NATESA AIYAR Vs. APPAVU PADAYACHI (DIED)

JUDGEMENT

(1.) The contract we have to consider no doubt differs in some respects from the ordinary vendor and purchaser contract which was before the Courts in most of the cases which were discussed in the course of the argument in this appeal. The consideration for the contract in question was a sum of Rs. 41,000, of which Rs. 4,000 is stated to have been received by the vendor on the date of the agreement, Rs. 20,000 was to remain on mortgage, and the balance was to be paid on a specified date. If the purchaser failed to carry out the contract, he was to forfeit the Rs. 4,000 advance. If the vendor failed to carry out the contract he was to refund the advance and pay Rs. 4,000. There was a further provision that the vendor should execute the sale-deed before the agreed date either in favour of the purchaser or in favour of the purchaser s nominees. In pursuance of this the vendor, before the agreed date, sold some of the lands to a nominee of the purchaser.

(2.) I do not think the fact that there was a reciprocal agreement by which Rs. 4,000 was to be forfeited to the vendor if the purchaser was in default, and Rs. 4,000 was to be paid by the vendor (besides Pa refunding the advance) if the vendor was in default, or the fact that there was part performance of the contract before the agreed date, makes any difference for the purpose of the qaestion we have to decide, viz., whether, in the events which have happened, the vendor is entitled to retain the Rs. 4,000.

(3.) As a matter of fact the vendor has been able to sell the unsold portion of the land, or part of it, for more than the amount provided for in the agreement. This, again, in my opinion, does not affect the question we have to decide