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11. Before turning to the question about the
compensation which may be awarded to the plaintiff, it
is necessary to consider whether Section 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 Section 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 Section 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
forfeiture, 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. We may briefly refer to certain
illustrative cases decided by the High Courts in India
which have expressed a different view.