Balakrishna Ayyar, J.
1. The pltf. is the petnr. before me. He engaged the defts, to carry a certain quantity of tiles for him from Beypore to Marmagoa & paid them what was called an ' advance ' of Rs. 100 (RS. one hundred only). The Ct. below has found that the pltf. wa9 not ready with the tiles & that after waiting a reasonable time the defts. went away with their boats. It also found that the defts, were entitled to appropriate the advance towards the expense they had incurred in waiting from 27-10-47 to 2-11-1947 for the tiles.
2. Mr. Nambisan, the learned advocate for the petnr., contended that the view of the Ct. below was wrong & cites in support of his argument the decision of the Privy Council in Muralidhar Chatterji v. International Film, Co., Ltd. , Whether that decision would apply or not would depend upon the question whether the payment of Rs. 100 (RS. one hundred only) in this case was earnest money or only payment on account. If it was really only payment on account the Calcutta case would apply & the pltf. would be entitled to a return of the money, the defts. being relegated to a suit for damages. If, on the other hand, the payment is regarded as earnest money or as a deposit the defts. would be entitled to forfeit it as explained in Natesa Aiyar v..Appavu Padayachi, 38 Mad. 178 : A. I. R. 1915 Mad. 896 because it is an implied term of such a payment that the deposit would be forfeited it the depositor made default.Regard being had to ordinary usage I feel inclined to hold that the payment in this casewas really a deposit or earnest money A therefore, was liable to be forfeited. The civil revision petn. fails & is dismissed with coats.