agreement of sale and partly decreed the suit directing the defendant to refund a sum of Rs.1,60,000/- to the plaintiff with interest @18% per annum and rejected the claim of the plaintiff for specific performance. Challenging the finding with regard to rejection of the claim of the plaintiff for specific performance of agreement of sale, he filed A.S.No.2429 of 2001 and challenging the finding with regard to giving direction to the defendant to refund the aforesaid sum along with interest, he filed A.S.No.2361 of 2001. 11. Heard both sides. 12. The grievance of the defendant is that the trial Court, without examining Ex.A-4, which was not proved, wrongly held that the consideration forming part of such agreement was paid to the defendant. It is also his contention that the trial Court, without any specific prayer for refund of money as required under Section 22 of the Specific Relief Act (for short, the Act), has wrongly ordered for refund of sale consideration of Rs.1,60,000/- with interest, and hence, the said finding is not sustainable. The plaintiff was also not ready and willing to perform his obligation and he has not paid sale consideration as agreed. 13. In the light of the said contentions, the following points emerge for consideration in these appeals: “1. Whether the plaintiff was always ready and willing to perform his part of obligation? 2. Whether the trial Court was justified in ordering the refund of the consideration paid with interest, in the absence of prayer to that effect? 3. To what relief?” Point No.1: 14. The main ground on which the specific performance was rejected is that the plaintiff has not entered into witness box to depose his case, instead, his GPA Holder was examined on his behalf. Such GPA was executed on 13.08.1999, whereas the suit was filed in the year 1993. The GPA Holder has also admitted in his cross-examination that he had no personal knowledge. 15. The learned counsel for the plaintiff has contended that the relief of specific performance is based on the written document i.e., Ex.A-2 agreement of sale. Such GPA was executed on 13.08.1999, whereas the suit was filed in the year 1993. The GPA Holder has also admitted in his cross-examination that he had no personal knowledge. 15. The learned counsel for the plaintiff has contended that the relief of specific performance is based on the written document i.e., Ex.A-2 agreement of sale. As per the terms of the agreement of sale, a regular sale deed was to be executed after measurement of the land which is available in the stipulated boundaries. In spite of repeated demands from the plaintiff to come forward for measurement of the land, there was no response from the defendant. Non-payment of consideration was on account of lack of interest shown by the defendant to measure the land. The contents of legal notice themselves indicate that the plaintiff had been always ready and willing to perform his part of obligation, but there was no response from the defendant. According to the learned counsel for the plaintiff, the deposition of GPA holder of the plaintiff corroborated the recitals in the legal notice which is sufficient to constitute the readiness and willingness on the part of the plaintiff. 16. On the contrary, the learned counsel for the defendant has submitted that readiness and willingness is a personal knowledge of the plaintiff and that personal knowledge cannot be attributed to his GPA holder. The GPA holder of the plaintiff can only depose in respect of acts done on the strength of GPA and nothing more. In support of his contention, he has relied upon the decisions of Apex Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2005) 2 SCC 217 , Mohinder Kaur v. Sant Paul Singh, (2019) 9 SCC 358 and Vidhyadhar v. Manikrao, (1999) 3 SCC 573 . 17. A reading of the above judgments of the Apex Court shows that the readiness and willingness are the facts which are within the knowledge of the holder of the agreement. It is also held that the GPA holder cannot speak the facts which are within the knowledge of the principal and he can only say what the acts he has done on the strength of GPA. When such is the law, the non-examination of the plaintiff is a fatal to the case of the plaintiff. It is also held that the GPA holder cannot speak the facts which are within the knowledge of the principal and he can only say what the acts he has done on the strength of GPA. When such is the law, the non-examination of the plaintiff is a fatal to the case of the plaintiff. The GPA holder of the plaintiff subsequently admitted in his cross-examination that he had no knowledge about the facts which constitute the agreement and the GPA was only given in the year 1999. Till then, he had no personal knowledge about the facts which the plaintiff knows. The readiness and willingness must be established although i.e., from the date of the agreement till the date of the decree for specific performance is passed. 