The main legal point established in the judgment is that the deposit money received by the vendor under a rescinded contract of sale should be returned to the purchaser, and the vendor has the right to recover damages from the purchaser for the breach of contract under the Indian Contract Act.

Charles Arnold White, C.J.

1. The contract; we have to consider no doubt differs in some respects from the ordinary vendor and purchaser contract which was before the Courts in most of the cases which were discussed in the course of the argument in this appeal. The consideration for the contract in question was a sum of Rs. 41,000, of which Rs. 4,000 is stated to have been received by the vendor on the date of the agreement, Rs. 20,000 was to remain on mortgage, and the balance was to be paid on a specified date. If the purchaser failed to carry out the contract, he was to forfeit the Rs. 4,000 advance. If the vendor failed to carry out the contract he was to refund the advance and pay Rs. 4,000. There was a further provision that the vendor should execute the sale-deed before the agreed date either in favour of the purchaser or in favour of the purchasers nominees. In pursuance of this, the vendor, before the agreed date, sold some of the lands to a nominee of the purchaser.

2. I do not think the fact that there was a reciprocal agreement by which Rs. 4,000 was to be forfeited to the vendor if the purchaser was in default, and Rs. 4,000 was to be paid by the vendor (besides refunding the advance) if the vendor was in default, or the fact that there was part performance of the contract before the agreed date, makes any difference for the purpose of the question we have to decide, viz., whether, in the events which have happened, the vendor is entitled to retain the Rs. 4,000.

3. As a matter of fact, the vendor has been able to sell the unsold portion of the land, or part of it, for more than the amount provided for in the agreement. This, again, in my opinion, does not affect the question we have to decide.

4. I agree that the question must be determined with reference to the provisions of the Indian Contract Act and that if they are in conflict with the English law as laid down in the English authorities, we must follow the statute.

5. I think, however, it may safely be premised that in a question such as this it was not the intention of the Legislature to depart from what was understood to be the English law at the time the Indian Contract Act was passed. It is also to be observed, as Wallis, J., points out, that though several cases as to the right to recover deposits have been decided in India since the Contract Act was passed, in none of these has it been suggested that under the provisions of that enactment the law of India differed from that of England with reference to this question.

6. In the contract before us we have an express agreement that, in default by the purchaser, the Rs. 4,000 was to be forfeited. Unless, therefore, the defaulting party can obtain relief on grounds of equity, or under some statutory enactment, he is bound by his bargain. In Howe v. Smith (1884) L.R., 27 Ch. D., 89 at p. 101 Fry, L.J., said: "Money paid as a deposit must, I conceive, be paid on some terms implied or expressed. In this case no terms are expressed, and we must therefore inquire what terms are to be implied. The terms most naturally to be implied appear to me in the case of money paid on the signing of a contract to be that in the event of the contract being performed it shall be brought into account, but if the contract is not performed by the payer it shall remain the property of the payee. It is not merely a part-payment, but is then also an earnest to bind the bargain so entered into, and creates by the fear of its forfeiture a motive in the payer to perform the rest of the contract." The learned Lord Justice was dealing with a case where there was no express agreement. Here we have an express agreement, and the observations, as it seems to me, apply a fortiori. If time was of the essence of the contract into which the parties entered (and, in the opinion of Wallis, J., and of the Subordinate Judge, it was) it seems to me clear that (unless the plaintiff can establish that the provisions of the Contract Act give him a rig