Judgment Pradeep Nandrajog, J. 1. Suit seeking specific performance of an agreement to sell dated March 21, 2006 filed by the respondent against the appellant has been decreed by the learned Single Judge vide impugned judgment and decree dated December 20, 2010. The appellant has been directed to execute and have the sale-deed registered with respect to Flat No.22, Zakir Bagh, New Delhi upon respondent paying the balance sale consideration in sum of Rs.40,00,000/- (Rupees Forty Lacs only). Since the appellant did not receive Rs.40,00,000/- (Rupees Forty Lacs only) tendered by the respondent to him after the decree was passed the said sum has been deposited by the respondent in this Court evidenced by orders passed in the suit after the decree was passed. 2. Case pleaded by the respondent was that after negotiations between the respondent and the appellant the agreement to sell Ex.P-1 was executed in which appellant agreed to sell Flat No.22, Zakir Bagh, New Delhi to him for a sum of Rs.75,00,000/- (Rupees Seventy Five Lacs only). Appellant received Rs.5,00,000/- (Rupees Five Lacs only) in cash towards earnest money-cum-part sale consideration as recorded in Ex.P-1. He paid a further sum of Rs.12,00,000/-(Rupees Twelve Lacs only) in cash to the appellant towards part sale consideration on April 27, 2006 receipt whereof was acknowledged by the appellant vide receipt Ex.P-2. He paid further sum of Rs.5,00,000/- (Rupees Five Lacs only) in cash to the appellant on May 03, 2006 to the appellant who acknowledged receipt whereof vide receipt Ex.P- 3. On May 14, 2006 he paid Rs.13,00,000/- (Rupees Thirteen Lacs only) in cash to the appellant receipt whereof was acknowledged by the appellant vide receipt Ex.P-4. He paid a further sum of Rs.9,00,000/- (Rupees Nine Lacs only) to the appellant vide bankers’ cheque Ex.P-5 on May 16, 2006 issued by ICICI Bank Ltd. New Delhi. In this manner he paid Rs.43,00,000/- (Rupees Forty Three Lacs only) to the appellant. He pleaded that the appellant assured that the deal shall be completed within three months from the date when Ex.P-1 was executed i.e. March 21, 2006. In this manner he paid Rs.43,00,000/- (Rupees Forty Three Lacs only) to the appellant. He pleaded that the appellant assured that the deal shall be completed within three months from the date when Ex.P-1 was executed i.e. March 21, 2006. He pleaded further in paragraph 5 of the plaint, and since said pleading is relevant we reproduce the same:- “As per the terms and conditions of this agreement to sell the plaintiff has made the payment of Rs.44,00,000/- out of which a demand draft of Rs.9,00,000/- was returned by the defendant with ulterior motive, while he had various documents, bye-laws of Zakir Bagh CGHS Ltd., PAN and others delivered to the plaintiff to prepare all the necessary documents for transfer.” 3. In paragraphs 6 onwards of the plaint the respondent pleaded that the appellant orally agreed to execute the sale-deed in favour of respondent’s daughter Ms.Shumsha Tehsim and accordingly his daughter purchased stamp papers Ex.PW-1/9 in her name on May 10, 2006 in sum of Rs.2,28,000/- (Rupees Two Lacs Twenty Eight Thousand only) on the basis of sale consideration being Rs.40,00,000/- (Rupees Forty Lacs only) because appellant wanted to receive the remaining amount towards fittings and fixtures in the flat which was agreed to by the respondent. He pleaded that as instructed by the appellant his daughter came to Delhi from Dubai on May 11, 2006 to complete the transaction and reach the office of the Sub-Registrar V on May 12, 2006 with balance sale consideration to complete the registration formalities and for which she had executed a special power of attorney Ex.PW-1/10 in favour of Mohd.Tariq Amin to complete the sale transaction. Pleading that the appellant turned dishonest and through his lawyer sent a legal notice terminating the agreement alleging defaults against him, refuting any default by him, respondent sued praying to the Court that the agreement to sell Ex.P-1 should be specifically enforced. In other words having pleaded that he took back Rs.9,00,000/- (Rupees Nine Lacs only) paid by a bankers’ cheque from the appellant, respondent claimed to have paid Rs.35,00,000/- (Rupees Thirty Five Lacs only) to the appellant. 