NIRMALA SUNDARI SAHA Vs. NABA KUMAR BANERJEE

JUDGEMENT

(1.) This appeal arises out of a suit for refund of earnest money. The suit has been decreed by the learned subordinate Judge and the vendor Defendant has come up on appeal.

(2.) The Appellant contends that, in the facts and circumstances of this case, the Plaintiffs were guilty of laches and wrongful acts and breach of contract which entitled her to forfeit the earnest money and, she having done so according to law, no question of refund arises. Alternatively, the Appellant urges that even if a decree for refund is here permissible under the law notwithstanding default on the Plaintiff's part in the matter of performance of the contract it must be made subject to the payment of damages or compensation for the loss suffered by her on account of the default or wrongful acts of the Plaintiffs.

(3.) The finding of the learned subordinate Judge was that it was the Defendant who was guilty of laches and wrongful acts and breach of contract and the correctness of this finding is seriously disputed before us by Mr. Sanyal who appears for the Appellant and who has placed before us all relevant materials on the point, appearing on the record. Mr. Mukherjee, appearing for the Respondents, has sought to support the finding of the learned subordinate Judge and he has further contended that, even apart from the said finding, the Defendant's claim to forfeit the earnest money is unsustainable in law, having regard particularly to the terms of the agreement for sale in the present case. Mr. Mukherjee has also contested the Defendant's alternative claim before this Court for damages for loss, alleged to have been suffered by her.