Forfeiture of earnest money requires proof of loss, and pre-suit interest may be denied in case of breach of contract.

1. None appeared for the defendant despite pass over.

2. The plaintiff has instituted this suit for recovery of Rs.5,41,27,154/- with pendente lite and future interest, claiming that (i) the defendant vide Agreement to Sell dated 17th April, 2013, as amended on 19th April, 2013, had agreed to sell his 1/3rd share admeasuring 27 Bighas 19 Biswas in Khatta No.44/46, Killa No.4/22(4-8), 23(4-16), 24(4-16), 25/1(2-8), 20/20/2(2-13), 21/1(2-3), 21/21/24(4-1), 25/2(4-2), 28(0-4), 24/3(4-12), 4(4-16), 7(4-16), 8(4-16), 13(4-16), 18/1(1-10), 24/18/2/1(2-16), 27(0-4), 102(11-1), 172(1-15) total ad-measuring 83 Bighas 18 Biswas in village Khera Dabar, Najafgarh, Delhi; (ii) the plaintiff in pursuance to the aforesaid Agreement to Sell paid advance consideration of Rs.4,15,56,354/- to the defendant out of the total agreed sale consideration informed to be of Rs.21,55,63,540/-; (iii) the defendant however avoided to take steps for getting No Objection Certificate (NOC) from the Competent Authority and/or for complying with the other formalities necessary for execution of the Sale Deed; (iv) the plaintiff had got issued a letter dated 11th January, 2014 to the defendant calling upon the defendant to perform his part of the Agreement to Sell; (v) the defendant in his reply dated 14th February, 2014 claimed forfeiture of Rs.4,15,56,354/-; (vi) the plaintiff got issued another notice dated 18th February, 2014 to the defendant controverting the claim of the defendant and claiming refund of the advance paid with interest; (vii) a suit was filed in the District Court, Dwarka by a third party against the defendant for specific performance of the agreement to sell, of the same land, claimed to have been executed by the defendant with that third party and the plaintiff was also impleaded in the said suit; vide interim order in the said suit filed by the third party, the defendant no.1 was restrained from alienating the land; (viii) it was also learnt that the wife and child of the defendant were also claiming rights against the defendant in the subject land; and, (ix) the plaintiff is thus entitled to refund of advance sale consideration of Rs.4,15,56,354/- together with interest at 9% per annum thereon amounting to Rs.1,25,70,800/- till the institution of the suit. Hence, the suit claim for Rs.5,41,27,154/-.

3. The suit was entertained and summons thereof ordered to be issued.

4. The defendant has filed a written statement pleading that, (a) this suit instituted on 8th September, 2016 with respect to monies admittedly paid under the Agreements to Sell dated 17th April, 2013 and 19th April, 2013 is barred by time; (b) the plaintiff paid a sum of Rs.2,15,56,354/- to the defendant as earnest money on 17th April, 2013 at the time of executing the Agreement to Sell dated 17th April, 2013; (c) in terms of the said Agreement to Sell, the plaintiff was to pay the balance amount of Rs.19,40,07,186/- on or before 17th July, 2013 and on receipt of which the defendant was to execute the Sale Deed; (d) just two days after the Agreement to Sell dated 17th April, 2013, the plaintiff approached the defendant expressing inability to pay the balance sale consideration of Rs.19,40,07,186/- by 17th July, 2013 and requested for extension of time for payment and the said request of the plaintiff was accepted by the defendant and time for payment extended till 30th August, 2013 and addendum dated 19th April, 2013 executed; (e) the plaintiff, in order to show his bona fides and willingness to conclude the contract, paid a further sum of Rs.2,00,00,000/- and it was mutually agreed that the said money would also constitute earnest money; (f) the plaintiff failed to pay the balance sale consideration of Rs.17,40,07,186/- on or before 30th August, 2013 and consequently, the amount of Rs.4,15,56,354/- paid by the plaintiff as earnest money stood forfeited and the Agreement to Sell stood cancelled; (g) the defendant, in fulfilment of his part of the Agreement to Sell ha