NARENDRA N MITRA Vs. NRIPENDRA BROY

JUDGEMENT

(1.) On 29-6-1928, that is more than 19 years ago, the mortgaged properties of one Nripendra Bhusan Roy were sold by Registrar of this Court pursuant to a mortgage decree. Amongst other lots, nine items comprising a number of properties which it is not necessary to set out but which are mentioned in the Registrar's certificate dated 21-1-1946, annexure "A" to the petition were knocked down to Sm. Sushila Sundari Dassi, her bids amounted to Rs. 1,10,050 and 25% of this amount that is to say Rs. 27,512-8-0, was deposited by her with the Registrar on account of her purchases. She, however, failed to pay the balance of the purchase price and the Registrar's certificate already referred to shows that after deducting his commission a balance amounting to Rs. 24,761-4-0 is still in his hands. This application is made by the sons of Sm. Sushila Sundari Dassi, (she herself having died in June 1938), for an order that the Registrar do pay the amount of the deposit to the petitioners. They aver that the purchase was made by their mother out of her ajoutuk stridban money and there being no unmarried daughters they are her heirs entitled to inherit her ajoutuk stridhan property. The lady's married daughters have given their consent to this petition.

(2.) The sale was upon usual conditions; they are set out in Appendix J to the Rules of this Court. Condition 3 provided that the highest bidder shall be the purchaser if the bidding is considered sufficient by the Registrar. Condition 5 provided that the purchaser shall at the time of sale pay a deposit of 25% of the purchase money to Registrar. Condition 8 provided for payment by the purchaser of the balance of the purchase price within a time limited. Conditions 13 and 14 were as follows: 13. Where the purchaser shall not pay his purchase money at the time above specified, or at any other time which may be named in any order for that purpose, and in all other respects perform these conditions an order may be made by a Judge in Chambers for the re-sale of the property and for payment by the purchaser of the amount of the deficiency, if any, in the price which may be obtained upon such re-sale, and of all attorney-and-client's costs and expenses occasioned by such default. 14. Where a re-sale is directed, if for want of a bidder the property cannot be re- sold the purchaser at the former sale shall pay the whole amount of his purchase- money into Court; but where the property be re-sold, and where the price obtained at the re-sale be less than the purchase-money payable by the original purchaser, he shall pay the amount of the deficiency. The costs occasioned by the default of the original purchaser shall also be paid by him. An order containing these directions may also be obtained from a Judge in Chambers.

(3.) It is now well settled that in the absence of special terms providing otherwise, a deposit is not merely part payment but is an earnest; it is a security for the performance of the purchaser's contract and if the purchaser makes default, it may be retained by the vendor and no express stipulation is necessary to entitle the vendor to the deposit. In Howe V/s. Smith (1884) 27 Ch. D. 89 which was the case of a private sale, the conditions provided that if the purchaser should fail to complete, the vendor would be at liberty to re-sell and to recover any deficiency. The purchaser, in fact, defaulted and the vendor re-sold for the same price. It was held that inasmuch as the deposit was a guarantee for the performance of contract, the purchaser who defaulted was not entitled to a return of deposit.