Case Note & Summary
The present Second Appeal was filed by the appellant challenging the judgment and decree dated 17th April 2025 passed in Regular Civil Appeal No.318 of 2017, whereby the appeal preferred by the appellant was dismissed and the decree passed by the learned Trial Court directing refund of the earnest money to the plaintiff, together with interest at the rate of 6% per annum from the date of execution of the agreement dated 22nd July 2008 till its realization, was confirmed. The appellant, represented by Mr. Chetan Patil, submitted that the only substantial question of law involved was whether the Courts below were justified in decreeing the suit for specific performance by granting the alternate relief of refund of the earnest money along with interest, in the absence of a prayer seeking a declaration that the termination/cancellation of the agreement was illegal. The appellant argued that in the absence of a prayer for declaratory relief, the suit for specific performance itself was not maintainable, relying on the judgment of the Hon'ble Supreme Court in Sangita Sinha v. Bhavana Bhardwaj & Ors., 2025 SCC OnLine SC 72, particularly paragraphs 25, 26 and 27. The Court, after hearing the learned counsel for the appellant, found that the suit was for specific performance of the agreement and the alternate relief of refund of earnest money was granted. The Court held that the suit for specific performance was maintainable and the alternate relief of refund of earnest money could be granted even without a declaration that the cancellation was illegal. The Court dismissed the second appeal, confirming the decree for refund of earnest money with interest.
Headnote
A) Specific Relief Act - Alternate Relief - Refund of Earnest Money - Section 22 Specific Relief Act, 1963 - The issue was whether a suit for specific performance can be decreed by granting alternate relief of refund of earnest money without a prayer for declaration that cancellation of agreement is illegal - The Court held that the suit for specific performance was maintainable and the alternate relief of refund of earnest money could be granted even without a declaration that the cancellation was illegal - The Court dismissed the second appeal, confirming the decree for refund of earnest money with interest (Paras 1-5).
Issue of Consideration
Whether the Courts below were justified in decreeing the suit for specific performance by granting the alternate relief of refund of the earnest money along with interest, in the absence of a prayer seeking a declaration that the termination/cancellation of the agreement was illegal?
Final Decision
The Second Appeal is dismissed. The judgment and decree dated 17th April 2025 passed in Regular Civil Appeal No.318 of 2017 is confirmed.
Law Points
- Alternate relief of refund of earnest money can be granted in a suit for specific performance without a prayer for declaration that cancellation is illegal
- Suit for specific performance maintainable even if primary relief fails
- Section 22 Specific Relief Act
- 1963
Case Details
2026 LawText (BOM) (07) 99
Second Appeal No. 475 of 2025
Mr. Chetan G. Patil a/w. Mr. Gajraj A. Mali, Advocate for Appellant.
Maruti Dhondi Patil and Sandip Tukaram Patil
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Nature of Litigation
Second Appeal against judgment and decree in Regular Civil Appeal No.318 of 2017, which confirmed the decree for refund of earnest money with interest in a suit for specific performance.
Remedy Sought
Appellant sought to challenge the decree for refund of earnest money with interest, arguing that the suit for specific performance was not maintainable without a prayer for declaration that cancellation of agreement was illegal.
Filing Reason
The appellant filed the Second Appeal challenging the concurrent findings of the Courts below granting alternate relief of refund of earnest money in a suit for specific performance.
Previous Decisions
The Trial Court decreed the suit for specific performance by granting alternate relief of refund of earnest money with interest at 6% per annum from 22nd July 2008. The First Appellate Court dismissed the appeal (Regular Civil Appeal No.318 of 2017) and confirmed the decree.
Issues
Whether the Courts below were justified in decreeing the suit for specific performance by granting the alternate relief of refund of the earnest money along with interest, in the absence of a prayer seeking a declaration that the termination/cancellation of the agreement was illegal?
Submissions/Arguments
Learned counsel for the appellant submitted that in the absence of a prayer for declaratory relief, the suit for specific performance itself was not maintainable, relying on Sangita Sinha v. Bhavana Bhardwaj & Ors., 2025 SCC OnLine SC 72, paragraphs 25, 26 and 27.
Ratio Decidendi
In a suit for specific performance, the alternate relief of refund of earnest money can be granted even without a prayer for declaration that the cancellation of the agreement is illegal. The suit for specific performance is maintainable and the Courts below were justified in granting the alternate relief.
Judgment Excerpts
The present Second Appeal challenges the judgment and decree dated 17th April 2025 passed in Regular Civil Appeal No.318 of 2017, whereby the appeal preferred by the appellant came to be dismissed and the decree passed by the learned Trial Court directing refund of the earnest money to the plaintiff, together with interest at the rate of 6% per annum from the date of execution of the agreement dated 22nd July 2008 till its realization, came to be confirmed.
Learned counsel for the appellant submits that, in the absence of a prayer for declaratory relief, the suit for specific performance itself was not maintainable.
The suit was for specific performance of the agreement and the alternate relief of refund of earnest money was granted. The suit for specific performance was maintainable and the alternate relief of refund of earnest money could be granted even without a declaration that the cancellation was illegal.
Procedural History
The Trial Court decreed the suit for specific performance by granting alternate relief of refund of earnest money with interest. The appellant filed Regular Civil Appeal No.318 of 2017, which was dismissed on 17th April 2025. The appellant then filed the present Second Appeal No.475 of 2025, which was dismissed on 9th July 2026.
Acts & Sections
- Specific Relief Act, 1963: Section 22
