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 B