4. In the written statement filed by the appellant he admitted execution of Ex.P-1 and receipt of Rs.5,00,000/- (Rupees Five Lacs only), Rs.12,00,000/- (Rupees Twelve Lacs only), Rs.5,00,000/- (Rupees Five Lacs only) and Rs.13,00,000/- (Rupees Thirteen Lacs only) in cash pursuant to the agreement to sell. 4. In the written statement filed by the appellant he admitted execution of Ex.P-1 and receipt of Rs.5,00,000/- (Rupees Five Lacs only), Rs.12,00,000/- (Rupees Twelve Lacs only), Rs.5,00,000/- (Rupees Five Lacs only) and Rs.13,00,000/- (Rupees Thirteen Lacs only) in cash pursuant to the agreement to sell. Pertaining to the bank draft dated May 16, 2006 in sum of Rs.9,00,000/- (Rupees Nine Lacs only) he pleaded that said bank draft was tendered to him on May 18, 2006. He pleaded that he did not accept the bank draft because as per Ex.P-1 he was to be paid a sum of Rs.60,00,000/- (Rupees Sixty Lacs only) by May 15, 2006 but he kept the same with him when the attorney of the respondent told him to keep the bank draft till the matter was sorted out between him and the respondent. He pleaded that the issue could not be sorted out and thus respondent’s attorney took back the bank draft from him on May 20, 2006 and executed acknowledgement Ex.D-2 confirming said fact. He further pleaded by way of defence that since he was having health problems he wanted to shift to Dehradun and thus he had entered into a property transaction through a property dealer to purchase a property at Dehradun and for which he had to pay money to the seller at Dehradun as per an agreed schedule and because the respondent did not pay him Rs.60,00,000/- (Rupees Sixty Lacs only) by the agreed date i.e. May 15, 2006, the deal settled by him at Dehradun got frustrated causing loss to him and thus he was constrained to cancel the agreement to sell Ex.P-1 vide notice dated August 10, 2006 Ex.DW-1/1, and to forfeit the sale consideration received by him. In the written statement, the appellant denied the averments made in the plaint in paragraph 6 that the appellant agreed to sell the flat to respondent’s daughter. He denied any oral agreement to sell the flat for Rs.40,00,000/- (Rupees Forty Lacs only) and to receive Rs.35,00,000/- (Rupees Thirty Five Lacs only) on account of the sale of the fitting and fixtures in the flat, as pleaded to by the respondent in paragraph 6 of the plaint. 5. He denied any oral agreement to sell the flat for Rs.40,00,000/- (Rupees Forty Lacs only) and to receive Rs.35,00,000/- (Rupees Thirty Five Lacs only) on account of the sale of the fitting and fixtures in the flat, as pleaded to by the respondent in paragraph 6 of the plaint. 5. Needless to state on the pleadings of the parties the issues settled were:- (i) Whether time was of the essence of the contract; (ii) Whether respondent was always ready and willing to perform his obligations under the agreement to sell; (iii) Whether the appellant was justified in forfeiting the advance sale consideration received by him under and pursuant to the agreement to sell; and (iv) Whether the plaintiff was entitled to a specific performance of agreement to sell Ex.P-1. 6. The respondent led evidence first, being the plaintiff. Besides examining himself as PW-1 he examined Tariq Amin, his nephew, as PW-2. 7. In his affidavit by way of evidence to be treated as examination-inchief, the respondent deposed facts in harmony with the case pleaded in the plaint. He proved the agreement to sell Ex.P-1, the receipts Ex.P-2 to P-4, bankers’ cheque Ex.P-5 drawn in the name of the appellant by ICICI Bank Ltd. which he later on got cancelled. He proved Ex.PW-1/9 being the stamp papers purchased by his daughter in sum of Rs.2,28,000/- (Rupees Two Lacs Twenty Eight Thousand only). He proved Ex.PW- 1/10 the special power of attorney executed by his daughter in favour of Tariq Amin to complete the sale transaction. He proved having written the letter dated April 18, 2006 Ex.PW-1/8 to Tariq Amin. He proved the postal envelope Ex.PW-1/8 (Colly) in which he had sent the letter Ex.PW-1/8 dated April 18, 2006. He proved his statement of account with ICICI Bank, New Friends Colony, Ex.PW-1/9A evidencing that as of May 16, 2006 after demand draft in sum of Rs.9,00,000/- (Rupees Nine Lacs only) was issued by the bank he had a credit balance of Rs.45,00,000/- (Rupees Forty Five Lacs only) in his bank account. 