IMPORTANT POINT
A stipulation for double the earnest money in a contract requires the plaintiff to prove actual damages; otherwise, the remedy is limited to the refund of the earnest money.

JUDGMENT :

Mr. Anil Kshetarpal, J. :- This is the plaintiff’s Regular Second Appeal to assail the correctness of the judgment and decree passed by the courts below.

2. In order to comprehend the issue involved in the present case, some relevant facts, in brief, are required to be noticed.

3. The appellant (plaintiff before the trial court) filed the suit for the specific performance of the agreement to sell dated 22.08.1984 with respect to the land measuring 9 bighas on payment of the balance sale consideration. The defendants contested the case on the ground that defendant no.1 agreed to sell his 1/4th share in the agricultural land measuring 9 bighas as he was owner to that extent. It was also alleged that he is an illerate person and the plaintiff mischievously got recorded the entire land measuring 9 bighas. The trial court, in the facts and circumstances of the present case, did not grant the relief of the specific performance of the agreement to sell but awarded Rs.47,000/-. However, the defendants filed the appeal. The First Appellate Court has reduced the amount to Rs.28,200/-. It may be noted here that the plaintiff never filed any first appeal before the First Appellate Court. Thus, the total dispute involved in the present appeal is approximately Rs.18,800/-. This appeal is pending for the last 32 years.

4. Heard the learned counsel representing the appellant at length and with his able assistance perused the paperbook.

5. Learned counsel representing the appellant submits that the First Appellate Court has erred in reducing the amount as the trial court had decreed the suit as per the terms stipulated in the agreement. He submits that it was agreed that if the defendant no.1 failed to perform his part of contract, he shall be liable to pay the amount equivalent to double of the earnest money.

6. This Court has considered the submissions made by the learned counsel representing the appellant.

7. By now, it is well settled that the amount equivalent to double of the earnest money can be passed only if the plaintiff proves damages to that extent. In the absence thereof, the plaintiff is only entitled to refund of the earnest money. Such stipulation for payment of the amount equivalent to double of the earnest money is a penal provision and therefore, the plaintiff is required to prove the damages. The First Appellate Court has already awarded Rs.28,200/- over and above the refund of the earnest money.

8. Keeping in view the aforesaid facts, no ground to interfere is made out.

9. Hence, dismissed. All the pending miscellaneous applications, if any, are also disposed of.