JUDGMENT 1. THIS appeal is directed against an appellate decree reversing the decree passed by a learned Munsif. Two points arise for my decision m this appeal. One is whether in the matter of a contract of sale, the plaintiff, who was to be the purchaser, was a defaulter and was liable to have his earnest money forfeited by the defendants; the other is whether the earnest money was liable to be forfeited in its entirety or whether the defendants vendors were entitled to receive only a reasonable compensation out of the earnest money. 2. THE facts leading to the dispute are hereinafter stated. On September 27, 1946, the plaintiff entered into an agreement with the father and predecessor of the defendants, one Nagendra Nath Das, under which he agreed to purchase premises no. 15[1, Elgin Road for a sum of Rs. 29,000/- and paid to the said Nagendra Nath Das a sum of Rs. 1001/- as earnest money. The principal terms of the aforesaid agreement were: (1) That the vendor shall be liable to make over to the purchaser only a copy of the partition decree and some municipal rate bills and it will be for the intending purchaser to have inspection of other deeds of title either from the Collectorate or from the Court. (2) The intending purchaser will have to approve, if at all, the title of the vendor within 15 days of the re-opening of the High Court after the long holidays and within 15 days of the date of the approval of the title to have the conveyance executed on payment of the balance of the consideration money. (3) If the title was not approved by the Solicitor of the intending purchaser within the time as aforesaid, the vendor shall be liable to refund the earnest money with costs not exceeding Rs. 32/ -. If, however, the Solicitor for the purchaser neglected to approve of the vendor's title within the fixed time, the title of the vendor shall be deemed to have been approved, in that event, by the intending purchaser. (4) If the intending purchaser failed to have the conveyance executed and registered within December 31, 1946, the vendor shall be at liberty to forfeit the earnest money and to cancel the agreement for sale without notice and also to transfer the property to any body else. (4) If the intending purchaser failed to have the conveyance executed and registered within December 31, 1946, the vendor shall be at liberty to forfeit the earnest money and to cancel the agreement for sale without notice and also to transfer the property to any body else. (5) The date December 81, 1946, was to be treated as the essence of the contract of sale. 3. IT is admitted before me that the date of the re-opening of the High Court after the long holidays, referred to in the agreement of sale, was November 11, 1946. According to the plaintiff the sale did not take place because of the default on the part of Nagendra Nath Das to perform his part of the contract in the matter of delivery of documents to the plaintiff's Solicitor. He therefore, claimed refund of the earnest money together with costs incurred by him. The suit was contested by Nagendra Nath Das, who filed a written statement. Nagendra Nath Das, however, died thereafter and the contest was carried on by his heirs, who were substituted in his place. 4. ACCORDING to the written statement Nagendra had made over the certified copy of the partition decree and the municipal rate bills to the plaintiff. Thereafter, it was alleged, the plaintiff was himself in default in not completing the transaction within the time agreed upon. It was, therefore, contended that the plaintiff made himself liable to forfeiture of the earnest money in its entirety. The learned Munsif, inter alia, relied on the evidence of the plaintiff's Solicitor P. W. I. and came to the conclusion that there was no latches on the part of the plaintiff in the matter of the completion of the contract and Nagendra, the vendor, therefore, was not entitled to forfeit the earnest money. The learned Munsif, therefore, decreed the plaintiff's claim. The defendants appealed. The lower appellate court reversed the decree passed by the learned Munsif and dismissed the plaintiff's claim for refund. It is the propriety of the appellate decree which is being disputed before; me in this second appeal, at the instance of the plaintiff. The learned Munsif, therefore, decreed the plaintiff's claim. The defendants appealed. The lower appellate court reversed the decree passed by the learned Munsif and dismissed the plaintiff's claim for refund. It is the propriety of the appellate decree which is being disputed before; me in this second appeal, at the instance of the plaintiff. It was contended, on behalf of the plaintiff appellant, that the court of appeal below was wrong in not coming to the conclusion that the vendor Nagendra was very much remiss in the performance of his obligation under the contract, in so far as it related to the production of the title deeds for inspection of the intending purchaser or in so far as it related to giving opportunities to the purchaser's Solicitor in the matter of obtaining inspection of the documents from the records of an appeal pending in the appellate side of the High Court. It was contended that it was not until it was too late that Nagendra, the vendor, appointed an Advocate to help the plaintiff or his Solicitor in the matter of obtaining inspection of certain documents. The grievance that was made before me was that this aspect of the matter, which appeared from the evidence on behalf of the plaintiff, was not taken into consideration by the lower appellate court and the judgment of reversal was not, therefore, a proper judgment. Alternatively it was urged that Nagendra by his conduct must be deemed to have extended the time for a performance of the contract as originally fixed, namely, December 31, 1946 and therefore, it was contended, he had no right to forfeit the earnest money before time. 5. THE court of appeal below was satisfied that Nagendra had made over to the plaintiff or to his Solicitor the copy of the partition decree and the municipal rate bills, as had been agreed upon. Thereafter it was for the plaintiff to make searches for other documents of title. 6. THE contention that the documents were lying with the records of an appeal pending in the High Count and could not be inspected unless the vendor's Advocate arranged for giving inspection of the documents, which was said to have been done only after it was too late, does not carry any weight. 