18. It is to be noted that apart from non-examination of the plaintiff, he has not placed any evidence to show that he was ready with the balance sale consideration. The balance sale consideration was payable only Rs.40,000/-. The evidence shows that the plaintiff had been paying the amounts in installments in spite of specific stipulation made in the agreement of sale specifying the period when the amounts have to be paid. The plaintiff initially infracted the conditions of the agreement of sale. The evidence shows that in spite of such infraction of terms of the contract, the defendant honoured the contract by receiving part sale consideration. The plaintiff’s own admissions show that the defendant had given him the original document relating to the suit property also. When such is the conduct of the defendant, the plaintiff cannot blame that non-performance of the contract was on account of the defendant and not his own conduct. 19. The other issue canvassed before this Court was that Ex.A-4 has not been proved. As per Ex.A-4, an amount of Rs.15,000/- was paid by the plaintiff to the defendant on 16.09.1992. The defendant, in his written statement, denied the entire agreement of sale and also denied his signatures on vakalat. The evidence of the plaintiff through P.Ws.2 and 3 established that under Exs.A-3 and A-5, the plaintiff has paid sum of Rs.90,000/- and Rs.45,000/- respectively. 20. The plaintiff also claimed that the defendant had not shown any interest to measure the land. Absolutely there is no written denial from the plaintiff in that regard. The evidence of the plaintiff through P.Ws.2 and 3 established that under Exs.A-3 and A-5, the plaintiff has paid sum of Rs.90,000/- and Rs.45,000/- respectively. 20. The plaintiff also claimed that the defendant had not shown any interest to measure the land. Absolutely there is no written denial from the plaintiff in that regard. Under the agreement, no obligation is casted on the defendant to measure the land. It is for the plaintiff to take steps to measure the land if he really wants to proceed further, but he had not done so. 21. The trial Court, considering Exs.A-3 and A-5, and by comparing the signature of the defendant on Ex.A-4 with Ex.C-1, which is the signature of the defendant on notice, came to the conclusion that the defendant has received the money under Ex.A-4 apart from other amounts, as established by the plaintiff. This finding of the trial Court requires no interference, as the same is based on well founded appreciation of evidence. Seeing from any angle, the plaintiff is not entitled for specific performance in the light of the above findings. Therefore, point No.1 is answered in favour of the defendant. Point No.2: 22. The learned counsel for the defendant has contended that there was no prayer in the suit for refund of the amount, as such, the trial Court ought not to have directed the defendant to refund the amount with interest. 23. The learned counsel for the plaintiff has contended that though there is no specific prayer, the Court, by invoking power under Order VII Rule 7 of CPC, can direct the defendant to refund the amount received by him towards sale consideration. 24. In view of the above submissions, now the question arises whether the amount which is ordered to be refunded is earnest money or deposit so as to constitute a prohibition under Section 22 of the Act, which says that unless specifically a claim is made for refund of the earnest money or deposit, the Court cannot grant such a relief. 25. In this regard, it is relevant to extract Section 22 of the Act and Order VII Rule 7 of CPC and they read as under: “ Section 22 of the Specific Relief Act: 22. 25. In this regard, it is relevant to extract Section 22 of the Act and Order VII Rule 7 of CPC and they read as under: “ Section 22 of the Specific Relief Act: 22. Power to grant relief for possession, partition, refund of earnest money, etc:— (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for- (a) possession, or partition and separate possession, of the property in addition to such performance; or (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: Provident that where the plaintiff has not claimed any such relief 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 relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21. Order VII Rule 7 of the Civil Procedure Code: 7. Relief to be specifically stated:-Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.” 26. The recitals of the agreement of sale show that Rs.10,000/- which was paid on the date of execution of agreement of sale was towards part sale consideration and there is no term that such amount was paid towards security for the due performance of the contract. 27. Now the further question is whether the earnest money or deposit includes sale consideration. 27. Now the further question is whether the earnest money or deposit includes sale consideration. In order to understand the same, it is relevant to refer to the judgment of the Apex Court in Shree Hanuman Cotton Mills v. Tata Air Craft Limited, 1969 (3) SCC 522 whereunder it has been held as follows: “14. The first question that arises for consideration is whether the payment of Rs. 2,50,000 by the appellants was by way of deposit or earnest money. Before we advert to the documents evidencing the contract in this case, it is necessary to find out what in law constitutes a deposit or payment by way of earnest money and what the rights and liabilities of the parties are, in respect of such deposit or earnest money. 