THE DIRECTOR OF INCOME TAX vs. M/S IBM WORLD TRADE CORPORATION

® IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 01st DAY OF FEBRUARY, 2021

PRESENT

THE HON'BLE MRS. JUSTICE S.SUJATHA

AND

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

RFA.NO.278 OF 2012 (SP)

BETWEEN:

SMT. SUSHEELA M. PAREKH W/O SRI. MAHESH CHANDRA PAREKH AGED 65 YEARS R/AT NO.20/1, 5TH MAIN ROAD GANDHINAGAR BANGALORE-560 009.

....APPELLANT

(BY SRI. GOPAL SINGH, ADVOCATE)

AND:

SRI M. S. MANOHARAN S/O SRI. SUBBURAMAN AGED 55 YEARS R/AT MUTHIYALPET KANCHEEPURAM TALUK & DISTRICT TAMIL NADU - 631 601.

….RESPONDENT

(BY SRI. B.N. ANANTHA NARAYANA, ADVOCATE FOR C/R)

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 06.01.2012 PASSED IN O.S.NO.814/2007 ON THE FILE OF THE XI ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 10.11.2020, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

JUDGMENT

The captioned appeal is filed by the defendant questioning the judgment and decree passed by the Court of first instance in O.S.No.814/2007, wherein the suit of the respondent/plaintiff is decreed directing the present appellant/defendant to execute registered sale deed in respect of the suit schedule property.

The respondent/plaintiff is a businessman dealing with Silk Sarees and other allied fabrics both as a wholesale as well as a retail dealer. The respondent/plaintiff has showrooms in

Bengaluru City, one at Chennai and one at Kanchipuram. The average turnover of respondent/plaintiff is about Rs.10,00,000/- per day. The respondent/plaintiff is having wholesale and retail showrooms at Arcot Srinivasachar street, Bengaluru. The adjacent building bearing No.58, New Nos.14 and 15 is the subject matter of the suit and the same is owned by the appellant/defendant. The suit schedule property consists of basement, ground, first and second floors. The respondent/plaintiff and the appellant/defendant are known to each other and their relationship is very cordial. The appellant/defendant's son namely, Sunil approached the respondent/plaintiff and offered to sell the suit schedule property and accordingly, sale price was fixed at Rs.1,98,00,000/-.

As a token advance, the respondent/plaintiff paid a sum of Rs.2,00,000/-. On 24.04.2006, the appellant/defendant executed an agreement and in the said agreement, the stipulated time to get the sale deed executed was fixed at three months.

The

respondent/plaintiff in fact wanted the sale deed to be executed but, however, the appellant/defendant insisted that she needs three months time. At the time of executing the agreement, the appellant/defendant further insisted that three months time is not enough and insisted for five months period. The appellant/defendant insisted for five months since a large quantity of stock was yet to be disposed off and the same would be cleared only during reopening of schools. The respondent/plaintiff in terms of the agreement paid further advance amount of Rs.8,01,000/- by issuing a cheque drawn on Bank of UTI. The respondent/plaintiff, in all, paid Rs.10,01,000/- and it was agreed that sale transaction would be completed within a period of five months.

The respondent/plaintiff though was ready to pay the balance sale consideration, the appellant/defendant went on postponing the same. It was stated by appellant/defendant that her son is finding it difficult to exhaust the sale of stock and therefore, she kept on requesting to grant further time.

The respondent/plaintiff having regard to the relationship accepted for extension of time. It was only on 08.11.2006, the respondent/plaintiff was compelled to write a letter to the appellant/defendant calling upon the appellant/defendant to execute sale deed by receiving the balance sale consideration. The appellant/defendant issued a legal notice on 15.11.2006 intimating the termination of agreement of sale. The respondent/plaintiff issued a reply to this notice. Inspite of legal notice/letter, the appellant/defendant did not come forward to perform her part of contract and as such, the respondent/plaintiff was compelled to file the suit for specific performance of contract in O.S.No.814/2007.

The appellant/defendant, on receipt of summons, contested the proceedings by filing the written statement. The appellant/defendant stoutly denied the entire averments made in the plaint. The appellant/defendant specifically contended that time is the essence of contract. The appellant/defendant specifically contended in the written statement that

respondent/plaintiff was not ready and willing to complete the sale transaction within the stipulated period of five months. The appellant/defendant also specifically contended that as per clause (6) of the agreement, in the event, the respondent/plaintiff fails to perform his part of contract within two months, he would not be even entitled to seek refund of the advance paid by him. The appellant/defendant also specifically contended that notice of cancellation of sale agreement to the respondent/plaintiff was sent on 15.11.2006.

