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Suit no. 2423/2016 Sh. Amit Goel V/s. Smt. Renu Sharma Page no. 5 of 14
h). There is no dispute with the proposition laid down in Director of Settlement Supra. This court is bound by the precedents laid down by the Superior Courts. Fateh Chand Supra is a constitution bench decision. It was held in Fateh Chand Supra as follows: " Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases
(i) where the contract names a sum to be paid in case of breach and `ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a covenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by s. 74 reasonable compensation not exceeding the penalty stipulated for. In assessing damages the Court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of tile case. jurisdiction of the Court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; but compensation has to be reasonable, and that imposes upon the Court duty to award compensation according, to settled principles. The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract, whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of "actual loss or damages"; t does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted, because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breach. Before turning to the question about the compensation Suit no. 2423/2016 Sh. Amit Goel V/s. Smt. Renu Sharma Page no. 6 of 14 which may be awarded to the plaintiff, it is necessary to consider whether s. 74 applies to stipulations for forfeiture of amounts deposited or paid under the contract. It was urged that the section deals in terms with the right to receive from the party who has broken the contract reasonable compensation and not the right to forfeit what has already been received by the party aggrieved. There is however no warrant for the assumption made by some of the High Courts in India, that s. 74 applies only to cases where the aggrieved party is seeking to receive some amount on breach of contract and not to cases where upon breach of contract an amount received under the contract is sought to be forfeited. In our judgment the expression "the contract contains any other stipulation by way of penalty" comprehensively applies to every covenant involving a penalty whether it is for payment on breach of contract of money or delivery of property in future, or for forfeiture of right to money or other property already delivered. Duty not to enforce the penalty clause but only to award reasonable compensation is statutorily imposed upon courts by s. 74 . In all cases, therefore, where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of contract which expressly provides for forfei ture, the court has "
jurisdiction to award such sum only as it considers reasonable, but not exceeding the amount specified in the contract as liable to forfeiture. (emphasis supplied)
i). It has been held in Fateh Chand supra that Section 74 of Indian Contract Act would apply even to forfeiture of money already delivered under a contract and the courts have been enjoined not to enforce penalty clause but only to award reasonable compensation.
p). Coming to the facts of the present case, there can be no dispute that the forfeiture clause in the agreement to sell was by way of penalty. There is no material before this court to presume otherwise and to hold that the forefeiture was of a predetermined amount by way of compensation or a genuine pre estimate of the damages. It is thus clear that in terms of Fateh Chand supra Section 74 of Indian Contract Act would apply even to forfeiture of money already delivered under a contract and the courts have been enjoined not to enforce penalty clause but only to award reasonable compensation.
q). In the facts of the case, Rs.6 lacs given as advance was a substantial amount. No loss has been proved on record by the defendant. Rather as per the sale deed produced on record by the defendant, the suit property was sold by her for Rs 59,08000/ at a profit of about Rs 58,000/. The question of breach of contract by the plaintiff is of no consequence and under section 74 of the contract act, the defendant cannot enforce penalty clause but is only entitled to forfeit a nominal and reasonable amount. However, in the facts of the case, interest of justice would be served in case the defendant is held entitled to forfeit nominal and reasonable amount of Rs.60,000/ being Suit no. 2423/2016 Sh. Amit Goel V/s. Smt. Renu Sharma Page no. 13 of 14 10% of the advance deposited in view of ratio in M. C. Luthra (supra). This issue is answered accordingly.