Judgment 1. The plaintiff, who filed the suit for recovery of amount and damages, have projected the instant second Appeal inveighing the judgment and decree dated 21.4.2007 passed by the Additional Subordinate Judge, Salem, in A.S. No. 224 of 2006 wherein and by which the judgment and decree dated 22.8.2006 recorded in O.S. No. 258 of 2004 on the file of the I Additional District Munsif, Salem, were reversed allowing the First Appeal at the instance of the defendant. 2. The case of the plaintiffs is that pursuant to the public notice issued by the defendant auctioning the suit property to an extent of 1220 sq.ft. on 29.12.2003, they offered to purchase the suit property at Rs.702/- sq. ft. thereby valuing the same at Rs.8,56,440/- and they became the successful bidders. It is stated that though they paid a sum of Rs.86,000/- by way of pay order on 29.12.2003 itself, the defendant by letter dated 31.12.2003, stated that there is possibility of increase of bid amount and they also replied for the same suitably. The case of the plaintiffs is that they sent letter dated 27.01.2004 for measuring the suit property and to receive the balance sale price, for which the defendant replied on 29.01.2004 directing them to remit the balance for execution of sale deed besides stating about the forfeiture of the EMD amount paid by them. It is the further case of the plaintiffs that the defendant by letter dated 30.01.2004, also stated that the suit property was sold in As is where is basis. The plaintiffs also stated that the actual property available on the ground is only 910 sq.ft. as per Salem Corporation records and not 1220 sq.ft. as mentioned in the auction notice. In view of the dilatory tactics adopted by the defendant, the plaintiffs requested for refund of the EMD amount along with 12% interest per annum besides issuing a legal notice on 26.3.2004. Despite expressing their readiness and willingness to purchase the property by paying balance consideration, since the defendant had not come forward to execute the sale deed, the plaintiffs filed the suit for recovery of the amount and also claiming damages. The plaintiffs also sought for direction to create charge over the suit property. 3. Resisting the suit, the defendant filed written statement denying all the averments made in the plaint. The plaintiffs also sought for direction to create charge over the suit property. 3. Resisting the suit, the defendant filed written statement denying all the averments made in the plaint. According to the defendant, one of the auction condition is that the EMD will be forfeited if the balance is not paid within 30 days from the date of confirmation of bid and the first plaintiff submitted his tender only after agreeing to abide by the auction conditions. It is stated that the property as a whole alone was proclaimed for sale and that there is no basis for claiming the refund of EMD amount. On these grounds, the defendant sought for dismissal of the suit. 4. Before the trial Court, the first plaintiff examined himself as P.W.1 and marked Exs. A.1 to A.27. To nullify the evidence of the plaintiff, one Radhakrishnan was examined as D.W.1 on the side of the defendant and Exs. B.1 to B.14 were marked. 5. The trial Court / learned I Additional District Munsif, Salem, on consideration of the evidence adduced and the materials available thereon, finding that the defendant is not entitled to forfeit the Earnest Money Deposit, decreed the suit as regards refund. Regarding the claim of damages and creating charge over the suit property, the trial Court dismissed the suit. Challenging the decreeing of the suit regarding refund of the amount, the defendant preferred appeal in A.S. No. 224 of 2006. The Lower Appellate Court, after appreciating the facts, relying on Ex. B.1 agreement, allowed the appeal dismissing the suit. Feeling aggrieved, the plaintiffs have come up with this Appeal. 6. At the time of admission of this appeal, this Court formulated the following substantial questions of law for consideration:- (a) Whether the Lower Appellate Court erred in dismissing the suit only on the basis of Ex.B.1, which is one-sided and unilateral document when no reciprocal right conferred upon the Bidders and the condition, namely, As is where is basis is applicable only to movable property and not for landed property? (b) Whether the Lower Appellate Court failed to consider that the Respondent is estopped from going back in respect of the measurement of the suit property against the principles of Estoppel prescribed under Section 115 of the Evidence Act, 1872? (b) Whether the Lower Appellate Court failed to consider that the Respondent is estopped from going back in respect of the measurement of the suit property against the principles of Estoppel prescribed under Section 115 of the Evidence Act, 1872? (c) Whether the Lower Appellate Court erred in dismissing the suit against the provisions of Sections 10, 14 and 18 of the Indian Contract Act, 1872 since the respondent had categorically misrepresented under Ex. A.1, that the suit property is measuring 1220 square feet and not 910 square feet? 7. Heard Mr. K. Selvaraj, learned counsel appearing for the appellants and Mr. K. Magesh, learned counsel representing the respondent and perused the records. 