The appellant/defendant also specifically contended that the time stipulated in agreement, at the first instance, was changed at the instance of the respondent/plaintiff. The appellant/defendant specifically contended that she never requested for any extension of time nor she expressed her helplessness in performing her part of contract. The allegations in the plaint insofar as the appellant/defendant seeking extension of time was specifically denied and seriously disputed by the appellant/defendant. At

para 14 of the written statement, the appellant/defendant specifically contended that the respondent/plaintiff was not ready and willing to complete the sale transaction within the stipulated time. It is also specifically stated in the written statement that on account of failure on the part of the respondent/plaintiff in paying the balance sale consideration, the appellant/defendant has made alternate financial arrangement and on these set of facts, the appellant/defendant prayed for dismissal of the suit.

On the basis of the above pleadings, the Trial Court formulated the following issues:

"1. ¢: 24.4.2006 gÀ PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæzÀ C£ÀéAiÀÄ vÀ£Àß ¥Á°£À J®è PÀvÀðªÀåUÀ¼À£ÀÄß ¤ªÀð»¸À®Ä ªÁ¢ ¸ÀzÁ Eaѹ vÀAiÀiÁgÁVzÀÝgÀÄ JA§ÄzÀ£ÀÄß ªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?

The respondent/plaintiff in support of his contention examined himself as PW.1 and in support of ocular evidence produced documentary evidence vide Exs.P-1 to P-8. The appellant/defendant in support of her contention examined herself as DW.1 and examined her son as DW.2 and by way of rebuttal evidence relied on documentary evidence vide Exs.D- 1 to D-12.

The Trial Court after appreciation of oral and documentary evidence, answered issue No.1 in the affirmative by holding that respondent/plaintiff was ever ready and willing to perform his part of contract. The Trial Court answered issue Nos.2 and 3 in the negative by holding that appellant/defendant has failed to establish that on account of breach on the part of the respondent/plaintiff, the agreement of sale executed on 24.04.2006 is cancelled. The Trial Court has further answered issue No.4 in the affirmative holding that respondent/plaintiff is entitled for discretionary relief of specific performance of contract.

The Trial Court while dealing with issue Nos.1 to 4 has come to conclusion that the material on record and the recitals in agreement of sale as per Ex.P-1 does not establish that time is the essence of contract as alleged by the appellant/defendant. The Trial Court has further recorded a finding that appellant/defendant has failed to establish that it is the respondent/plaintiff who insisted for five months time to complete the sale transaction. Since there is no rebuttal evidence lead in by the appellant/defendant, Trial Court was of the view that time is not the essence of contract.

The Trial Court on readiness and willingness has taken note of Ex.P-8, which is the IT returns relating to the firm and the firm has declared its income of Rs.32,58,350/- for the year 2005-06. The Trial Court has also taken judicial note of the fact that on the earlier occasion, the suit was decreed and as per the direction of the Court, the respondent/plaintiff has deposited the balance sale consideration of Rs.1,88,00,000/-. Relying on these material aspects, the Trial Court was of the

view that the respondent/plaintiff has financial capacity to mobilize the funds. On these set of reasonings, the Trial Court has proceeded to hold that respondent/plaintiff has established his readiness and willingness to perform his part of contract.

While examining issue No.3, the Trial Court was of the view that since time is not the essence of contract, the appellant/defendant could not have cancelled the agreement of sale as per Ex.P-3. Since time is not essence of contract, there is no lawful termination of the agreement of sale as alleged by the appellant/defendant. While answering issue No.4, the Trial Court held that the respondent/plaintiff has paid an advance amount of Rs.10,00,000/- and if the discretionary relief of specific performance is not granted, it is the respondent/plaintiff who would be put to hardship and inconvenience. The appellant/defendant has received a sum of Rs.10,00,000/- and if she is directed to execute the registered sale deed in terms of the agreement of sale as per

Ex.P-1, no hardship would be caused to the appellant/defendant. On these set of reasonings, the Trial Court has answered issue No.4 in the affirmative. The Trial Court has proceeded to decree the suit granting discretionary relief of specific performance and has accordingly, directed the appellant/defendant to execute registered sale deed by receiving balance sale consideration of Rs.1,88,00,000/-.

