A.K.Sekar Vs Gowthamchand — Specific Performance | Madras HC (2025)

A.K.Sekar Vs Gowthamchand — Specific Performance | Madras HC (2025)

What the court decided

AI extract

Outcome

Second Appeal allowed without costs; the judgment and decree dated 28.01.2019 of the Additional District Judge (Fast Track Court), Villuppuram, in A.S. No.32 of 2016 is set aside, and the judgment and decree dated 29.10.2015 of the Additional Subordinate Judge, Tindivanam, in O.S.No.110 of 2010 (dismissing the suit for specific performance) is upheld.

Issue for consideration

Substantial question of law 1: Having recorded a finding that the suit agreement was not intended to be entered upon as an agreement of sale and was executed as a security, whether the lower appellate court was right in granting a decree for repayment of advance? +1 more

Ratio / Principle

A decree directing return of the advance amount without any alternative prayer for the return of such advance amount, as granted by the first appellate court, is without jurisdiction; accordingly, both substantial questions of law are answered in favour of the appellant (defendant).

Key takeaways

The precedents relied on by the first appellate court to mould relief (Ramesh Chand v. Asruddin; N. Sekaran v. C. Rajendran) are not applicable, because in the present case the execution of the sale agreement and the payment of the advance amount themselves are doubtful.ratio¶81
Applying Section 22(2) of the Specific Relief Act, 1963: where the relief of specific performance is not granted, the plaintiff in a suit for specific performance would not be entitled to any relief (including refund of advance) unless and until such relief was asked for by the plaintiff.ratio¶81

Detailed headnote1 paragraphs

Specific performance - refund of advance without alternative prayer - Second Appeal under S.100 CPC. In O.S.No.110 of 2010 (sale agreement dated 10.10.2006, consideration Rs.7,50,000/-), the trial court dismissed the suit; the first appellate court in A.S. No.32 of 2016, while denying specific performance, decreed refund of Rs.7,50,000/- with interest at 6% per annum from the date of the sale agreement till realisation, relying on Ramesh Chand v. Asruddin, (2016) 1 SCC 653 and N. Sekaran v. C. Rajendran, (2017) 8 MLJ 671 on moulding of relief in the absence of a refund prayer. The High Court (K. Govindarajan Thilakavadi, J.) held: (i) under S.22(2) of the Specific Relief Act, 1963, a plaintiff in a suit for specific performance who never sought refund/alternative relief is not entitled to it; (ii) the cited precedents were distinguishable - in N. Sekaran an alternative refund prayer existed, in Ramesh Chand the agreement was proved - whereas here the execution of the sale agreement and payment of advance were doubtful; and (iii) hence a refund decree without any alternative prayer is without jurisdiction. Substantial questions of law answered in favour of the appellant-defendant. Held: Second Appeal allowed without costs; the first appellate court's judgment and decree dated 28.01.2019 set aside; the trial court's judgment and decree dated 29.10.2015 dismissing O.S.No.110 of 2010 upheld. The plaintiff's entitlement to specific performance was left undecided as he was not in appeal.