The plaintiff is the petitioner before me. He engaged the defendants to carry a certain quantity of tiles for him from Beypore to Marmagoa and paid them what was called an “advance” of Rs. 100 (Rupees one hundred only). The Court below has found that the plaintiff was not ready with the tiles and that after waiting a reasonable time the defendants went away with their boats. It also found that the defendants were entitled to appropriate the advance towards the expense they had incurred in waiting from 27th October, 1947 to 2nd November, 1947, for the tiles.

Mr. Nambisan the learned advocate for the petitioner contends that the view of the Court below was wrong and cites in support of his argument the decision of the Privy Council in Muralidhar Chatterji v. International Film Co., Ltd.1. Now whether that decision would apply or not would depend upon the question whether the payment of Rs. 100 (Rupees one hundred only) in this case was earnest money or only payment on account. If it was really only payment on account, the Calcutta case would apply and the plaintiff would be entitled to a return of the money the defendants being relegated to a suit for damages. If on the othe