Devan Ramachandran, J.

1. The resolution of the limited question brought by the appellant in this appeal hinges on the character to be construed to the amount of Rs.10 lakhs concededly paid by the respondent to the appellant under an agreement for sale, by which the respondent agreed to buy and the appellant agreed to sell a certain extent of property belonging to the latter. The respondent maintains that the said amount of Rs.10 lakhs was paid as an advance for purchase of the property, which has been acknowledged as such in the agreement for sale. The appellant au contraire asserts that this amount represents the Earnest Money Deposit (EMD) and contends that he is entitled to forfeit the same in terms of the agreement.

2. The adjudicative character of this amount is vital in this case because it would answer the question as to whether the entire amount can be forfeited by the appellant as claimed by him. As stated above, it is the case of the respondent that the amount represents the advance payment and that of the appellant is that this is an EMD, liable for forfeiture under the terms of the agreement.

3. The court below, on an assessment of evidence and material on record, concluded, inter alia, that this amount is only an advance and not EMD as contended by the appellant and hence not liable for forfeiture.

4. An evaluation of this very singular issue in this appeal requires only the most essential and constitutive facts to be recorded, which are as below:

5. The plaint schedule property belongs to the appellant. The respondent and the appellant entered into an agreement for sale on 04.04.2007 fixing the sale consideration at Rs.75,250/- per cent. The extent of property sought to be conveyed was 260.25 cents. Admittedly and as recorded in the agreement, an amount of Rs.10 lakhs was paid by the respondent to the appellant as advance sale consideration. As per the terms of the agreement, the date for performance was fixed not later than 03.10.2011.

6. The respondent alleges that the appellant avoided execution of the sale deed citing one reason or the other, since the price of the property had considerably escalated, thus creating a nefarious intention in his mind to sell the property to third parties. The respondent maintains that he was ready and willing to perform his part of the contract and that though he had requested the appellant for the documents of the property for scrutiny, he did not hand over the same. The reasons attributed by the respondent for the refusal of the appellant in handing over the documents is that the plaint schedule property, in fact, had no access, which would have been discovered by him, had the appellant given him the title documents and that it was, therefore, that the appellant refused to give the documents to him. He, therefore, says that he was constrained for these reasons to rescind the contract and ask for refund of the advance paid. According to the respondent, he was thus forced to rescind the contract solely for the reasons attributable to the appellant and that by such recession, not only has the appellant not sustained any loss but has, in fact, enjoyed a benefit on account of the escalation of the price of the property. The respondent, therefore, laid O.S.No.144/2011 on the files of the Sub Court, Perumbavoor seeking a decree for an amount of Rs.10 lakhs with interest at 12% per annum from the date of suit till realisation.

7. The appellant filed a written statement in the suit, wherein he contended that the respondent had obtained no cause of action against him. He admits that an agreement was entered into between them on 04.04.2011 and that an amount of Rs.10 lakhs was paid as sale consideration. His specific case in the written statement was that all the original prior title deeds relating to the plaint schedule property were shown to the respondent and verified by him. He says that the respondent and his men had come to the property several times for inspection and that it