8. Tariq Amin PW-2 deposed that he was the nephew of the respondent and have been acting on behalf of the respondent with the appellant. He deposed that he had received the letter Ex.PW-1/8 and stamp paper Ex.PW-1/9 was purchased when respondent’s daughter came to Delhi from Dubai on May 11, 2006. 8. Tariq Amin PW-2 deposed that he was the nephew of the respondent and have been acting on behalf of the respondent with the appellant. He deposed that he had received the letter Ex.PW-1/8 and stamp paper Ex.PW-1/9 was purchased when respondent’s daughter came to Delhi from Dubai on May 11, 2006. He deposed that the special power of attorney dated May 12, 2006 Ex.PW-1/10 was executed by respondent’s daughter in his favour because on May 12, 2006 the appellant did not come to the office of the Sub-Registrar V to receive the balance sale consideration and execute the sale-deed and respondent’s daughter had to return to Dubai. Therefore, she executed Ex.PW-1/10 and got it register the same day so that he could act on her behalf as her attorney when appellant executed the sale-deed in her favour and the same was presented for registration before the Sub-Registrar. 9. Relevant would it be to note that PW-2 was cross-examined as to whether the appellant was put to notice by him that the appellant should be present in the office of Sub-Registrar V on May 12, 2006 for sale-deed to be executed and balance sale consideration received, to which he replied that no such notice was given. He was questioned as to why bank draft was prepared in sum of Rs.9,00,000/- (Rupees Nine Lacs only) on May 16, 2006 when as per the agreement to sell the sale-deed had to be executed by May 21, 2006 with full payment tendered. He replied that part payments were made as agreed to during meeting. To the specific question put that payment made on May 14, 2006 in sum of Rs.13,00,000/- (Rupees Thirteen Lacs only) in cash was suggestive that there was no novation of the contract as alleged that sale consideration for the flat would be Rs.40,00,000/- (Rupees Forty Lacs only) and Rs.35,00,000/-(Rupees Thirty Five Lacs only) would be adjusted towards sale of fittings and fixtures, and what did he have to say in respect thereof, the reply given was the suggestion was incorrect. And we highlight that PW-2 failed to give a satisfactory answer as to why Rs.13,00,000/- (Rupees Thirteen Lacs only) was paid in cash on May 14, 2006 when as per the case of the respondent the novated contract was that when respondent’s daughter would be in Delhi the sale-deed would be executed in her name showing sale consideration for the flat to be Rs.40,00,000/- (Rupees Forty Lacs only) and fittings and fixtures in the flat to be sold for Rs.35,00,000/- (Rupees Thirty Five Lacs only). 10. As regards evidence in rebuttal, the defendant examined himself as his sole witness and deposed as per his defence. And relevant would it be to highlight that he failed to disclose which property transaction he had entered into at Dehradun. We note that he was not cross examined on said plea taken by him in his written statement. 11. The agreement to sell Ex.P-1 clearly records as under:- “Whereas the second party has agreed to the said consideration amount and Rs.5 lakhs as earnest money and acknowledged the receipt by the first party and the Rs.40 lakhs (Rupees Forty Lakhs) will be paid by the second party at the destination by 15th May, 2006 and place of the choice of the first party and the balance of Rs.15 lakhs (Rupees Fifteen Lakhs) will be paid up till 15.5.2006 in cash at the home of second party and the balance of Rs.15 lakhs at the time of execution of documents of alienation (in shape of draft).” 