6. THE contention that the documents were lying with the records of an appeal pending in the High Count and could not be inspected unless the vendor's Advocate arranged for giving inspection of the documents, which was said to have been done only after it was too late, does not carry any weight. In the first place for making searches for title deeds in the registration office or in the Collectorate, no assistance from the side of the vendor was required by the plaintiff and he might have himself found the contents of title deeds relating to the disputed property by making searches in the registration office and in the Collectorate. In the next place it does not appear that within December 31, 1946, the plaintiff, at all, made any request for assistance, by the Advocate of the vendor, in the matter of inspection of documents from the records of the High Court appeal. Lastly, there is a procedure prescribed under the High Court Appellate Side Rules (Chapter XVI Rule 5) under which the plaintiff, though a stranger to the appeal, could obtain inspection of the documents by obtaining" an order on an application for inspection in the prescribed form. No such application appears to have been made by the plaintiff. These are circumstances which speak very much against the conduct of the plaintiff and if in those circumstances the Court of appeal below found that the plaintiff was, himself in the wrong and wholly blameworthy, it cannot be said that the finding was an unreasonable finding. Then again the contention, advanced on behalf of the plaintiff, that the time for performance of the contract was extended by implication was not accepted by the court of appeal below, because it was satisfied that there was no evidence of extension of time. It was contended on behalf of the appellant that the fact that Nagendra made arrangement for inspection of the documents lying with the record of the High Court appeal, through his own Advocate in the month of February, 1947, even after the expiry of the time for performance of the contract, was applicable only on the theory that the time for performance of the contract by the plaintiff was extended by Nagendra. That may be a theory. I am, however, not concerned with theories but with facts. That may be a theory. I am, however, not concerned with theories but with facts. If extension of time to perform the contract was a fact, the plaintiff, who himself gave evidence, was expected to say so, which he did not. Not having said so, it was not open to him thereafter to contend that such extension of time must be presumed. I am not prepared to make such a presumption in favour of the plaintiff. I, therefore, overrule the contentions advanced on behalf of the plaintiff. 7. IT, however, remains for me to decide whether in the facts of the instant case and regard being had to the terms of the agreement for sale the vendor, Nagendra, was entitled to forfeit the earnest money in its entirety or was entitled only to a reasonable amount out of the earnest money deposit, as compensation. When a contract for sale is broken by an intending purchaser, the right, of the vendor to forfeit such money is to be determined from the intention of the parties as evidenced by the agreement. 8. I have already referred to the material portion of the agreement of sale. In the agreement, there was an express clause for forfeiture of the earnest money in case the intending purchaser failed to complete the purchase within a fixed time after the approval of the vendor's title to the property. The time for purchase was expressly made the essence of the contract. Reading the agreement as a whole, I have no doubt in my mind that the intention of the parties was to make the intending purchaser liable to forfeiture of the earnest money in its entirety, if he was in breach of the contract. The next question is whether by reason of the provision in section 74 of the Indian Contract Act, the vendor, Nagendra Nath Das, was to receive only a reasonable compensation out of the earnest money or to have the whole of the amount. The next question is whether by reason of the provision in section 74 of the Indian Contract Act, the vendor, Nagendra Nath Das, was to receive only a reasonable compensation out of the earnest money or to have the whole of the amount. In a very full and exhaustive judgment delivered by P. N. Mookerjee, J. and reported in (1) 55 C. W. N. 765 (Naresh Chandra v. Ram Chandra) earnest money was said to be an amount paid really under a "contract of security", a contract distinct from the real or pure contract of sale, because it related to the security for the performance of the real contract of sale and was evidenced by the term of forfeiture. "this is", his Lordship observed, "strictly speaking, no part of the real contract of sale and it needs performance or enforcement only when the real contract of sale is broken or goes off otherwise As to Section 74, it is enough to say that by its very terms, it is inapplicable to cases of earnest money which is an amount, paid really under the contract of security as named above,-and there is no question of any breach of that contract or of any amount payable on such breach at the time of the making of the contract of sale and is not, at any rate, an amount named in the contract of sale to be paid as compensation on breach thereof. Section 74 of the Indian Contract Act cannot, therefore, be attracted to such cases without doing violence to the language used therein. It may also be pointed out in this connection that application of Section 74 to cases of earnest money would, in many instances, lead to strange and absurd consequences. This would be apparent if we remember that usually earnest money is small and that if earnest money be taken to be "the sum named in the contract as the amount to be paid in the case of its breach" within the meaning of Section 74, as it must necessarily be if Section 74 is to be held applicable to cases of "earnest money", the vendor, whatever his losses for breach of the contract by the purchaser, would not be able to recover any compensation beyond the earnest money, which would be, in view of the terms or provisions of the said section, the maximum compensation, recoverable by him". 9. I respectfully agree with the views expressed by P. N. Mookerjee, J. in the aforesaid judgment. I desire, however, to add another reason why Section 74 shall not be taken to apply to forfeiture of earnest money kept in deposit with the intending vendor. Section 74 provides that when a contract has been broken (i) if a sum is named in the contract as the amount to be paid in case of such breach, or (ii) if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or as the case may be, the