8. The question that has to be decided in this appeal is whether the appellants / plaintiffs are entitled to recover 10% of the auction amount, ie., Rs.86,000/-, from the respondent Corporation. 9. The fact remains that as per Ex. A.1 auction notice, a tender was submitted by the plaintiffs for purchase of the property mentioned therein at Rs.702/-per sq.ft.. Further, the plaintiffs, as successful bidders in the auction, paid a sum of Rs.86,000/-, being 10% of the sale amount which was arrived at Rs.8,56,440/-, on the date of auction itself, ie., on 29.12.2003. It is pertinent to point out that the date of auction, the plaintiffs being successful bidders, value of the property and payment of 10% of sale price by the plaintiffs are all not disputed by the defendant Corporation. The dispute arose on the extent of the land sold. From the materials available on record, it is seen that though what was intended to be sold was 1220 sq.ft., actually, there is only 910 sq.ft.. Therefore, according to the plaintiffs, there was a breach in the terms of contract by the defendant and hence, they demanded refund of Rs.86,000/-with interest @ 12%. Despite several requests and letters, the defendant / respondent had not responded. However, the defendant intimated finally that they are entitled to forfeit the 10% advance amount paid by the plaintiffs. 10. The contention of the learned counsel for the appellants is that since the extent indicated in A.1 notice is different from what is available on ground, the respondent / defendant cannot forfeit as the breach is on the part of the defendant. 11. 10. The contention of the learned counsel for the appellants is that since the extent indicated in A.1 notice is different from what is available on ground, the respondent / defendant cannot forfeit as the breach is on the part of the defendant. 11. The said contention of the plaintiffs / appellants was assailed by the learned counsel representing the defendant / respondent stating that the plaintiffs agreed to purchase the property on as is where is basis. In this regard, learned counsel representing the respondent / defendant relied on the decision in Shree Hanuman Cotton Mills and others vs. Tata Air Craft Limited [ 1969 (3) SCC 522 ] and more particularly, referred to paragraph 21 of the judgment wherein the Hon'ble Supreme Court while dealing with earnest, enunciated the following principles and the same are extracted hereunder:- From a review of the decisions cited above, the following principles emerge regarding "earnest": (1) It must be given at the moment at which the contract is concluded. (2) It represents a guarantee that the contract will be fulfilled or, in other words, "earnest" is given to bind the contract. (3) It is part of the purchase price when the transaction is carried out. (4) It is forfeited when the transaction falls through by reason of the default or failure of the purchaser. (5) Unless there is anything to the contrary in the terms of the contract, on default committed by the buyer, the seller is entitled to forfeit the earnest. 12. Learned counsel appearing for the appellants relied on the decision of this Court in Chinnasamy Pillai vs. K. Marappan [ 1996 (1) CTC 318 ] which followed the above decision of the Hon'ble Supreme Court and defined Advance Money and 'Earnest Money. 13. At this juncture, it would be worthwhile to refer to the terms and conditions relied on by the defendant as per Ex. B.1 and the relevant clauses are usefully re-produced below:- BY PUBLIC AUCTION: 1) ................. ..................... ................ 2) Every person who wishes to participate in the public auction, shall pay an EMD of Rs.5,000/-in the form of cash/DD/Pay Order being payable to the TIIC Limited, at the place where it is submitted, before being allowed to participate. B.1 and the relevant clauses are usefully re-produced below:- BY PUBLIC AUCTION: 1) ................. ..................... ................ 2) Every person who wishes to participate in the public auction, shall pay an EMD of Rs.5,000/-in the form of cash/DD/Pay Order being payable to the TIIC Limited, at the place where it is submitted, before being allowed to participate. 