accordingly argued that ordinarily in cases like the
present Court have allowed forfeiture of 10% of the price or lesser
depending on the facts ... Fateh Chand Vs. Balkishan Dass AIR 1963
SC 1405 to argue that forfeiture of earnest money is permitted provided
RFA No.780/2017 Page
present case not concerned to decide
whether a covenant of forfeiture of deposit for due
performance of a contract falls within the first class ... that
notwithstanding any term in the contract predetermining
damages or providing for forfeiture of any property by way
of penalty, the court will award
contract being an agreement to sell
then that act of forfeiture is one falling under Section 74 of the
Indian Contract Act, 1872 and that ... Supreme Court in the case of Kailash Nath
Associates (supra) that on forfeiture being effected of earnest
moneys paid under the contract, the said
case not
concerned to decide whether a contract containing a covenant of
forfeiture of deposit for due performance of a contract falls within
the first ... that notwithstanding any term in the contract predetermining
damages or providing for forfeiture of any property by way of
penalty, the court will award
Contract Act, 1872,
no cause of action arises for claiming damages or forfeiture of advance
money received under the agreement to sell as damages. This ... present case not concerned to decide
whether a covenant of forfeiture of deposit for due
performance of a contract falls within the first class
subject Agreement to
Sell dated 28.9.2011. The law with respect to forfeiture of an amount
paid by a buyer to a seller under the Agreement ... order dated 12.9.2017 of
appellant/defendant restricting the claim of forfeiture to a reasonable
RFA No.181/2017 Page 2 of 32
amount
breach of contract/seller to retain any
earnest money amount upon forfeiture, such loss has to be specifically
pleaded and proved.
43. The court would ... respondents. The Supreme
Court in the judgment of Fateh Chand (supra) allowed forfeiture
RFA No.404/2018 Page 3 of 36
of amount
nature of an agreement to sell, there cannot
be forfeiture of the huge amount of earnest money unless and until loss is
pleaded and proved ... present case not concerned to decide
whether a covenant of forfeiture of deposit for due performance of a
contract falls within the first class
been held in these judgments that clauses of forfeiture of
liquidated damages by their very nature are hit by Section 74 of the
Contract ... once losses otherwise can be established, and
only on establishing of which forfeiture can take place. The relevant
observations of the Supreme Court
case not concerned to decide
whether a contract containing a covenant of forfeiture of
deposit for due performance of a contract falls within the first ... that notwithstanding any term in
the contract predetermining damages or providing for
forfeiture of any property by way of penalty, the court will
award
