T. Ramaprasada Rao, C.J.
1. The unsuccessful second defendant in O.S. No. 112 of 1972 on the file of the Subordinate Judge. Udumalpat. who could not get relief in this Court in Appeal No. 526 of 1973, is the appellant. The plaintiff entered into a agreement of sale with the defendants under Ex. B-2. A sum of Rs. 10,000/- was paid as advance to the defendants by the plaintiff. Inter alia there were other terms under which the plaintiff should purchase the property from the defendants. On the foot that the defendants committed breach of contract, the plaintiff filed the suit for the recovery of the sum of Rs. 10,000 together with interest from the date of payment. This was resisted by the defendants on the ground that they did not commit breach and that under the terms of the agreement the sum of Rs. 10,000/- was forfeitable. The defence was:
'If the defendants commit default the plaintiff's only remedy was to file a suit for specific performance. In other words. he is not entitled to refund of Rupees 10,000/-.
The trial Court found that it was the plaintiff who committed the breach of contract and that the plaintiff could only file a suit for specific performance and, therefore, would not get back the sum of Rs. 10,000/-. In the course of trial, the parties have examined themselves and the defendants spoke through three witnesses. It is common ground that the defendants did not let in any evidence at the time of trial as to the nature of damage and the quantum of damage suffered by them after the agreement of sale was entered into. Obviously. the defence as well as the trial proceeded on the basis that plaintiff's only remedy was to file a suit for specific performance and not ask for a return of the sum of Rs. 10,000/- paid as advance under the contract of sale. The result was that there was no pleading about the nature or quantum of damage suffered by the defendants by reason of the breach said to have been committed then by the plaintiff and the defendants did not let in any oral evidence as well to show that they did suffer actual damage as a result thereof. It was also the contention of the defendants that they were throughout in possession of the property notwithstanding the agreement of sale, though, in the course of trial, it was found that at some time the defendants parted with possession of the land which was a barren land to the plaintiff. We are, however, concerned at this stage with the above facts and particularly the two important features which loom large in this case, namely, that there was no pleading as to the nature and quantum of damage suffered by the defendants, there was no proof regarding the same and that the express defence of the defendants was that they were in possession and they did not part with the possession of the land agreed to be sold to the plaintiff. As already stated, the learned Subordinate Judge dismissed the suit. On appeal, Sethuraman, J., agreed with the trial Court that it was the plaintiff who committed default. But he, however, considered in detail the question whether the plaintiff can have no relief at all in the absence of any proof of damage by the defendants and whether the defendants could unjustly enrich themselves by forfeiting the sum of Rs. 10,000/- paid expressly as advance under Ex.B-2. The learned Judge referred to the relevant decisions and particularly to the decision of the Supreme Court reported in Fateh Chand v. Balakrishna Dass : 1SCR515 which laid down that in assessing damage the Court has, subject to the limit of the penalty stipulate, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case. The learned Judge also noticed that an undertaking to pay a sum of money or to forfeit a sum of money fixed in terrorem without reference to any estimated damages on breach of the contract is in the nature of penalty and that the party claiming compensation must prove the loss suffered by him. In the light of such decisions, the learned Judge said that in the absence of pleading, proof and an issue on the nature and quantum of damage suffered by the defendants, the plaintiff would be entitled to the return of the sum of Rs. 10,000/- with interest as claimed. It is as against this, the present letters Patent appeal has been filed.
2. Mr. Palaniswami strenuously contended that as the amount is in the nature of earnest money, it could be forfeited notwithstanding the absence of proof of damage. Reliance was placed upon a decision of our High Court in Natesa Aiyar v. Appavu Padayachi ILR (1915) Mad 78: AIR1915 Mad 896. Apart from the fact that we have our own doubts whether, in the light of the later pronouncements of the Supreme Court, the ratio of the above decision would still be applicable to the facts of this stage that the parties expressly stipulated that what was paid under Ex.B-2 was not earnest money but advance. It is reasonable also to characterise this amount as advance since it bears a very great proportion to the totality of the consideration as well. Generally earnest money forms a small proportion or ratio to the consideration which is agreed to be the consideration to be passed by one to the other under a contract of sale. Having regard to the fact that the amount of Rs. 10,000/- was paid, treated and nomenclatures as advance under Ex.B-2, we are unable to agree with Mr. Palaniswami that the amount paid should be treated automatically as earnest money. Again in the absence of pleading that the defendants have suffered damage to the tune of Rs. 10,000/- the plea that the entire amount paid by the plaintiff cannot be demanded and the defendants are not under an obligation to refund it is an extreme contention. We searched in vain for proof of any such sufferance of damage and in fact Mr. Palaniswami was called upon to refer to such a plea or a statement in the witness box by the witnesses examined on the side of the defendants. He was unable to refer to any specific statement by the defendants or by the witness examined on their side. It was in those circumstances that Sethuraman. J., said that without reference to any actual damage, the amount referred to in the agreement cannot be forfeited, because it would be in the nature of penalty. Proof of actual damage is a sine qua non to seek damage. The Supreme Court noticed the inequity in a case where an automatic forfeiture is sought for by a defendant and their conclusion is based upon the principle that nobody can unjustly enrich himself. It was open to the defendants to have pleaded that way and not only pleaded in that way which they have to in law, but also substantiated the same by acceptable evidence. We have referred to the written Statement in which the defendant's case was that the only remedy of the plaintiff was to file a suit for specific performance and they are not entitled to refund the sum of Rs. 10,000/-. It is in the same perspective that the oral evidence also was let in and there was no express or implied reference to any sufferance of damage by the defendants. It was in these circumstances that Sethuraman, J., rightly held that it was necessary for the party not in breach to prove the actual amount of damages suffered so that to that extent the amount already paid may be allowed to be retained. In the absence of any proof or, as we said, even on allegation in the pleading of such damage, it appears that the learned Judge is right in his conclusion.
3. The appeal is dismissed.
4. Appeal dismissed.