12. The ill-worded language of Ex.P-1, read meaningfully would be that the sale consideration of Rs.75,00,000/-(Rupees Seventy Five Lacs only) would be paid : (i) Rs.5,00,000/- (Rupees Five Lacs only) when Ex.P- 1 was executed on March 21, 2006 (a payment which admitted was made); (ii) Rs.40,00,000/- (Rupees Forty Lacs only) by May 15, 2006 at the place of choice of the appellant; (iii) Rs.15,00,000/- (Rupees Fifteen Lacs only) by May 15, 2006 in cash at the house of the appellant; and (iv) Rs.15,00,000/- (Rupees Fifteen Lacs only) when sale-deed would be executed. The agreement to sell clearly mention : ‘That the whole deal will be completed within three months from the execution of this deed of agreement or earnest money and the possession of property in sale will deliver after one month of final payment’. 13. The agreement to sell clearly mention : ‘That the whole deal will be completed within three months from the execution of this deed of agreement or earnest money and the possession of property in sale will deliver after one month of final payment’. 13. The ill-worded clause, meaningfully read, would mean that parties had agreed that the sale-deed would be executed within three months. The agreement to sell fixed a time schedule requiring respondent to pay further sum of Rs.40,00,000/- (Rupees Forty Lacs only) by May 15, 2006 at the place of choice fixed by the appellant and Rs.15,00,000/- (Rupees Fifteen Lacs only) on the same day in cash at his house. Balance sale consideration in sum of Rs.15,00,000/- (Rupees Fifteen Lacs only) was to be paid when the sale-deed would be executed. Possession was to be handed over after one month. 14. With respect to the first issue whether time was of the essence of the contract the learned Single Judge has held, in paragraph 9, that mere mention of time in a contract for its performance when the same relates to immovable property would not make time the essence of the contract. Having regard to the fact that there was a forfeiture clause in the contract, learned Single Judge has held that time could not be considered in the instant case to be the essence of the contract, at best, it would be an important factor to be kept in mind while deciding whether respondent would be entitled to a specific performance of the agreement to sell. 15. Taking up issue No.2 and 4 together, the learned Single Judge has opined that the evidence reflected that the parties were unofficious in their conduct evidenced by part payment received by the appellant from the respondent not as per the time schedule fixed under Ex.P-1. With reference to the letter Ex.PW-1/8 dated April 18, 2006 written by the respondent to his nephew Tariq Amin (PW-2) the learned Single Judge has held that the same evidences that it was subsequently agreed that the appellant would execute the sale-deed in favour of respondent’s daughter. With reference to the letter Ex.PW-1/8 dated April 18, 2006 written by the respondent to his nephew Tariq Amin (PW-2) the learned Single Judge has held that the same evidences that it was subsequently agreed that the appellant would execute the sale-deed in favour of respondent’s daughter. The learned Single Judge has held that the evidence establishes that the appellant had received Rs.35,00,000/- (Rupees Thirty Five Lacs only) in four tranches : (i) Rs.5,00,000/- (Rupees Five Lacs only) when Ex.P-1 was executed; (ii) Rs.12,00,000/- (Rupees Twelve Lacs only) on April 27, 2006 as per Ex.P-2; (iii) Rs.5,00,000/- (Rupees Five Lacs only) on May 03, 2006 evidenced by the receipt Ex.P-3; and (iv) Rs.13,00,000/- (Rupees Thirteen Lacs only) on May 14, 2006 evidenced by Ex.P-4. The learned Single Judge has further held that the fact that the respondent had in his bank account, evidenced by the statement Ex.PW-1/9A, more than Rs.45,00,000/- (Rupees Forty Five Lacs only), the sum which remained to be paid as of May 15, 2006 being Rs.40,00,000/- (Rupees Forty Lacs only), warranted a finding that the respondent was willing to comply with his obligations and made an attempt to do so evidenced by the fact that his daughter purchased the stamp paper Ex.PW-1/9 in sum of Rs.2,28,000/- (Rupees Two Lacs Twenty Eight Thousand only) for sale-deed to be drawn up on May 11, 2006. Her presence in the office of the Sub- Registrar was proved from Ex.PW-1/10 being the special power of attorney which she executed in favour of Tariq Amin on May 12, 2006 and got registered the same day recording therein that pertaining to sale of the flat, Tariq Amin would be authorized to represent her. 16. On