15. Borrows, in Words & Phrases, Vol. II, gives the characteristics of "earnest". According to the author: "An earnest must be a tangible thing.. That thing must be given at the moment at which the contract is concluded, because it is something given to bind the contract, and, therefore, it must come into existence at the making or conclusion of the contract. The thing given in that way must be given by the contracting party who gives it, as an earnest or token of good faith, and as a guarantee that he will fulfill his contract, and subject to the terms that if, owing to his default, the contract goes off, it will be forfeited. If, on the other hand, the contract is fulfilled, an earnest may still serve a further purpose and operate by way of part payment." 16. If, on the other hand, the contract is fulfilled, an earnest may still serve a further purpose and operate by way of part payment." 16. Benjamin, in his book on 'Sale’, 8th Edition, after referring to clause 17 of the Statute of Frauds and Section 4(1) of the Sale of Goods Act, 1893 providing for giving "something in earnest to bind the -contract, or in part payment" says, at page 219: “give something in earnest' or 'in part payment,' are often treated as meaning the same thing, although the language clearly intimates that the earnest is something to bind the bargain,' or, 'the contract,' whereas it is manifest that there can be no part payment till after the bargain has been bound, or closed." The author further states that there are two distinct alternatives, viz., a buyer may give the seller money or a present as a token or evidence of the bargain quite apart from the price, i.e., earnest, or he may give him part of the agreed price -to be set off against the money to be finally paid, i.e., part payment and that if the buyer fails to carry out the contract and it is rescinded, cannot recover the earnest, but he may recover the part payment. But this does not affect the seller's right to recover damages for breach of contract unless it as by way of deposit or guarantee in which case it is forfeited. It is further stated that an earnest does not lose its character because the same thing might also avail as a part payment. 17. Regarding "deposit", the author states at p. 946, that a deposit is not recoverable by the buyer, for a deposit is a guarantee that the buyer shall perform his contract and is forfeited on his failure to do so and if a contract distinguishes between the deposit and installments of price and the buyer is in default, the deposit is forfeited. 18. Halsbury, in "Laws of England", Vol. 34, III Edition, in paragraph 189 at page 118, dealing with deposit, states: "Part of the price may be payable as a deposit. A part payment is to be distinguished from a deposit or earnest. A deposit is paid primarily as security that the buyer, will duly accept and pay for the goods, but, subject thereto, forms part of the price. A part payment is to be distinguished from a deposit or earnest. A deposit is paid primarily as security that the buyer, will duly accept and pay for the goods, but, subject thereto, forms part of the price. Accordingly, if the buyer is unable or unwilling to accept and pay for the goods, the seller may repudiate the contract and retain the deposit." Earl Jowitt, in his Dictionary of English Law says "Giving an earnest or earnest-money is a mode of signifying assent to a contract of sale or the like, by giving to the vendor a nominal sum (e.g., a shilling) as a token that the parties are in earnest or have made up their minds." 19. In Hove v. Smith (L.R. [1884] Ch. D. 89.) Fry, L.J., discussed the history of "earnest", which is identical with a deposit. In that case, the plaintiff agreed to purchase a property for the price mentioned in the agreement and paid pound £500 on the signing of the agreement “as a deposit and in part payment of the purchase-money." There were other stipulations in the agreement regarding title to the property and the payment of the balance of the purchase money. The plaintiff, apprehending that the defendant-vendor would resell the property, brought an action against him for specific performance of the agreement; but the suit was dismissed on the ground that there had been inordinate delay on the plaintiff’s part in insisting on the completion of the contract. The plaintiff appealed. Before the Court of Appeal a request was made on his behalf for leave to amend the plaint that if specific performance could not be decreed, he should get a return of the deposit of pound 500. Leave was granted by the Appellate Court and the question hence arose -as to whether the plaintiff was entitled to get a refund of the said amount. In dealing with the deposit claimed back by the plaintiff, Cotton, L.J., at page 95, observes: "What is the deposit? The deposit, as I understand it, and using the words of Lord Justice James (in L. R. 10 Ch. 512), is a guarantee that the contract shall be performed. In dealing with the deposit claimed back by the plaintiff, Cotton, L.J., at page 95, observes: "What is the deposit? The deposit, as I understand it, and using the words