Corporate commercial and property lawyer: after dismissal of suit for specific performance the court without pleadings in the plaint cannot grant the decree for recovery of the payments made by the purchaser.

Supreme Court of India

In case suit for specific performance fails of the buyer, then, the court cannot pass decree of recovery of money, without out there being any pleadings in notice or in the plaint by the plaintiff for the payments made.

In the case titled as "Dr Manohar Versus H GuruNanda" in the suit for specific performance  the high court refused to grant decree of specific performance on the ground that the plaintiff had failed to prove his readiness and willingness but granted the decree for recovery of money to the plaintiff which were paid by the plaintiff to the defendant.

The Supreme Court set aside the said judgement of the High Court by which recovery of money was allowed in favour of the plaintiff/ purchaser. It was held by the court that the plaintiff neither pleaded in the notice nor in the plaint regarding subsequent payments.

The supreme court only allowed the recovery in the sum of Rupees 26000 as the said amount was the agreed amount between the parties. It was further held that it is unbelievable that payment of earnest of rupees 26000 was made by cheque, and to the contrary, the substantial payment of rupees 675000  was allegedly made by way of cash. The recovery of amount of rupees 675000 in favour of the plaintiff was disallowed.

Accordingly, the Appeal was allowed. The order granting recovery of entire amount was set aside.