1 2025:CGHC:11723 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 113 of 2020 1 - Rajesh Sahu S/o Late Shri Buddhulal Sahu, Aged About 49 Years R/o Teli Para, Bilaspur, P.S. City Kotwali, Tahsil And District Bilaspur Chhattisgarh ...Plaintiff/ Appellant versus 1 - Leel Kumar Daharia S/o Late Basant Daharia, Aged About 49 Years R/o Baghelkapa, Kondakapa, Tahsil Takhatpur, District Bilaspur Chhattisgarh 2 - State Of Chhattisgarh Through The Collector, Bilaspur Chhattisgarh ....Defendants/Respondents For appellant : Mr. Shashi Bhushan, Adv. For Respondent No. 1 : Mr. Vineet Kumar Pandey, Adv. For respondent No. 2 Ms. Mukta Tripathi, Panel Lawyer Hon'ble Shri Justice Naresh Kumar Chandravanshi JUDGMENT ON BOARD 5-3-2025 1. This first appeal has been filed by the appellant/plaintiff, under Section 96 of the Civil Procedure Code, 1908 (henceforth, referred to as ‘CPC’), challenging the judgment and decree (Annexure A-1) dated 7-2-2020 passed by the Upper District Judge, Bilaspur in Civil Suit No. 35A/2018, whereby the civil suit filed by the appellant has been dismissed. (hereinafter, parties would be referred as per their status shown in the plaint.) Digitally signed by AVANISH KUMAR PATHAK Date: 2025.03.11 11:38:37 +0530 2 2. Vide order dated 28-2-2025, an application under Order 6 Rule 17 read with Section 151 of the CPC regarding amendment in the plaint with respect to refund of earnest money sought by the appellant/plaintiff was allowed by this Court and pursuant thereof, amendment has been incorporated in the plaint. 3. Facts of the case, in nutshell, are that, plaintiff filed civil suit for specific performance of contract pleading inter alia that, the defendant No. 1 entered into an agreement to sell his land bearing Khasra No. 52, 53 total area 0.619 hectare situated at village Rajpur, Patwari Halka No. 17, Tahsil Takhatpur, Distt. Bilaspur on 4-5-2017 for sale consideration of Rs. 14,00,000/- in favour of the plaintiff and he also executed agreement to sell (Ex. P-1) by receiving Rs. 5,00,000/- as advance amount. The defendant No. 1 did not execute registered sale deed in favour of plaintiff even after repeated request and service of legal notice, rather he was trying to sell the suit land to some other person. Therefore, the plaintiff filed civil suit for specific performance of contract. 4. Defendant No. 1 has filed written statement and admitted receiving of Rs. 5,00,000/- as advance amount out of sale consideration of Rs. 14,00,000/-. It is pleaded in the written statement that, agreement was entered into between him and plaintiff to sell the suit land due to ill health of his son. As per terms of the agreement, sale deed ought to have been got executed by the plaintiff within 3 months, but in between, despite various requests made by the defendant No. 1, plaintiff did not get executed registered sale deed by paying balance sale consideration. Thus, fault is on the part of plaintiff himself, therefore, he is not entitled to get any relief. 3 5. Learned trial Court after appreciation of oral and documentary evidence available on record, dismissed the suit by recording a finding that the plaintiff has failed to prove that he was ready and willing to perform his part of contract, in such a situation, he is not entitled to get relief of specific performance of contract. 6. Learned counsel for the appellant/plaintiff would submit that, though civil suit filed by the plaintiff against the defendant No. 1 for specific performance of contract has been rejected, but it is proved from oral and documentary evidence and admission made by defendant No. 1 Leelkumar Dahariya that, he had obtained Rs. 5,00,000/- as advance amount from plaintiff in respect of said agreement, despite that, learned trial Court, even after rejecting the civil suit filed by the plaintiff, has not made any observation with regard to refund of advance amount Rs. 5,00,000/-. Learned counsel further submits that, since decree was not granted in favour of plaintiff for specific performance of contract, as such, the trial Court ought to have directed defendant No. 1 to refund him advance amount. It was huge amount of Rs. 5,00,000/-, therefore, immediate requirement of defendant No. 1 would have been fulfilled, as such, he has not suffered any loss or damage. It is further submitted that, though claim of refund of advance amount was not made in the civil suit, but since the civil suit has been dismissed, therefore, now plaintiff has amended his pleading by permission of this Court for refund of advance amount received by defendant No. 1 from the plaintiff, therefore, defendant No. 1 may be directed to refund the advance amount paid by plaintiff in view of proviso of sub-section (2) of Section 22 of the Specific Relief Act, 1963 by allowing instant appeal. 