issue No.4 the learned Single Judge has referred to various decisions of the Supreme Court as to when earnest money could be forfeited without proving damages actually suffered. Holding that none were proved to be suffered, the learned Single Judge has opined that notwithstanding that the appellant was in default and the respondent was not, even otherwise the appellant could not forfeit the money received by him under and pursuant to the agreement to sell. 17. Holding that none were proved to be suffered, the learned Single Judge has opined that notwithstanding that the appellant was in default and the respondent was not, even otherwise the appellant could not forfeit the money received by him under and pursuant to the agreement to sell. 17. A critical analysis of the evidence led by the parties would evidence that notwithstanding the appellant not disclosing either in his pleadings or in his deposition as to which property he was intending to purchase at Dehradun, in Ex.P-1, the agreement to sell, which is the foundation of the action as also the defence, has strong traces of the fact that the appellant was negotiating a deal for purchasing a property somewhere outside Delhi and he had to make payment to the seller thereof at said place. This is evident from recital in Ex.P-1 contents whereof we have noted in paragraph 11 above. It stands recorded that Rs.40,00,000/- (Rupees Forty Lacs only) shall be paid by the respondent to the appellant at the destination by 15th May, 2006 and place of the choice of the first party. The first party to the agreement to sell is the appellant. It is apparent that, being a handicapped person, the appellant had wanted payment in sum of Rs.40,00,000/- (Rupees Forty Lacs only) to be tendered to him at a place where he could have in turn handed over the same to the person from whom he was to purchase property – at the destination. The same recital records that on the same day he would be paid Rs.15,00,000/- (Rupees Fifteen Lacs only) in cash at his house. It means that after receiving Rs.15,00,000/- (Rupees Fifteen Lacs only) in his house, the respondent and he were to travel to a place where Rs.40,00,000/- (Rupees Forty Lacs only) would be paid; and we note that journey time from Delhi to Dehradun by road is between 5 hours to 6 hours. 18. This critical aspect appears to have escaped the attention of the learned Single Judge probably for the reason his attention was not drawn thereto. 19. 18. This critical aspect appears to have escaped the attention of the learned Single Judge probably for the reason his attention was not drawn thereto. 19. The effect of this critical feature is that under the agreement to sell, the sale consideration had to be paid in three tranches : (i) Rs.5,00,000/- (Rupees Five Lacs only) when agreement to sell was executed; (ii) Rs.55,00,000/- (Rupees Fifty Five Lacs only) on May 15, 2006 (even this payment had two elements : Rs.40,00,000/- (Rupees Forty Lacs only) to be paid at the destination and place of choice of the appellant and Rs.15,00,000/- (Rupees Fifteen Lacs only) at his house); and (iii) Rs.15,00,000/- (Rupees Fifteen Lacs only) when sale-deed was to be executed. The result of this criticality is that a time schedule, requiring the respondent to pay to the appellant Rs.55,00,000/- (Rupees Fifty Five Lacs only) by May 15, 2006 was fixed by the parties. This was sacrosanct, unless parties novated. Time being of the essence for the sale-deed to be executed has not to be confused with the time schedule under an agreement to sell, if before the execution of the sale-deed a time is stipulated for further payments to be made. The time fixed for further part sale consideration to be paid, is reflective of the intention of the parties that it was of the essence of the contract that by the agreed fixed date a further amount would be paid. 20. It has thus to be held that to comply with his obligations under the agreement to sell Ex.P-1, the respondent had to pay to the appellant a further sum of Rs.55,00,000/- (Rupees Fifty Five Lacs only) on May 15, 2006, which respondent failed to do. 21. Learned Single Judge, with reference to the letter Ex.PW-1/8 dated April 18, 2006, has held that since the parties