of Lord Justice James (in L. R. 10 Ch. 512), is a guarantee that the contract shall be performed. If the sale goes on, of course, not only in accordance with the words of the contract, but in -accordance with the intention of the parties in making the contract, it goes in part, payment of the purchase money for which it is deposited; but if on the default of the purchaser the contract goes off, that is to say, if he repudiates the contract, then, according to Lord Justice James, he can have no right to recover the deposit." Bowen, L.J., at page 98, states: "We have therefore to consider what in ordinary parlance, and as used in an ordinary contract of sale, is the meaning which business persons would 'attach to the term 'deposit'. Without going at length into the history, or accepting all that has been said or will be said by the other members of the Court on that point, it comes shortly to this, 'that a deposit, if nothing more is said about it, is, according to the ordinary interpretation of business men, a security for the completion of the purchase. But in what sense is it a security for the completion of the purchase ? It is quite certain that the purchaser cannot insist on abandoning his contract and yet recover the deposit, because that would be to enable him to take advantage of his own wrong" Fry, L.J., at page 101, observes: "Money paid as a deposit must, I conceive, be paid on some terms implied or expressed. In this case no terms are expressed, and we must therefore inquire what terms are to be implied. The terms most naturally to be implied appear to me in the case of money paid on the signing of a contract to be that in the event of the contract being performed it shall be brought into account, but if the contract is not performed by the payer it shall remain the property of the payee. The terms most naturally to be implied appear to me in the case of money paid on the signing of a contract to be that in the event of the contract being performed it shall be brought into account, but if the contract is not performed by the payer it shall remain the property of the payee. It is not merely a part payment, but is then also an earnest to bind the bargain so entered into, and creates by the fear of its forfeiture a motive in the payer to perform the rest of the contract." Ultimately, the Court of Appeal rejected the claim of the plaintiff for refund of the deposit. 20. In Soper v. Arnold (L.R. (1889) 14 A.C. 429, the House of Lords had to consider the right of the plaintiff therein to claim a refund of the deposit made by him. In that case the plaintiff had contracted to purchase a piece of land and entered into an agreement with the vendee. The agreement provided that the purchaser viz., the plaintiff, should make a deposit and it further provided that if the vendee failed to comply with the conditions, the deposit should be forfeited. The plaintiff, accordingly, paid the deposit but as he was not in a position to complete the contract by paying the balance purchase money, the contract could not be fulfilled. When in another litigation it was subsequently -found that the vendor's title to the property was defective, the plaintiff brought an action to recover his deposit on the ground of mistake and failure of consideration. The suit was dismissed and the Court of Appeal also confirmed the said decision. The House of Lords also finally rejected the plaintiff's claim. In discussing the nature of the deposit made by the plaintiff under the agreement, Lord Macnaghten at page 435 observes: "The deposit serves two purpose-if the purchase is carried out it goes against the purchase-money, but its primary purpose is this, it is a guarantee that the purchaser means business; and if there is a case in which a deposit is rightly and properly forfeited it is, I think, when a man enters into a contract to buy real property without taking the trouble to consider whether he can pay for it or not." In Farr, Smith & Co. v. Messrs, Ltd. ( L.R. (1928] 1 K.B.D. 397) dealing with the question as to whether the payment was by way of earnest given to bind the contract, or it was a part payment towards the price. Wright J., observes at page 408: "Certain characteristics, however, seem to be clear, An earnest must be a tangible thing, in which definition it may be that a deposit is included, but in the old cases it was always some tangible thing. That thing must be given at the moment at which the contract is concluded, because it is something given to bind the contract, and, therefore, it must come into existence at the making or conclusion of the contract. The thing given in that way must be given by the contracting party who gives it, as an earnest or token of good faith, and as a guarantee that he will fulfil his contract, and subject to the terms that if, owing to his default, the contract goes off, it will be forfeited. If on the other hand, the contract is fulfilled, an earnest may still serve a further purpose and operate by way of part payment." The learned Judge, quoting the observations of Hamilton, J., in Sumner and Leivesley v. John Brown & Co.