4 7. Per contra, learned counsel for the defendant No. 1 submits that, since plaintiff has not claimed refund of advance amount in the suit, therefore, as per sub-section (2) of Section 22 of the Specific Reliefs Act, 1963, the plaintiff is not entitled to get back the advance amount. Therefore, the appeal is liable to be dismissed. 8. Learned Panel Lawyer appearing for respondent No. 2/State submits that State is a formal party in this case. 9. I have heard learned counsel for the parties and perused the material available on record as well as the record of the trial Court. 10. In the instant case, plaintiff filed a suit for specific performance of contract on the ground that, the agreement (Ex. P-1) was entered into between him and defendant No. 1 for sell of the suit land for sale consideration of Rs. 14,00,000/- to the plaintiff. The defendant No. 1 received Rs. 5,00,000/- as advance amount. The trial Court dismissed the suit on the ground that the plaintiff has failed to prove to perform his part of contract i.e. his readiness and willingness. The trial Court has not stated anything about refund of advance amount given by the plaintiff to the defendant No. 1, because plaintiff had not sought any relief in this regard in his plaint. But now he has amended his plaint by permission of this Court and sought relief of refund of advance amount of Rs. 5,00,000/- paid by him to the defendant No. 1. 11. Hon’ble Supreme Court in the matter of Desh Raj Vs. Rohtash Singh [(2023) 3 SCC 714], observed that 'the court, however, has been vested with wide judicial discretion to permit the plaintiff to amend the plaint even at a later stage of the proceedings and seek the alternative relief of refund of the 5 earnest money. It reads thus:- “35. On a plain reading of the above-reproduced provision, we have no reason to doubt that the plaintiff in his suit for specific performance of a contact is not only entitled to seek specific performance of the contract for the transfer of immovable property but he can also seek alternative relief(s) including the refund of any earnest money, provided that such a relief has been specifically incorporated in the plaint. The court, however, has been vested with wide judicial discretion to permit the plaintiff to amend the plaint even at a later stage of the proceedings and seek the alternative relief of refund of the earnest money. The litmus test appears to be that unless a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. The prayer clause is a sine qua non for grant of decree of refund of earnest money.” 12. In the instant case, learned trial Court has declined to grant decree in favour of plaintiff for specific performance of contract, but it has also been proved in instant case by oral and documentary evidence that, in pursuance of said agreement (Ex. P-1), Rs. 5,00,000/- advance amount was paid by the plaintiff to the defendant No. 1. Though, because of not seeking alternative relief by the plaintiff, learned trial Court has not passed any order in respect of refund of advance amount, but now amendment has been carried out by the plaintiff in plaint. 13. As per agreement (Ex. P-1), defendant No. 1 had proposed to sell the suit land as he required money for treatment of his son, and huge amount of Rs. 5,00,000/- was paid by the plaintiff to the defendant No. 1 as advance amount, therefore, it can be supposed that requirement of defendant No. 1 would have been fulfilled and because of non-performance of contract 6 by the plaintiff, no damage seems to be caused to him. Such fact has also not been stated by him. Further, there is no mention in the agreement about forfeiture of advance amount, in case, registry is not done by the plaintiff within stipulated period. Therefore, if advance amount is not refunded despite non suffering from any damage by the defendant No. 1, it would be bonanja for him, as he kept the disputed land also and advance amount also. Therefore, I feel inclined to allow this appeal. 14. Consequently, respondent No. 1 / defendant No. 1 is directed to refund the advance amount of Rs. 5,00,000/- to the appellant/plaintiff within 60 days from today along with interest at the rate of 8% per annum from the date of agreement. 15. Accordingly, this appeal is allowed. 16. A decree be drawn accordingly. No cost(s). Sd/- (Naresh Kumar Chandravanshi) Judge Pathak