An amount paid at the time of a contract is presumed to be an advance and not a deposit or earnest money.

ORDER :- The only question which is involved in this revision proceeding is whether an amount of Rs. 500 which was paid at the initial stage of an agreement to convey properties between the parties, represents an advance simpliciter, or has any tinge of the character of a deposit for due performance of the contract, or earnest money. If the amount of Rs. 500 is only an advance, the plaintiff (revision petitioner) was bound to succeed in his suit. If it could be conceivably held that the amount of Rs. 500 could be regarded, notwithstanding the mere nomenclature in the document the absence of a forfeiture clause, or the absence of any other indication in the evidence, as a deposit for the due performance, or earnest money, then the plaintiff will have to fail. The Courts below have non-suited the plaintiff, and he is the revision petitioner here.

2. For an important reason, I am not now proceeding into the one question of fact decided by the courts below, that time had to be construed as the essence of this contract on the facts, and further that it was the plaintiff, the intending vendee, who committed breach of the contract. Had the matter been open for my determination, some probabilities could no doubt be stressed by learned counsel for the petitioner, for an opposite view. It is a fact that the vendor later sold the properties shortly after the expiry of the period fixed, for a sum of Rs. 22,000 to a third party. But for an important reason, I am not now proceeding into this aspect at all. Actually, learned counsel for the respondent argues, on the strength of the dicta of the Supreme Court in Pandurang v. Maruti, AIR 1966 SC 153, that it is not even open to me to interfere in revision with the dismissal of the suit of the plaintiff for recovery of the alleged advance of Rs. 500. The argument is that errors of fact cannot be canvassed in revision under S. 115 C. P. C. and even errors of law cannot be so canvassed, unless such errors have affected the jurisdiction of the trial court. In any event, these dicta will certainly inhibit me from any reassessment of the evidence, on the question of who committed the breach and arrival of any different conclusion after such reassessment. We must therefore take it as established, that time was the essence of the contract in this case, and that the plaintiff did commit breach of the contract.

3. Even so, on the facts, it is very difficult to see how there is any legal evidence on which the conclusion could be based that the amount of Rs. 500 was a kind of deposit, or earnest money, or security for performance, and hence liable to be taken in forfeiture by the vendor. As far as the written statement is concerned, it is significantly silent on this aspect. Most of the written statement is concerned with the facts which would show that it was the plaintiff the intending purchaser, who committed the breach of the contract. As far as the document itself is concerned, though a particular nomenclature or the lack of certain words may not be decisive, the document is very unhelpful as regards the hypothesis that the amount of Rupees 500 could represent any earnest money, or security. Ex facie, this amount merely appears to be an advance, in respect of the consideration. But I am willing to assume, on the authorities placed before me, that mere nomenclature in the document, or the absence of any forfeiture clause, may not be decisive and that the character of a deposit or earnest money could be spelt out from the circumstances and the evidence.

4. Even so, the very great difficulty in this case is the total absence of any circumstances or legal evidence, which would tend to show that the amount of Rs. 500 was not a mere advance, but was some kind of security for due performance or earnest money. I shall now refer briefly to the authorities cited by learned counsel on both sides, in order to demonstrate that where there is a total lack of legal evidence the finding cannot be supported tha