Valmiki J. Mehta, J.

1. Counsel for the respondent was awaited as he did not appear in the first call. Even on the second call, and now it is 12.00 noon, no one appears for the respondent.

2. There is a limited issue involved in this case of the claim of the appellant/plaintiff/buyer for refund of the amount of Rs.3 lacs paid to the respondent/defendant/seller under the subject Agreement to Sell dated 28.9.2011. The law with respect to forfeiture of an amount paid by a buyer to a seller under the Agreement to Sell is well settled.

The main judgment is of the Constitution Bench of the Supreme Court in the case of Fateh Chand Vs. Balkishan Dass AIR 1963 SC 1405 and which holds that unless and until loss is pleaded and proved to have been caused to the seller, amount received by the seller from the buyer cannot be forfeited except a nominal amount.

3. I have recently considered this aspect in the judgment in the case of M.C. Luthra Vs. Ashok Kumar Khanna 2018 (248) DLT 161. In the case of M.C. Luthra (supra) I have distinguished the judgment of the Supreme Court in the case of Satish Batra Vs. Sudhir Rawal, (2013) 1 SCC 345 and have applied the ratio of the larger Constitution Bench judgment in the case of Fateh Chand (supra) and as explained in the later judgment in the case of Kailash Nath Associates Vs. Delhi Development Authority and Another (2015) 4 SCC 136. I may note that an SLP was filed in the Supreme Court against the judgment of this Court in the case of M.C. Luthra (supra) and this SLP(C) No.11702/2018 was dismissed by the Supreme Court on 15.5.2018. The relevant paras of the judgment in the case of M.C. Luthra (supra) are paras 3 to 17 and these paras read as under:-

“3. Today counsel for the appellant/defendant/counter-claimant has, in spite of what is recorded in the order dated 12.9.2017 of appellant/defendant restricting the claim of forfeiture to a reasonable amount of Rs. 3 lacs out of Rs.9 lacs, argued by placing reliance upon the judgment of the Supreme Court in the case of Satish Batra Vs. Sudhir Rawal (2013) 1 SCC 345 that since the amount of Rs.9lacs was paid by the respondent/plaintiff to the appellant/defendant as earnest money, hence in accordance with the ratio in the case of Satish Batra (supra) the entire amount of Rs. 9 lacs can be forfeited by the appellant/defendant as permitted by Clause 8 of the agreement to sell. The impugned judgment of the trial court is therefore prayed to be set aside and the counter-claim of the appellant/defendant is prayed for being decreed for entitling the appellant/defendant to forfeit the entire amount of Rs.9 lacs received by the appellant/defendant from the respondent/plaintiff.

4. There is no dispute between the parties that parties had entered into an agreement to sell dated 15.9.2005 for the appellant/defendant to sell the subject suit property to the respondent/plaintiff. The total sale consideration was Rs.31.50 lacs and it is not in dispute that at the time of entering into the agreement to sell the appellant/defendant received an amount of Rs.9 lacs with the amount of Rs.7 lacs being paid in terms of demand drafts and a sum of Rs.2 lacs being paid in cash. Disputes and differences arose between the parties as to who was guilty of breach of contract in not performing the agreement to sell dated 15.9.2005. Respondent/plaintiff filed the subject suit pleading that the appellant/defendant was guilty of breach of contract and that therefore in terms of Clause 8 of the subject agreement to sell dated 15.9.2005, the respondent/plaintiff was entitled from the appellant/defendant to double the amount of the money paid of Rs.9 lacs i.e. an amount of Rs.18 lacs. The appellant/defendant prayed for the suit to be dismissed and sought a declaration that the appellant/defendant should be held entitled to forfeit the amount paid of Rs.9 lacs received by appellant/defendant under the agreement to sell, forfeiture being on account of breach of contract by the respondent/p