JUBGMENT This appeal by the sole defendant O.S.No.7/2006 on the file of the Principal Civil 3:1iid.;'§:e:"'._ (Sr.D11.), Tumkur is directed against the ' judgnents of the courts below decreeingé the respondent ~ plaintiff and
refund Rs.4~3,GOO/_– by jadyance mm
the respondenj. at 9%
per aimum of realisation.
2. 3’3{fhe_ plaintiff filed the suit for
specific 0f:’«–….Vg@j’eement of sale dated
30.8.2C§{){} said fie ..Vh}1’ve executed by the appellant
V. that the defendant executed the
agtreed” ._ to sell the property measuring’ 2
V acres a in Survey No 46/ 1 of Batsandra viflage
Kera fiobfi ef ‘};’umkur Taiuk for Rs.80,0()O/- and
_. Rs.43,000/- as advance en the date 91’ the
‘ ” by way of Demand Draft. It was contended
purchased by same rather person. But the fact
remains that in the agreement in question, the
demand draft has been specifically referred tcsf A’
the receipt cf the demand -.1f1:dt
by the defendant. Though it is case di’~i_f§e
that the said demand the% <$fig'rxa1
purchaser, absolutely pkaced
Mfore. the It
is not draft has been
encashed; " 1 __ and that he
(defendant) has riot. fhc amount covered in the
vdemagggi '(1raft.a 'Fhfiréfoiiz, fie courts below are justified
ééfendant has received a sum of
' '1:he plaintiff as advance as recited in
H V' the Both the ceurts be-low having found
% & ' me pxaintitr is not entmed for discretionary relief of
A' performance have directed refiund of advance
V No doubt, Section 22 of the Specific Relief Act
«b
8
prevides that any person suing for specific performance
of the connect for transfer of immovabke ‘A
also seek any ether relief includir1g»..»!:_h_e
earnest money or the deposit paidzer 7f.
case his claim for specific iei
section (2) of Section 2291′” the
that no relief under ciauee (1)
shall be gantecl -_.t.he;:’ specifically
claimed. Hovxever, (2) empowers
the fie” emend the plaint at
any stage”‘~gf”t’he Vie. include the aiternative
relief. I1_1_the ca%se 1iand;”‘»Lthough the plaintifl” has not
% i’6I*’*’–such a relief, the Trial Court in
exereiee dieeretion vested in it under proviso te
: V’ sub;-eeefion ef Secfion 22 has granted the relief of
— of advance amount. Assuming that such a
‘ ‘~re§}.ef net have been ganted by the courts below
. specific relief in the piaint, the respondent –
couid as well seek such a prayer even before
M
9. Accordingly, ma appeal is dismissed.
RS/*