(25 Times LR 745 ), observes at page 409: " ‘Earnest'. . . meant something given for the purpose of binding a contract, something to be used to put pressure on the defaulter if he failed to carry out his part. If the contract went through, the thing given in earnest was returned to the giver, or, if money, was de- ducted from the price. If the contract went off through the giver's fault the thing given in earnest was forfeited." The Judicial Committee had to consider in Chiranjit Singh v. Har Swarup (A.I.R. 1926 P.C. 1) the question as to whether a payment maade by way of earnest money by a buyer could be recovered when the buyer had committed breach of contract. In that case the plaintiff had entered into a contract with the defendant for purchase of a property. One of the terms of the contract of sale was: "Willing on old terms namely earnest twenty thousand balance in two moieties. In that case the plaintiff had entered into a contract with the defendant for purchase of a property. One of the terms of the contract of sale was: "Willing on old terms namely earnest twenty thousand balance in two moieties. first payable on executing conveyance, last within six months net cash we receive 4 lakhs 76,000." The plaintiff did not pay the earnest money so nomine but sent two cheques amounting to Rs. 1,65,000/- and obtained a receipt. This amount was paid towards the sale price of the estate in question out of the total consideration of Rs. 4,76,000/-. Later the plaintiff informed the defendant that he was not in a position to complete the purchase and gave opportunity to the latter to sell the property to any other party. Therefore it was clear that the plaintiff-purchaser was unable or unwilling to complete the contract of purchase. The, plaintiff, notwithstanding his default, sued to recover the entire sum of Rs. 1,65,000/- paid by him. The High Court held that as the plaintiff had broken the contract, he must lose the earnest money of Rs. 20,000/- but was entitled to a refund of the balance amount of Rs. 1,45,000/- from and out of the amounts paid by him on that account. The plaintiff, dissatisfied with the decision of the High Court, carried the matter in appeal to the Judicial Committee for obtaining relief of repayment of earnest money also. The Judicial Committee agreed with the High Court that from and out of the amounts paid by the plaintiff, a sum of Rs. 20,000/- was earnest money and there was nothing in the contract to suggest that the seller had agreed to sacrifice the stipulated earnest. Regarding the legal incidents of earnest money, the Judicial Committee stated: "Earnest money is part of the purchase price when the transaction goes forward; it is forfeited when the transaction falls through, by reasons of the fault or failure of the vendee." Holding that the above principle applied squarely to the contract before them, they dismissed the plaintiff’s appeal for refund of earnest. 21. From a review of the decisions cited above, the following principles emerge regarding "earnest": (1) It must be given at the moment at which the contract is concluded. (2) It represents a guarantee that the contract will be fulfilled or, in other words, 'earnest' is given to bind the contract. 21. From a review of the decisions cited above, the following principles emerge regarding "earnest": (1) It must be given at the moment at which the contract is concluded. (2) It represents a guarantee that the contract will be fulfilled or, in other words, 'earnest' is given to bind the contract. (3) It is part of the purchase price when the transaction is carried out. (4) It is forfeited when the transaction falls through by reason of the default or failure of the purchaser. (5) Unless there is anything to the contrary in the terms of the contract, on default committed by the buyer, the seller is entitled to forfeit the earnest.” 28. A glance of the above ratio of the Apex Court shows that the earnest money or the deposit which are the words contained under Section 22 of the Act relate to the money paid towards security for the due performance of the contract and this money becomes purchase price when the transaction is carried forward. Further, the earnest money or the deposit entitles the party to the contract to forfeit such amount in the event of default by the other party. As per the recitals in the document under Ex.A-2, the amount paid is towards part sale consideration and not earnest money or the deposit. Further, there is no term in the agreement of sale to indicate that the amounts paid towards part sale consideration are liable to be forfeited in the event of default committed by the plaintiff. 29. In the absence of those two parameters, the amount which has been paid either at the time of entering the agreement or subsequently shall be taken to mean that the said amount was paid towards sale price and not towards earnest money or deposit. Therefore, the amount which the plaintiff paid was not an earnest money or deposit so as to come under Section 22 of the Act. This means, Section 22 of the Act does not apply to the facts of the present case. 30. Now the further question is in the absence of relief claimed by the plaintiff for refund of the amount, which he has paid under the agreement of sale, due to the refusal to enforce the contract, can be directed to be paid. 31. 