3) Those who have submitted sealed tender along with 10% of the bid amount can also participate in the public auction and they need not pay further amount for participating in the public auction. II. TERMS OF PAYMENT, DELIVERY ETC.. 1) The highest tenderers / bidder will have to deposit 10% of his tender / bid as advance on the same day of the auction in the form of cash/DD/Pay Order payable to The TIIC Limited at the place where the auction is held. The balance amount is payable as given below: 2) The balance 90% is payable within 30 days from the date of receipt of the confirmation of sale from the Corporation. In case the 10% advance is not paid on the same day, the amounts till then paid will be forfeited. In case after paying the 10% advance, the balance 90% is not paid, then the amounts till then paid will be forfeited. In either of these two circumstances, the Corporation will be at liberty act as per para II (15). 14. A perusal of clause 2 of the terms by public auction would make it clear that every person who wishes to participate, has to deposit a sum of Rs.5000/-as Earnest Money Deposit. Under terms of payment, it is specifically mentioned about 10% of bid as ADVANCE money and 90% is payable within 30 days. Only non-payment of 90% will entitle the respondent to forfeit the amount. But the said agreement is silent about the breach on the part of the Corporation. 15. It is pointed out by the learned counsel appearing for the appellants that as per Ex. A.1, the appellants had offered their tender which is the Auction notice / hand bill. In the said notice, the details of the property sold are specifically mentioned as follows:- Salem Town Ward H Block 37, T.S. No. 80 New D. No. 236 (Old No. 119) Ambalavana Swamy Koil Street, Gugai, Salem 6 in which land 1220 sq.ft. and the building thereon. In the said notice, the details of the property sold are specifically mentioned as follows:- Salem Town Ward H Block 37, T.S. No. 80 New D. No. 236 (Old No. 119) Ambalavana Swamy Koil Street, Gugai, Salem 6 in which land 1220 sq.ft. and the building thereon. According to the appellants, the offer was made only based on Ex. A.1 believing that there was an extent of 1220 sq.ft. whereas actually 910 sq.ft. is only available. 16. Learned counsel for the respondent pointed out that the plaintiffs were allowed to visit the site before the auction and, therefore, they would have known the exact extent of the property. Learned counsel further submitted that the respondent Corporation is entitled to forfeit the security amount in view of Clause II A(1) and (2) of the agreement under Ex.B.1. 17. Mr. Selvaraj, learned counsel for the appellants submitted that the respondent Corporation cannot be allowed to take advantage of its own wrong. The notice under Ex. A.1 misled the appellants in to venturing into the purchase of property which is actually 400 sq.ft. Less than what was advertised. The further contention of the learned counsel for the appellants is that the respondent Corporation ignored the objections raised by the appellants with regard to the non-existence of the 400 sq.ft.. 18. It is pertinent to note that the respondent / defendant have not disputed the shortage of extent. It is pleaded in the written statement that the sale of property is As is where is basis only and the defendant is not responsible for any reduction in extent. It is seen from Exs. A.4, A.5, A.6, A.7, A.8, A.12, A.13, A.16, A.18, A.22, A.25 to 27 that there had been correspondence between the parties in this regard. Further, if the respondent Corporation had relied on the documents furnished by the defaulting company viz., M/s Ravi Prasad Chemicals Enterprises, the plaintiffs cannot be put to jeopardy for no fault of them. 19. The non-payment of 90% of the sale amount entitles the Corporation to forfeit any amount so far paid, would not be available for the respondent. The totality of circumstances when taken into consideration, it would be clear that the appellants were not at fault. They were entitled to withhold the money as there is no answer from the Corporation for reduction in extent. The totality of circumstances when taken into consideration, it would be clear that the appellants were not at fault. They were entitled to withhold the money as there is no answer from the Corporation for reduction in extent. Therefore, the action of the respondent Corporation in forfeiting the amount deposited by the appellant, was wholly arbitrary and unfair. 