HABIB ALI AND ANR. Vs. RAFIKUDDIN AND ORS.

JUDGEMENT

(1.) THIS second appeal arises out of Title Suit No. 230 of 1958 in the Court of the Munsiff at Silchar. The Plaintiffs' case is that the Defendants entered into a contract with the Plaintiffs for sale of the suit land and the houses thereon for Rs. 11,000 and that the Defendants took Rs. 1,500 as earnest money from the Plaintiffs. The Defendants executed a 'baianapatra' (Ex. 1) stipulating to sell they aforesaid properties within three months from the date of the execution of the said document after obtaining necessary guardianship certificate and permission from the District Judge, Cachar, in respect of Defendants Nos. 3, 4 and 5 who were minors. As the Defendants delayed in obtaining the certificate, the Plaintiffs served on them a notice on 2 -7 -1955 calling upon them to fulfil their part of the contract within the contracted period which was to expire on 9 -7 -1955. The Defendants sent a reply to the notice wherefrom it transpired that Defendant No. 7 sold her share of the suit land to one Amiruddin and relinquished possession of the same before the date of the execution of the 'baianapatra'. The Defendants also made some new demands in their notice which were outside the contract. Thereafter there was an exchange of notices between the parties and ultimately, the Plaintiffs sent a notice, through their lawyer to the Defendants asking them to refund the earnest money with compensation. The Defendants failed to comply and hence the Plaintiff brought the suit for refund of the earnest money together with compensation of Rs. 375 and interest.

(2.) THE Defendants contested the suit (SIC) leging inter alia that there was a settlement that a portion of the suit holding would be settled with Defendant No. 1 and that the Plaintiffs were to take steps in the matter of getting the guardianship certificate and permission from District Judge, Cachar. The Defendants further alleged that they came to know only afterwards that these terms were not included in the 'baianapatra' and added that they applied for permission and the guardianship certificate and after getting the same, asked the Plaintiff's to fulfil their part of the contract and that it was the Plaintiffs who avoided the contract as they had no money. The trial Court held that the Plaintiffs were entitled to get back the earliest money from the Defendants with compensation, and accordingly decreed the sum of Rs. 1,875 with costs. On appeal, the Subordinate Judge, Cachar, held that it was the Plaintiffs who refused to perform the contract as the Defendants failed to remove some defects in the (SIC) title of Defendant No. 7. Hence, he allowed the appeal and dismissed the suit.

(3.) IT is not necessary to discuss the various cases cited by Mr. Chaudhury in support of (SIC) above contentions. Mr. Dam, the learned Counsel for the Appellants, does not dispute the correctness of the above legal principles. He, however, submits that the question of repudiation is completely irrelevant in the present case. His simple case is that the sum of Rs. 1,500 was paid as earnest money and the contract has not been performed for no fault of the vendee and hence the vendee should get back his money with damages. The principle for refund of earnest money is independent of the consideration laid down in Sections 64, 65 and 74 of the Indian Contract Act. The earnest money (SIC) liable to be forfeited when the contract goes (SIC) for default on the part of the purchaser. Naresh Chandra Guha v. Ramchandra : AIR 1952 Cal 93; Jagdishpur Metal Industries v. Vijoy Oil Industries : AIR 1959 Pat 176.