SOJI PETER Vs. K. B. VIJAYAN

JUDGEMENT

(1.) The resolution of the limited question brought by the appellant in this appeal hinges on the character to be construed to the amount of Rs. 10 lakhs concededly paid by the respondent to the appellant under an agreement for sale, by which the respondent agreed to buy and the appellant agreed to sell a certain extent of property belonging to the latter. The respondent maintains that the said amount of Rs. 10 lakhs was paid as an advance for purchase of the property, which has been acknowledged as such in the agreement for sale. The appellant au contraire asserts that this amount represents the Earnest Money Deposit (EMD) and contends that he is entitled to forfeit the same in terms of the agreement.

(2.) The adjudicative character of this amount is vital in this case because it would answer the question as to whether the entire amount can be forfeited by the appellant as claimed by him. As stated above, it is the case of the respondent that the amount represents the advance payment and that of the appellant is that this is an EMD, liable for forfeiture under the terms of the agreement.

(3.) The court below, on an assessment of evidence and material on record, concluded, inter alia, that this amount is only an advance and not EMD as contended by the appellant and hence not liable for forfeiture.