appear to have been acting unofficiously, notwithstanding there being some inconsistency in so far as the treatment of the balance Rs.40,00,000/- (Rupees Forty Lacs only) is concerned, the Court would be of the opinion that the same evidences the agreement, as alleged by the respondent, that the appellant agreed to sell the flat to the daughter of the respondent. (A finding in paragraph 17 of the impugned decision) 22. In our opinion the finding returned has not been taken forward to the next logical stage. (A finding in paragraph 17 of the impugned decision) 22. In our opinion the finding returned has not been taken forward to the next logical stage. Assuming that the appellant had agreed to execute the sale-deed in the name of respondent’s daughter, and assuming that the contract was orally novated by splitting up the sale consideration into two parts : (i) Rs.40,00,000/- (Rupees Forty Lacs only) for sale of the flat; and (ii) Rs.35,00,000/- (Rupees Thirty Five Lacs only) for sale of the fittings and fixtures therein, it remains a mystery as to why stamp papers in sum of Rs.2,28,000/- (Rupees Two Lacs Twenty Eight Thousand only) were purchased for the reason if the sale-deed was to be drawn up showing sale consideration to be Rs.40,00,000/-(Rupees Forty Lacs only) the stamp duty attracted would be much more. In Delhi stamp duty on sale of immovable property attracted a levy of 8% on the sale price as of the year 2006 and 5% under the Delhi Municipal Corporation Act, 1957, a levy by the Municipal Corporation of Delhi when immovable property was sold. 23. Learned counsel for the respondent fairly conceded during arguments that he could not explain why stamp paper worth Rs.2,28,000/- (Rupees Two Lacs Twenty Eight Thousand only) were purchased. 24. Further, before a sale-deed is executed, its terms have to be discussed and settled between the parties. Nothing of the kind has taken place in the instant case. Further, it may be true that evidenced by Ex.PW-1/9A, the respondents had the mean to pay Rs.45,00,000/- (Rupees Forty Five Lacs only) to the appellant as of May 15, 2006, but there is no evidence that the respondent had drawn out a cheque in sum of Rs.40,00,000/- (Rupees Forty Lacs only) being the balance sale amount payable; and we highlight that the respondent admitted that in May, 2006 he was not in Delhi. 25. Learned counsel for the respondent urged that Tariq Amin was the authorized signatory of the account maintained with ICICI Bank, Friends Colony. But unfortunately said fact has not been proved. 26. We proceed on the basis that Tariq Amin was the authorized signatory of the account in question. 27. 25. Learned counsel for the respondent urged that Tariq Amin was the authorized signatory of the account maintained with ICICI Bank, Friends Colony. But unfortunately said fact has not been proved. 26. We proceed on the basis that Tariq Amin was the authorized signatory of the account in question. 27. Normal course of conduct when immovable property is sold is to receive the full and final sale consideration while simultaneously executing the sale deed by a bankers’ cheque and not a cheque drawn on the account of the buyer. This small but significant fact has been overlooked by the learned Single Judge. 28. A 360° look at the evidence brings out, the usual story which we find in 95 out of 100 cases of specific performance: splitting the sale consideration into what is commonly called as a ‘white’ element and a ‘black’ element. The agreement to sell requires all payments to be made in cash except Rs.15,00,000/- (Rupees Fifteen Lacs only) by means of a bank draft. The agreement to sell requires respondent to pay Rs.40,00,000/- (Rupees Forty Lacs only) at the destination and the place of choice of the appellant and Rs.15,00,000/- (Rupees Fifteen Lacs only) in cash at his house on May 15, 2006. It is apparent that a third party had to be paid a cash amount which had to be to the credit of the appellant. In this view of the terms of the agreement to sell, it is apparent that the white element of the sale agreed to by the parties was Rs.15,00,000/- (Rupees Fifteen Lacs only) to be paid when the sale-deed was to be executed and this explains the conduct of the appellant