30. Now the further question is in the absence of relief claimed by the plaintiff for refund of the amount, which he has paid under the agreement of sale, due to the refusal to enforce the contract, can be directed to be paid. 31. As per Order VII Rule 7 of CPC, the Court is empowered to grant a relief which is not asked, however subject to certain conditions. In this regard, it is apt to refer to the judgment of the Apex Court in Rajendra Tiwary v. Basudeo Prasad, (2002) 1 SCC 90 wherein it has been held as follows: “10. A plain reading of Order VII Rule 7 makes it clear that it is primarily concerned with drafting of relief in a plaint. It is in three parts -- the first part directs that the relief claimed by the plaintiff simply or in the alternative shall be stated specifically. It incorporates in the second part the well settled principle that it shall not be necessary to ask for general or other relief which may always be given as the Court may think just on the facts of the case to the same extent as if it has been asked for. The third part says that in regard to any relief claimed by the defendant in his written statement, the same rule shall apply. 11. In Firm Sriniwas Bam Kumar vs. Mahabir Prasad & Ors. [A.I.R. 1951 S.C. 177] it is laid down by this Court: ‘Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings & which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendants own plea cannot possibly be regarded with surprise by the latter & no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. A demand of the plaintiff based on the defendants own plea cannot possibly be regarded with surprise by the latter & no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. 12. In that case the plaintiff filed the suit for specific performance of the contract for sale. He alleged that he paid part of the consideration under the contract to the defendant. The defendant denied the execution of the contract. However, he pleaded that he took money from the plaintiff as a loan. The plaintiff failed to prove the contract for sale though the plaintiff did not claim alternative relief for recovery of the amount paid under the contract. The Court passed a decree for recovery of the amount alleged to have been taken by the defendant as a loan under Order VII Rule 7. 13. In Bhagwati Prasad Vs. Chandramaul [A.I.R. 1966 S.C. 735] the plaintiff laid the suit for ejectment of the defendant on the ground that he let out the building to the defendant on rent in different portions on completion of construction of each portion. The defendant pleaded that he constructed the house on the land which belong to the plaintiff. The agreement between them was that he would remain in possession of the house until the amount spent by him in construction the house would be repaid by the plaintiff. The agreement of tenancy pleaded by the plaintiff and the case set up by the defendant were disbelieved by the trial court; nonetheless the trial court held that there existed the relationship of landlord and tenant, fixed a reasonable rent and decreed the suit for ejectment of the defendant and also for recovery of the rent at the rate fixed by it. The High Court set aside the decree of the trial court with regard to the agreement of tenancy but confirmed the decree for ejectment of the defendant. On appeal to this Court on a certificate granted by the High Court, Gajendragadkar, C.J. speaking for a four-Judge Bench observed (AIR p.738, para 10): The general rule no doubt is that the relief should be founded on pleadings made by the parties. On appeal to this Court on a certificate granted by the High Court, Gajendragadkar, C.J. speaking for a four-Judge Bench observed (AIR p.738, para 10): The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another. 14. Where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief, Order VII Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted. 15. These are cases where the courts which tried the suits were ordinary civil court having jurisdiction to grant alternative relief and pass decree under Order VII Rule 7. A court of Rent Controller having limited jurisdiction to try suits on grounds specified in the special Act obviously does not have jurisdiction of the ordinary civil court and therefore cannot pass a decree for eviction of the defendant on a ground other than the one specified in the Act. If, however, the alternative relief is permissible within the ambit of the Act, the position would be different.” 32. If, however, the alternative relief is permissible within the ambit of the Act, the position would be different.” 