Govinda Menon, J.-The plaintiffs in O.S. No. 118 of 1946 on the file of the Sub-Court, Madurai, are the appellants in Appeal No. 127 of 1952 and the plaintiff in O.S. No. 31 of 1950 on the file of the same Court is the appellant in Appeal No. 933 of 1952.

The subject-matter of these two suits related to cross-claims and as such in this judgment the plaintiffs in O.S. No. 118 of 1946 who are the defendants in O.S. No. 31 of 1950 will be known as the plaintiffs-appellants and vice versa the defendant in O.S. No. 118 of 1946 who is the plaintiff in O.S. No. 31 of 1950 will be known as the defendant-respondent. The facts which have given rise to these proceedings can be summarised shortly in the following way: There were five contracts evidenced by Exhibits A-1 to A-5 entered into between the parties by which on the whole 133 bales of cotton yarn were agreed to be purchased by the plaintiffs for which purpose a sum of Rs. 10,560-8-0 was advanced to the defendant. On the ground that the defendant did not deliver the goods contracted for the plaintiffs have filed O.S. No. 118 of 1946 for the return of the advance amount with interest thereon totalling to Rs. 12,404-15-3. The defendant on the other hand has claimed damages on the ground that the plaintiffs-purchasers have committed breach of contract and failed to take delivery of the goods by paying the price and therefore the defendant had to sell the goods which fetched a lower price than was contracted, the difference between the contract price and the price fetched at the resale being Rs. 13,308-2-0 which along with the brokerage paid by the defendant came to Rs. 13,421-2-0. Out of this, deducting the deposit amount of Rs. 10,560-8-0 the balance came to Rs. 2,860-10-0 from which interest at four per cent. per annum on Rs. 10,560-8-0 as per vaddi chittai of Rs. 63-15-5 was deducted. The balance of Rs. 2,796-10-7 with interest thereon at six per cent. per annum from the date of sale namely nth November, 1943, till the date of the suit came to Rs. 3,300-13-2 and the defendant claimed a sum of Rs. 3,300.

The learned Subordinate Judge found that the defendant had not committed any breach but on the other hand the plaintiffs were not ready and willing to perform their part of the contract. But on the finding that there is no evidence as regards the market price or the price which the goods would have fetched had they been sold on 31st October, 1943, which was the last date for delivery of the goods, the defendant’s suit for damages was also dismissed on the ground that the amount of damages has not been proved.

It has been held in Rattamma v. Krishnamurthi1, which decision has not so far been overruled or dissented from at least no case to that effect has been brought to our notice-that a sum of money paid as advance by the purchaser to the vendor in respect of the sale of goods can be recovered by the purchaser even though the transaction of sale fell through owing to the purchaser’s default, unless the vendor proves a contract express or implied, that the money paid as advance should be treated as security for the purchaser’s fulfilment of the bargain and as such liable to be forfeited on his default. The learned Judges refer to Collins v. Stimson1 and Howe v. Smith2, regarding the import of the term “deposit” and observing that the connotation put upon it in the English Courts should not be applied to Indian contracts, held that the defaulting purchaser is entitled to a refund of the advance paid. Even if, therefore, the plaintiffs broke the contract they are entitled to get back their advance but since damages in O.S. No. 31 of 1950 has been computed by deducting the advance paid from the actual loss sustained by the defendant at the resale, and, therefore, if we are to hold that the defendant has sustained damages and that has been proved to the satisfaction of the Court, then the set-off claimed in O.S. No. 31 of 1950 can be rightly allowed. If on the other hand the defendant has n

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