Being aggrieved by the judgment and decree, the appellant/defendant is before this Court.

to be completed within a period of five months. He would also submit before us that clause (6) of the agreement of sale contemplates a specific clause that would clearly demonstrate the intention of the parties. He would submit to this Court that this material aspect is not dealt with by the Trial Court while recording its finding as to whether time was the essence of contract. Learned counsel would further submit that the Trial Court has not at all examined the evidence of PW.1, wherein it is elicited that subsequent to agreement of sale pertaining to suit schedule property, the respondent/plaintiff had opened a new shop at OTC Road, Chickpet, Bengaluru on 01.10.2006 and the respondent/plaintiff had invested a sum of Rs.2,00,00,000 in opening that shop. In this background, learned counsel for the appellant/defendant would submit to this Court that the Trial Court has totally misread Exs.P-5 and P-6. The Trial Court has virtually proceeded to presume that under Exs.P-5 and P-6, the respondent/plaintiff had a sum of Rs.2,00,00,000/- so as to perform his part of contract. He

would vehemently argue and contend before this Court that as per Exs.P-5 and P-6, the respondent/plaintiff has requested for credit facility from the financial institution and the same were granted conditionally to be utilized for specific purpose. He would submit to this Court that the credit facility would not in itself establish the financial capacity to perform his part of contract. This material aspect is virtually misread and thereby the Trial Court has erred in arriving at a wrong conclusion. Learned counsel would take us to Ex.P-4 which is the letter addressed by respondent/plaintiff and would submit to this Court that on meticulous reading of Ex.P-4 it can be gathered that respondent/plaintiff was not ready and willing to complete his part of contract.

suit was decreed and respondent/plaintiff was called upon to deposit the balance sale consideration, even after granting two months of time, the respondent/plaintiff was not in a position to deposit the balance amount and accordingly, extension of time was sought. This application seeking extension of time in itself would disentitle the respondent/plaintiff from seeking discretionary relief of specific performance. Learned counsel appearing for the appellant/defendant would further take us to agreement of sale as per Ex.P-1 and would submit to this Court that it is the respondent/plaintiff who got the suit agreement drafted and it was at his request the initial time of two months was changed to three months and then finally to five months. The appellant/defendant had no obligation in the agreement. All that she was required was to come forward to execute sale deed. It was for the respondent/plaintiff to mobilize Rs.1,88,00,000/- and thereafter intimate the appellant/defendant. In the present case on hand, the respondent/plaintiff had no balance sale consideration and he

was not even in a position to mobilize the same. There is absolutely no material on record to demonstrate that he had balance sale consideration and he was willing to secure sale deed by making payment. All these material aspects are not properly appreciated by the Court below. The clinching rebuttal evidence is discarded without assigning any reasons. On these set of grounds, learned counsel appearing for the appellant/defendant would submit to this Court that the judgment and decree of the Trial Court suffers from serious perversity and same is palpably erroneous and would warrant interference by this Court.

appellant/defendant in regard to stand taken by the appellant/defendant that time is the essence of contract. He would submit to this Court that the parties to the suit agreement had absolutely no intention to treat time as the essence of contract. He would even otherwise submit to this Court that since there is a clause contemplating refund of advance amount in the event of failure to complete the transaction, time cannot be an essence of contract. Learned counsel for the respondent/plaintiff would further submit to this Court that the period mentioned at the first instance in the suit agreement was in fact altered from two months to five months at the instance of the appellant/defendant. He would further submit to this Court that the appellant/defendant has taken recourse to cancel the suit agreement only after receipt of letter issued by the respondent/plaintiff as per Ex.P-2, which is dated 08.11.2006. Learned counsel for the respondent/plaintiff would further contend that the extension/alteration in regard to period stipulated in the

agreement was at the instance of appellant/defendant since her son who was carrying business in the suit schedule property was unable to clear the stock. Insofar as allegations that respondent/plaintiff has withdrawn an amount of Rs.1,88,00,000/- which was deposited after passing of the decree in the earlier round of litigation, learned counsel for the respondent/plaintiff would submit to this Court that since this Court allowed the appeal filed by the appellant/defendant and the judgment and decree was set aside, the respondent/plaintiff being a businessman was justified in withdrawing the amount and as such, no adverse inference can be drawn against the withdrawal of the amount by the respondent/plaintiff.

willingness is ready to deposit the amount as and when Court directs to deposit the same. Learned counsel would further submit to this Court that the respondent/plaintiff has been cross-examined extensively and there is absolutely no cross- examination in regard to capability of respondent/plaintiff to pay the balance sale consideration. On these set of grounds, the learned counsel for the respondent/plaintiff submits to this Court that the judgment and decree passed by the Trial Court in decreeing the suit filed by the respondent/plaintiff is in accordance with law and is based on cogent and clinching evidence adduced by the respondent/plaintiff. The judgment and decree does not suffer from any perversity and as such, would not warrant any interference by this Court.

