PETER MASCARENHAS Vs. M BALAKRISHNA BABA PAI

JUDGEMENT

(1.) The appellant entered into an agreement with the respondent for sale of 5-3/4 cents of vacant land in survey No.101/2C of Kankanady village for a sum of Rs.2,875 at the rate of Rs.500 per cent. He paid Rs.1,000 as part payment of ,the consideration undertaking to pay the balance at the time of execution of the sale deed on or before 30-9-1966. Complaining breach of the contract, the appellant sued the defendant-respondent for the return of the money paid by him. The defendant resisted the suit contending infer alia, that he on his part did not commit any default; that it was ithe plaintiff who committed the default, that the part payment made by the plaintiff was in the nature of an earnest money and, therefore, liable to forfeiture.

(2.) Both the Counts have accepted the contentions of the defendant and dismissed the suit. Hence, this second appeal by the plaintiff.

(3.) The question raised in this appeal relates to the nature of the payment made and the duty of the defendant to return the same upon the breach of the contract committed by the plaintiff. There appears to be some sort of misconception in construing these aspects of the matter in the Courts below and also in the arguments addressed in this Court. The appellate Court has stated that the payment by the plaintiff was as a guarantee for the purchase of the plot and it wag an earnest money which the defendant was entitled to forfeit since the plaintiff has committed the breach. Similar was the finding recorded by the trial Court. The agreement did not provide that the money paid by the plaintiff was either towards due performance of the contract or intended to remain as 'earnest'. The terms of the agreement as incorporated in Ext.P1 simply provide that the plaintiff has paid Rs. 1,000 towards the part payment of consideration undertaking to pay the blance at the time of execution of the sale deed.