In so far as refund of earnest money is concerned, it is to be stated here that though the trial Court has held that the agreement dated 21.11.1988-Ex. P1 has been proved, the first appellate Court has come to a conclusion that the agreement has come into existence in suspicious circumstances. Be that as it may. Section 22 of the Specific Relief Act, 1963 ('Act' for short) provides for the power of the Court to grant relief for possession, partition, refund of earnest money etc. Sub-section (2) of Section 22 states that no relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. The proviso states 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.
10. In the instant case, the plaintiff has not claimed refund of' earnest money nor has he made an application either before the trial Court or before the first appellate Court or atleast in this appeal for amendment of the prayer so as to include the refund of earnest money Therefore, question of refund of earnest money without there being a pleading does not arise. Section 24 of the Act states that the dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiffs right to sue for compensation for the breach of such contract or part, as the case may be, but shall not bar his right to sue for any other relief to which he may be entitled, by reach of such breach. It is clear from this provision that if the plaintiff is entitled for refund of the earnest money, he is not barred from filing a fresh suit for the said relief. Therefore, he is entitled to file a Civil suit for refund of the earnest money in accordance with law.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Regular Second Appeal No. 753/2006 (SP)
Decided On: 19.11.2012
M. Chowdappa Vs. Venkatarayappa
Hon'ble Judges/Coram:
S. Abdul Nazeer,J.
Citation: MANU/KA/1720/2012