1) Whether the finding of the Court below that time is not the essence of contract, is perverse and palpably erroneous?

2) Whether the Court below was justified in holding that respondent/plaintiff is ready and willing to perform his part of contract, is perverse and contrary to rebuttal evidence adduced by the appellant/defendant?

3) Whether the finding of the Court below that if the discretionary relief of specific performance is not granted, it would cause hardship and inconvenience to the respondent/plaintiff, is perverse and the same suffers from serious infirmities?

Re: Point No.1:

there is a specific recital that the sale transaction has to be completed within five months. At clause (4), it is clearly stated that time is the essence of contract. At clause (6) of the suit agreement, it is agreed by the parties that if the agreement holder evades to fulfill his part of the contract within two months, then he cannot claim any refund of advance paid by him to the vendor. At clause (3) of the suit agreement, in place of three months, the same is altered and it is written as five months. The appellant/defendant had even affixed the signature for having carried out alteration. However, in the subsequent clause, the period of two months fixed is unaltered. The appellant/defendant has not seriously disputed her signature at clause (3) where she has affixed her signature. What is disputed by the appellant/defendant is that initially the period stipulated in the agreement was two months and at the instance of the respondent/plaintiff, the time stipulated in the suit agreement was altered thrice. Later it was mentioned as three months and lastly, it was altered as

five months. Since the parties to the agreement have mutually agreed in extending time, having regard to the peculiar facts and circumstances of the case, it indicates that time was never intended by the parties as the essence of the contract. The appellant/defendant has not substantiated the plea that time was the essence of contract and respondent/plaintiff has evaded to perform his part of contract within the stipulated time. It is trite law that where a contract relates to sale of an immovable property, it will normally be presumed that time is not the essence of the contract. The Hon'ble Apex Court in catena of judgments has held that fixation of period within which the contract has to be performed does not make a stipulation as to time as the essence of contract. The agreement also has to be examined in terms of the relationship between the parties. During trial, it is forthcoming that appellant/defendant had acquaintance and cordial relationship with the respondent/plaintiff. Hence, the time stipulated has to be understood that parties intended to

complete the transaction at the earliest. The suit agreement in the present case on hand provides that vendor shall have the right to waive off the advance payment, in the event, the vendee evades or fails to fulfill the contract within two months and the same would re-affirm the presumption that in a contract for sale of immovable property, time is not the essence of contract.

Re: Point No.2:

The respondent/plaintiff has specifically stated at para 9 that appellant/defendant's son who was carrying on business was required to dispose of the stock and in this background, it is the appellant/defendant who sought time. This averment in the plaint that appellant/defendant was unable to handover possession since her son was carrying on business in the suit schedule property and he was not in a position to clear the stock is pleaded for the first time in the plaint. The above said

averment is significant and would also have a bearing on the controversy between the parties. The above said contention of the respondent/plaintiff does not find a place in the suit agreement as per Ex.P-1. Even in Ex.P-2, which is a letter written by the respondent/plaintiff, there is absolutely no whisper in regard to appellant/ defendant's son being in possession of the suit schedule property. The appellant/defendant on receipt of notice as per Ex.P-2 has issued a notice intimating the cancellation of suit agreement as per Ex.P-3. As a reply to this cancellation, the respondent/plaintiff issued a reply notice as per Ex.P-4. Para 5 of the said reply notice vide Ex.P-4 would clinch the issue in the present case on hand. Even in this reply notice which is dated 13.12.2006, the respondent/plaintiff has not stated anything in regard to handing over of possession. There is no reference that appellant/defendant's son was squatting over the suit schedule property. There is no recital in the suit agreement which obligates the appellant/defendant to

