RAMENBRA MOHAN DATTA, J.

( 1 ) THE appeal herein has since been dismissed with costs for default of appearance of the appellant on or about 8th Sept. 1977 in the presence of the respondent. The respondent intending to proceed with the hearing of the cross objection was directed to serve on the appellant a notice of hearing and pursuant thereto the appellant appeared.

( 2 ) ARGUMENTS had been advanced on a short but an interesting point arising out of the cross-objection filed by the respondent Calcutta Vyaper Pratisthan Limited. The judgment of the trial Court was delivered by A. N. Ray, J. (as he then was) on March 22 and 23, 1966 whereby the suit filed by the appellant was dismissed. The claim for specific performance of the sale of a premises comprising 25 cottahs of land with a cottage standing on a portion thereon being parts of premises Nos. 3, Rusell Street and 36, Chowringhee Road in Calcutta (hereinafter referred to as the said premises), was refused but the learned Judge allowed the claim for refund of the sum of Rs. 3 lakhs to the appellant. The plaintiff appellant preferred this appeal. The respondent preferred a cross-objection in respect only of the said decree for the refund of the sum of Rs. 3 lakhs paid as earnest and towards the agreed purchase price. It is the respondent's cross-objection which has come up for our consideration. Accordingly, the respondent is virtually in the position of the appellant before us.

( 3 ) THE facts shortly are that between 30th April, 1963 and 6th May, 1963 it was agreed by and between the above parties through one Ramkishanji Dha- nuka that the respondent would sell to the appellant and the appellant would purchase from the respondent the property being the said premises in suit free from all encumbrances at and for the price of Rs. 10,75,000. One of the terms of the contract was that the appellant would advance a sum of Rupees 25,001 to the respondent towards and on account of the earnest money and in part payment of the agreed price or consideration. According to the appellant the agreement was arrived at orally but some of the terms of the agreement would appear from the correspondence as set out in para 5 of the plaint. Pursuant to the said agreement the appellant paid Rs. 25,001 as earnest money and in part payment of the purchase price.

( 4 ) IN para 13 of the plaint it has been stated, inter alia, that on or about Aug. 21, 1963 it was further agreed amongst other terms that the appellant would pay to the respondent on account of earnest money and towards or in part payment of the agreed purchase price and in addition to the aforesaid sum of Rs. 25,001 a further sum of Rs. 2,75,000. In para 15 thereof it has been stated that pursuant to the aforesaid the appellant paid the said further sum on Oct. 14, 1953 by cheque dated October 8, 1963. The respondent received and accepted the said cheque and duly encashed the same.

( 5 ) IN paragraph 18 of the plaint it has been stated that if the Court would decide that specific performance ought not to be granted in this case or if it is found that the property could not be sold free from encumbrances or at all then the appellant, in lieu of a decree for a specific performance, would be entitled to a decree for the refund or return of the amount aggregating to a sum of Rupees 3,00,001 paid as earnest money and towards the agreed purchase price.

( 6 ) IN the written statement the respondent, inter alia, set up an agreement for the sale of the said premises on terms and conditions which were different from the terms and conditions mentioned by the appellant and also referred to some other correspondence but admitted that the price was agreed at a sum of Rs. 10,75,000 and that the earnest money payable would be Rs. 25,001. According to the respondent the said sum of Rupees 2,75,000 was paid as further earnest money in respect of the agreement as set out in para 7 of the written state- ment. The respondent further stated in the wri

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