LETITIA CASTELINO Vs. JEROME D SILVA

JUDGEMENT

(1.) This is a plaintiff's second appeal against the decree passed by the Civil Judge, Mangalore in A.S. No. 212 of 1964, reversing the decree passed by the Munsiff, Mangalore in O.S. No. 472 of 1962. The plaintiff and the defendant entered into an agreement on the 11th of January 1962, which has been produced in this case as Ext. A-1, under which the plaintiff agreed to purchase certain immoveable properties belonging to the defendant for an agreed price of Rs. 20,000. Out of the agreed price ot Rs. 20.000, a sum of Rs. 2,000 was paid by the plaintiff to the defendant on the date of the agreement. The balance of consideration of Rs. 13,000 was agreed to be paid at the time of registration of the sale deed. Under the agreement, the possession of the property was to be delivered on the date of registration of the sale deed. The sale deed was agreed to be drawn within 15 days from the date of Ext. A-1. The vendor, on being informed, was to execute and get the document registered without any objection or delay. If the purchaser committed a default, she was not entitled to ask for the repayment of Rs. 2,000 paid on the date of the agreement. If, however, the vendor failed to abide by the terms of the agreement, the purchaser was entitled to enforce the agreement through Court of law and at the cost of the defendant. According to the plaintiff, the defendant committed default in performing his part of the contract. The plaintiff, therefore, filed a suit on the 6th of December, 1962, to recover the amount of Rs. 2,000 paid to the defendant on the date of the agreement Ext. A-1. The defendant resisted the suit and contended that the amount of Rs. 2,000 was paid by the plaintiff as earnest money on the date of the argeement. He further contended that as the plaintiff committed default in performing her part of the contract, he was entitled to forfeit the earnest money paid by the plaintiff. He. therefore, contended that the plaintiff is not entitled to recover from the defendant the earnest money of Rs. 2,000 paid by her on the date of Ext.A-1.

(2.) The trial Court, after considering the evidence on record, came to the conclusion that it is the plaintiff that has committed the breach of the agreement. It further came to the conclusion that the defendant has suffered damage only to the extent of Rs. 200 by the breach of the agreement by the plaintiff. Consequently, the trial Court made a decree in favour of the plaintiff only for a sum of Rs. 1,800, deducting an amount of Rs. 200 to which the defendant was entitled by way of damages.

(3.) The decree passed by the trial Court was challenged by the defendant in the Court of the Civil Judge, Mangalore in A.S. No. 212 of 1964. The learned Civil Judge allowed the appeal of the defendant and dismissed the plaintiff's suit. The learned Civil Judge concurred with the finding of the trial Court and held that it is the plaintiff that has committed the breach of the agreement. He further held that the amount of Rs.2,000 paid under Ext. A-1 was earnest money which the defendant was entitled to forfeit for breach of the agreement by the plaintiff. Hence this second appeal by the plaintiff.