Forfeiture of earnest money is impermissible without proof of actual loss by the seller due to breach of contract.

JUDGMENT :

C. Pratheep Kumar, J.

The defendants in O.S.334/2011 on the file of the Principal Sub Court, Thrissur are the appellants. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court.)

2. The plaintiff filed the suit for specific performance of an agreement for sale. As per the plaint averments, Tony Joe and Tessy George along with defendants 1 to 3, are the owners of the plaint schedule item Nos.1 to 3 properties, having a total extent of 106.259 cents. Out of which, 22.769 cents comprised in Sy.No.46 of Potto village and 20.198 cents comprised in Sy.877/3 of Killannur village belonged to Tony Joe and Tessy George and the remaining properties belonged to defendants 1 to 3. The defendants agreed to sell the plaint scheduled property to the plaintiff and the plaintiff agreed to purchase the same for a price of Rs.60,000/- per cent. Ext.A1 is the sale agreement entered into in that respect on 16.11.2008. On the date of execution of Ext.A1, a sum of Rs.3,00,000/- was paid as advance and another Rs.7,00,000/- was paid on 16.12.2008. As per the terms of the agreement, the agreement was to be performed by 15.9.2009. According to the plaintiff, in pursuance to the agreement, he was permitted to develop the property and accordingly he had put up barbed wire fence around the plaint scheduled property by spending Rs.60,000/-. An extent of 42.967 cents belonging to Tony Joe and Tessy George was purchased by the plaintiff as per registered assignment deeds. The plaintiff was always ready and willing to perform the agreement with respect to the balance property covered by the agreement, upon paying the balance consideration. Though he approached the father of the defendants Mr.George, for getting the sale deed executed after paying the balance sale consideration, he evaded the same. Therefore, the period of agreement was extended till 31.12.2009, at the instance of the defendants. On 31.12.2009, when the plaintiff approached the father of the defendants for getting the sale deed executed, he informed them that the defendants are coming to the native place and that they are ready to execute the assignment deed. Further, the father of the defendants who was also their Power of Attorney holder, told him that out of the scheduled property, six cents lying in front of the 1^st item is puramboku land, without any proper document and that the plaintiff has to purchase the same also for the same price, which was not acceptable to the plaintiff. Therefore, on 5.12.2011, at the instance of the plaintiff a lawyers notice was issued, intimating his readiness and willingness to get the sale deed executed after paying the balance sale consideration. However, the defendants sent a reply raising false contentions. It was in the above context that the plaintiff preferred the suit.

3. The defendants filed a written statement denying the execution of the agreement, on the ground that they have not signed it. They have also contended that the plaintiff has not made any improvements in the properties with the consent and knowledge of the defendants. According to them, the plaintiff has not obtained any sanction for developing the property. According to the defendants, they purchased plot Nos.108, 116, 249, 233 and 218 in Akkara Gardens, Thiroor, Thrissur for constructing a residential house for the siblings. Since the idea did not work, they decided to dispose of their respective properties. Accordingly, the plaintiff approache