in being hesitant to receive Rs.9,00,000/- (Rupees Nine Lacs only) by a bankers’ cheque on May 16, 2006 and when comforted by Tariq Amin to keep the cheque pending further discussions, he having received the cheque but having returned the same within two days. This also explains respondent’s conduct of taking back the cheque and having the same cancelled. It is in this context we had noted respondent’s pleading in paragraph 5 of the plaint in paragraph 2 above when he pleads that the demand draft in sum of Rs.9,00,000/- (Rupees Nine Lacs only) was returned by the defendant with ulterior motive. What was that ulterior motive has not been pleaded, much less explained in his evidence by the respondent. What was that ulterior motive has not been pleaded, much less explained in his evidence by the respondent. 29. Under the circumstances it has to be held that having fixed May 16, 2006 as a date by which Rs.60,00,000/- (Rupees Sixty Lacs only) had to flow to the coffers of the appellant from those of the respondent, the respondent was in breach. 30. The respondent would thus not be entitled to a specific performance of Ex.P-1. 31. On the subject of appellant’s right to forfeit Rs.35,00,000/- (Rupees Thirty Five Lacs only), learned counsel for the appellant conceded to the fact that at best the appellant would be entitled to forfeit the earnest money in sum of Rs.5,00,000/- ((Rupees Five Lacs only) which he has received on March 21, 2006 when Ex.P-1 was executed and not further payments in sum of Rs.5,00,000/-, (Rupees Five Lacs only), Rs.12,00,000/- (Rupees Twelve Lacs only) and Rs.13,00,000/- (Rupees Thirteen Lacs only) which were received not by way of earnest money but by way of part sale consideration. Learned senior counsel for the appellant stated that in view of the fact that the appellant did not lead evidence that because of breach by the respondent money paid by him for purchase of a property at Dehradun was forfeited, the appellant would not be entitled to forfeit even the sum of Rs.5,00,000/- (Rupees Five Lacs only) received by him as earnest money more so because there is no evidence that price of the flat had fallen. In fact during arguments, learned senior counsel for the appellant on instructions from the appellant had volunteered to return Rs.35,00,000/- (Rupees Thirty Five Lacs only) received by the appellant together with simple interest at the attractive rate of 15% per annum from May 14, 2006, being the date when Rs.13,00,000/- (Rupees Thirteen Lacs only) further amount was received by her client till date of payment. 32. Thus, we allow the appeal and set aside the impugned judgment and decree dated March 21, 2006. We decree the suit filed by the respondent against the appellant by directing the appellant to pay the respondent Rs.35,00,000/- (Rupees Thirty Five Lacs only) together with simple interest @ 15% per annum reckoned from May 14, 2006 till payment is made. 33. Parties shall bear their own costs all throughout. 34. We decree the suit filed by the respondent against the appellant by directing the appellant to pay the respondent Rs.35,00,000/- (Rupees Thirty Five Lacs only) together with simple interest @ 15% per annum reckoned from May 14, 2006 till payment is made. 33. Parties shall bear their own costs all throughout. 34. Rs.40,00,000/- (Rupees Forty Lacs only) deposited by the respondent in this Court together with accrued interest thereon is directed to be returned by the Registry to the respondent. 35. We further note that laying a challenge to the order dated February10, 2011 passed by a Division Bench of this Court declining stay of the impugned decree pending hearing of the appeal, the appellant had preferred a Petition for Special Leave to Appeal (C) No.13394/2011before the Supreme Court wherein an order was passed that upon appellant depositing a sum of Rs.1,00,00,000/- (Rupees One Crore only)with the Registry of the Supreme Court operation of the impugned decree shall be stayed. The appellant has deposited Rs.1,00,00,000/- (Rupees One Crore only) with the Registry of the Supreme Court. In view of our present decision the appellant would be advised to move an appropriate application before the Supreme Court to receive back said sum.