20. Learned counsel appearing for the appellants placed his reliance on the decision in Haryana Financial Corporation and another vs. Rajesh Gupta [ 2010 (1) SCC 655 ] wherein the Hon'ble Apex Court has observed in paragraphs 22 as follows:- We are also of the opinion that the Division Bench was justified in further concluding that in law the appellants/Corporation undoubtedly has the power to forfeit the earnest money provided there was a failure on the part of the respondent to make the deposit. The Division Bench, however, observed that the respondent was dealing with an instrumentality of state. He was entitled to legitimately proceed on the assumption that the appellants, a Statutory Corporation, an instrumentality of the State, shall act fairly. The respondent could not have suspected that he would be called upon to pay the amount of Rs.50 lakhs without being given even a proper passage to the Unit that he was buying. We are of considered opinion that the respondent had deposited the sum of Rs.2.5 lakhs on the clear understanding that there would be an independent approach road to the Unit. This is understandable. Without any independent passage the plot of land would be not more than an agricultural plot, not suitable for development as a manufacturing unit. We therefore don’t find any substance in the submission made by the learned counsel for the appellants/Corporation. Further, in paragraph 29 of the judgment, it has been held as under:- In any event, the facts of this case as narrated above would clearly indicate that the respondent had made all necessary inquiries. It was the appellants/Corporation that failed to perform its obligations in giving a fair description of the property offered for sale. 21. As pointed out by the Hon'ble Supreme Court in the above decision, the appellants could not have doubted the Corporation who is a wing of the State, that it would act not fairly. 22. In view of the above discussions, this Court is of the considered view that the Lower Appellate Court did not consider Ex. 21. As pointed out by the Hon'ble Supreme Court in the above decision, the appellants could not have doubted the Corporation who is a wing of the State, that it would act not fairly. 22. In view of the above discussions, this Court is of the considered view that the Lower Appellate Court did not consider Ex. A.1 and was carried away by Ex. B.1 treating the same to be an agreement whereas it is only terms and conditions. The Lower Appellate Court also failed to consider that forfeiture would arise only when there is a breach on the part of the appellants. In this case, the breach is on the part of the respondent / defendant. Further, when the appellants are not responsible for the breach of contract, the respondent has no right to forfeit the Earnest Money Deposit or advance amount. 23. No doubt, one cannot say that the trial Judge can always be treated as infallible in determining the demeanour of the parties. The Court of first instance can go wrong on a question of fact in estimating the value of oral testimony of parties. The Lower Appellate Court, being the final Court of facts, ought to have considered the evidence as a whole to see any element of improbability arising from proved circumstances. 24. On a conspectus of entire facts and circumstances of the case and on taking note of oral and documentary evidence adduced by the witnesses on either side and also, in the light of the detailed qualitative and quantitative discussion mentioned supra, this Court comes to an inevitable conclusion that the Lower Appellate Court, being a final Court of fact, dismissed the suit without considering the reasons given by the trial Court regarding the failure on the part of the defendant to abide by the terms and conditions thereby leading to perverse finding. 25. Though under Section 100 CPC, this Court cannot re-appreciate the evidence, in view of the facts and circumstances of the case, this Court is inclined to hold that the preponderance of probabilities are in favour of the plaintiffs and the questions of law raised are answered materially and substantially in favour of the plaintiff. As such, the dismissal of the suit by the Lower Appellate Court, is to be held as not based on correct reasoning and any pleadings. As such, the dismissal of the suit by the Lower Appellate Court, is to be held as not based on correct reasoning and any pleadings. In the light of the foregoing discussion, the Second Appeal succeeds and stands allowed and the judgment and decree of the trial Court dated 22.8.2006 passed in O.S. No. 258 of 2004 are restored decreeing the suit in favour of the plaintiff. Consequently, the judgment and decree passed by the Lower Appellate Court are set aside. However, in the circumstances of the case, there shall be no order as to costs.