THOTA SAMBAYYA Vs. DEVABHAKTUNI RAMANADA DUTT

JUDGEMENT

(1.) On a consideration of the facts and circumstances of the case, both the Courts below have found that it was the plaintiff-appellant who had committed breach of the contract entered into between him and the respondent, the terms of which were embodied in Ex. A-1. They have further, found that not only had the appellant defaulted in paying the balance of the purchase money of Rs. 3,100/ within the stipulated time of three months and failed to surrender the vehicle to the respondent, but he had had the use of the lorry for five months and had more than compensated himself for the sum of Rs. 2,000/, which he had paid as advance. In that view both the Courts have held that the appellant was not entitled to recover the advance money of Rs. 2000/ or a similar, sum as damages.

(2.) Mr. Chandrasekhara Sastri for the appellant however contends that assuming that the appellant had broken the contract, the Courts below had nevertheless to consider the applicability of Section 74 of the Contract Act, and as they have not addressed themselves to that question, a finding maybe called for by this Court on that issue. In other words, his contention is that notwithstanding the forfeiture clause contained in Ex. A-1, having regard to the largeness of the amount, the Court has to consider whether the stipulation for forfeiture was by way of penalty, and if so, what would be reasonable compensation for the breach.

(3.) This point was not taken in either of the Courts below and it is taken for the first time here. Even so, I have no hesitation in holding that in the circumstances of this case, the term as to forfeiture cannot be regarded as "a stipulation by way of penalty" so as to disentitle the respondent to forfeit the deposit; in, other words, it cannot be said that the forfeiture provision is so unreasonable as to justify the Court in granting relief to the buyer. The burden of showing a ground for relief against forfeiture is on the appellant in view of the fact that there is an express term in that behalf in the contract Ex. A-1, and that burden he has failed to discharge. On the contrary all the indications are that since the appellant had had the benefit of plying the lorry for five months, he must have reimbursed himself to the extent of the advance paid by him or at any rate a substantial part of it; and looking at it from the point of view of the seller, the latter had been deprived of the use of the vehicle for that period.