handover possession. At para 5 of the reply notice as per Ex.P-4, the respondent/plaintiff has alleged that appellant/defendant has failed to provide documents pertaining to the property agreed to be sold. It is also stated at para 5 that unless appellant/defendant furnishes this document, the respondent/plaintiff will not be able to secure permission and clearance from the Income Tax authorities to complete the formalities for execution and registration of sale deed. The averments made in para 5 of the reply notice issued by respondent/plaintiff is given a total go-by at the time of filing of the suit. The respondent/plaintiff at the time of filing of the suit has come up with a totally different version. In the plaint, the respondent/ plaintiff has stated that appellant/defendant's son is unable to clear the stocks lying in the suit schedule property and as such, they need some more time to execute the sale deed. If this inconsistent plea in the reply notice as per Ex.P-4 and the averments made in para 9 of the plaint are examined, the defence set up by the

appellant/defendant that alteration in the time stipulated in the suit agreement was at the instance of the respondent/plaintiff stands probabalised.

perusal of Ex.P-5, even as on the date of filing of the suit, the respondent/plaintiff had not mobilized Rs.1,88,00,000/-. What was likely to be released by Axis Bank was towards interior decoration, furniture and fitting for new branches.

"10. The plaintiff submits that, on 1st day of October 2006, he opened a new showroom at OTC Road, Chickpet, Bangalore, which was attended by the defendant, her husband and also by her son and at that time also the plaintiff insisted that the defendant should fix a date for registration. The defendant promised again that within a short time a date will be fixed and the same will be informed to the plaintiff."

opened a new showroom at OTC Road, Chickpet, Bangalore and hence, it would probabalize that the money mobilized through credit facility by the respondent/plaintiff was to carry out interior decoration, furniture and fitting etc., for new branches and renovation of existing branches. The averments made at para 10 would also indicate that respondent/plaintiff as on the date of filing of the suit, neither was ready to perform his part of contract by mobilizing the funds nor he had any intention to complete the sale transaction by paying the balance sale consideration of Rs.1,88,00,000/- and thereby the ingredients of willingness is found missing in the present case on hand. The fact that the period stipulated in the agreement was changed thrice also indicates that respondent/plaintiff had no intention to perform his part of contract. The respondent/plaintiff has contended during trial that the said alteration in regard to period was altered at the instance of the appellant/defendant. The same is not at all substantiated by the respondent/plaintiff. Introducing new

terms and modification of existing terms which are contrary to the agreement shows lack of willingness on the part of respondent/plaintiff to perform his part of contract. The entire material on record indicates that respondent/plaintiff never intended to keep the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrived. It is trite law that person seeking benefit of specific performance of contract must manifest that his conduct has been blemishless through out so that Court would grant relief on the basis of conduct of person seeking relief. Readiness and willingness has to be analysed on the basis of the conduct of the parties, attendant circumstances and also evidence on record.

enable the respondent/plaintiff in seeking discretionary relief of specific performance of contract. On meticulous perusal of the pleadings and documents produced along with the plaint, the same would establish that respondent/plaintiff had no money as on the date of the filing of the suit so as to perform his part of contract. One more relevant factor which would go against the respondent/plaintiff is failure on the part of the respondent/plaintiff to deposit the amount after the suit was decreed. The suit was decreed by the Trial Court by judgment and decree dated 06.01.2012. The Trial Court having decreed the suit directed the respondent/plaintiff to deposit balance sale consideration of Rs.1,88,00,000/- within two months from the date of the order. The respondent/plaintiff filed an application on 05.03.2012 which is one day prior to expiry of two months. At para 1 of the affidavit filed in support of the application filed under Sections 148 and 151 of CPC, the respondent/plaintiff has averred that he has applied for loan with Standared Chartered Bank at Chennai and it is also stated

in the affidavit that Bank has also approved loan to the extent of Rs.11,00,00,000/- and Bank will be disbursing an initial amount of Rs.2,00,00,000/- within a short time. It is also averred in the affidavit that there was delay in disbursal of the loan on account of delay in getting legal opinion by the said Bank. On these set of explanations, the respondent/plaintiff has sought for extension of time to enable him to deposit the balance consideration of Rs.1,88,00,000/-.

nor there was willingness on the part of respondent/plaintiff to complete the sale transaction by paying the balance sale consideration of Rs.1,88,00,000/-.