32. It is also apt to refer to the decision of a division Bench of Karnataka High Court in Gangubai, W/o. Maruti Ghadi v. Rama Sateri Ghadi, wherein it has been held as follows: “5. Similarly, the Division Bench of this Court in the case of Rangappa (supra) has held that the court while moulding the relief must take care to see that the relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit; the court has to further see that it occasions no prejudice or causes embarrassment to the other side and it is not larger than the one claimed in the suit, even if the plaintiff is really entitled to it, unless and until he amends the plaint and it should not barred by time on the date of presentation of the plaint. However, in the instant case, the trial Court has not adverted to any of the aforesaid aspects of the matter, and in a cryptic and cavalier manner by merely referring to Order VII Rule 7 of the Code of Civil Procedure has granted the relief of partition by taking recourse to Order VII Rule.” 33. A glance of the above two judgments shows that the relief which is to be granted is not inconsistent with the plaintiff’s claim. Further, it must be found on the same cause of action on which the relief claimed in the suit. Further, no prejudice shall be caused to the either side and the relief to be granted shall not be larger than the one claimed in the suit and it shall not be barred by the limitation on the date of presentation of plaint. 34. In the present case, there is a specific finding from the trial Court that the plaintiff paid Rs.1,60,000/- to the defendant and the defendant received the said amount. This means both the parties are aware of the receipt of money and it was adjudicated and found in favour of the plaintiff. This means, the defendant received the amount of Rs.1,60,000/-towards sale consideration. This means both the parties are aware of the receipt of money and it was adjudicated and found in favour of the plaintiff. This means, the defendant received the amount of Rs.1,60,000/-towards sale consideration. When the specific performance is rejected, and even if the plaintiff was not granted refund of amount under such decree, he is still at liberty to recover the amount by instituting a separate suit. The defendant holds such money as a trustee. Therefore, the plaintiff is entitled to institute a separate suit for recovery which is not barred by limitation. When such is the case, the trial Court granting the relief of refund of sale consideration is justified and it is not prohibited under Section 22 of the Specific Relief Act. 35. The learned counsel for the defendant has relied upon the judgments of the Apex Court in Sheshambal v. Chelur Corpn. Chelur Building, (2010) 3 SCC 470 , Bachhaj Nahar v. Nilima Mandal, MANU/SC/8199/2008 and Narayan Reddy Gulam Mustafa, MANU/AP/0782/2015 to contend that the relief which is not claimed cannot be granted. 36. A close scrutiny of the facts in the said cases would show that there were no pleadings in the suits in respect of the reliefs which were granted. Further, no opportunity was given to the party affected by such a relief before granting such relief. In the present case, the plaintiff’s own pleadings show the payment of sale consideration of Rs.1,60,000/- and it was adjudicated when there was denial from the defendant. Ultimately, there was a finding from the trial Court with regard to payment of Rs.1,60,000/-, and such amount falls within the parameters under which the power to be exercised under Order VII Rule 7 of CPC. Therefore, I do not find any material to take different view than what was taken in the judgment of the trial Court. In fact, the said judgment is inconsonance with the principles laid down by the Apex Court in Rajendra Tiwary’s case (supra). In Firm Sriniwas Bam Kumar v. Mahabir Prasad, AIR 1951 SC 177 which was referred in Rajendra Tiwary’s case (supra), the suit was filed for specific performance, and though the defendant denied the execution of agreement, admitted that the amount which is mentioned under the sale agreement was in fact received as a loan. In Firm Sriniwas Bam Kumar v. Mahabir Prasad, AIR 1951 SC 177 which was referred in Rajendra Tiwary’s case (supra), the suit was filed for specific performance, and though the defendant denied the execution of agreement, admitted that the amount which is mentioned under the sale agreement was in fact received as a loan. On the basis of such admission, though the Court denied the specific performance, has granted relief of recovery of such amount from the defendant. That decision squarely applies to the present facts of the case. Therefore, I do not find any material illegality in the judgment of the trial Court in directing the defendant to refund the amount of Rs.1,60,000/-, which the defendant received. 37. The learned counsel for the defendant has submitted that the interest awarded is highly disproportionate and it is more than what the Reserve Bank of India grants on lending of the money. 38. In the present case, the suit agreement is of the year 1992. At that time, the prevailing rate of interest was higher than the present rate. However, considering the past rate of interest and the present rate of interest, this Court feels that awarding rate of interest @ 12% per annum is justified in the facts and circumstances of the case. Therefore, the rate of interest is modified from 18% per annum to 12% per annum. This point is decided accordingly. Point No.3: 39. In the result, A.S.No.2429 of 2001 is dismissed and A.S.No.2361 of 2001 is partly allowed, modifying the finding of the trial Court with regard to grant of interest from 18% per annum to 12% per annum. The other findings of the trial Court are confirmed. There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.