Bangalore and shop opening was held on 01.10.2006. All these aspects would be an indicator that respondent/plaintiff has made a feeble attempt in filing the present suit half heartedly.

stating that he is ready and willing to pay remaining consideration. There must be specific evidence to show that respondent/plaintiff took some concrete steps readying performance of his part of contract. As on the date of filing of the suit, the respondent/plaintiff has relied on Ex.P-5 dated 26.12.2007. The respondent/plaintiff has averred in the plaint that he was ever ready and willing to perform his part of contract and to substantiate his contention, the respondent/plaintiff has relied on the sanction order issued by the Axis Bank. The sanction order is in regard to credit facility and the purpose of sanction is stated to be carrying out interior decorations, furniture and fittings for new branches and renovation of existing branches. So on perusal of Ex.P-5, it is forthcoming that the respondent/plaintiff had not got the money ready. The respondent/plaintiff in the present case on hand has failed to establish that he had requisite amount with him or was able to raise at all reasonable times. The respondent/plaintiff with his well designed and calculated

manner has committed default in performing his part under the agreement which would disentitle for equitable relief of specific performance.

consideration, it would reflect in regard to conduct of respondent/plaintiff and an adverse inference has to be drawn by holding that respondent/plaintiff was not at all continuously ready and willing to perform his part of contract.

Re: Point No.3:

appears to be a widow with the present suit property being the only property.

Bengaluru and the opening of the new showroom was in the month of October 2006, an adverse inference has to be drawn. The respondent/plaintiff never really intended to complete the sale transaction by paying the balance sale consideration of Rs.1,88,00,000/-. Having regard to the circumstances of the case, we are of the view that the respondent/plaintiff has an unfair advantage over the appellant/defendant and in the circumstances, though the contract cannot be rendered voidable makes it inequitable to enforce specific performance. Accordingly, point No.3 formulated above is answered in the negative.

5 and on the pleadings, wherein the respondent/plaintiff has stated that he is a reputed businessman having wholesale and retail outlets and showrooms around Bangalore, Chennai and Kanchipuram. This finding arrived at by the Trial Court suffers from serious infirmities.

On refund:

The respondent/plaintiff has paid an advance amount of Rs.10,00,000/- in the year 2006. The said money is being utilized by the appellant/defendant for a period of 14 years. The advance amount of Rs.10,00,000/- is a substantial amount. Though in context of the total sale consideration of

Rs.1,98,00,000/-, it may appear to be negligible but, the advance payment is substantial and the same is utilized by the appellant/defendant for almost 14 years. The payment of advance amount is not in dispute. This Court being the Appellate Court has to do complete justice to the parties. The compelling equities in the present case on hand would compel this Court to shape the reliefs.

"ii. Further, this Honourable court may be pleased to grant to the plaintiff such other relief/s as this Honourable court deems fit to grant to the plaintiff in the circumstances of the case."

the appellant/defendant has not suffered any loss. On the contrary, the advance amount of Rs.10,00,000/- is utilized by the appellant/defendant for the last 14 years. In the present case on hand, the respondent/plaintiff succeeded before the Court of first instance and had the benefit of a decree. Now we have reversed the judgment and decree and we have denied the relief of specific performance by holding that it is inappropriate and not a fit case to grant discretionary relief of specific performance.

In this background, where respondent/plaintiff is successful in securing the decree and if he were to lose before the Appellate Court, the question that would arise before this Court is whether refund of money can be considered in absence of specific prayer seeking refund as contemplated under Section 22(2) of the Specific Relief Act, 1963. A question would also arise as to whether in absence of specific wordings in regard to alternate prayer on refund, the Court can exercise discretion under Order VII Rule 7 and

under Order XLI Rule 33 of Code of Civil Procedure to do substantial justice to the parties.

oneself at the costs of another. In the above said case, the plaintiff had sought for an alternate relief to grant such other reliefs as the Court may deem fit to grant in the circumstances of the case. This Court by having recourse to Section 21(5) of the Specific Relief Act, held that it is just and proper to direct the owners to refund the advance amount with interest. This principle is also applicable to the present set of facts.

The respondent/plaintiff has proved due execution of suit agreement and payment of Rs.10,00,000/-. He had the

benefit of decree of specific performance of contract. We have reversed the same. Hence, question of refund on account of reversal of decree arises out of judgment of the lower Court. Even in absence of specific prayer in regard to refund, we deem it fit to grant refund by exercising power under Order XLI Rule 33 of CPC. Further, we have also held that alternate relief in the present case embraces relief of refund. The question that would arise is, whether Court can order for refund in absence of prayer. The bar under Section 22(2) is against the respondent/plaintiff. But such a bar would not operate against Court and curtail its power under Order XLI Rule 33 of CPC.

Draw modified decree accordingly.

Sd/- JUDGE

Sd/- JUDGE