2008 PLP 39 (YLR)

MAULVI ANWARUL HAQ, J.

On 19-7-2006 the respondent filed a suit against the petitioners for cancellation of an agreement to sell and also for recovery of Rs.45,00,000 having been paid as earnest money thereunder. According to the plaint, there had been a concealment of facts vis-a-vis location of the property. The petitioners while admitting the receipt of the said amount and denying that they had been guilty of any concealment of facts while entering into the said agreement, came out with the plea that the amount of earnest money stands forfeited under the terms of the agreement as the respondent had failed to perform his part of the contract.

2. In the said suit, in the first instance, an application was filed under Order XXXIX, Rules 1 and 2, C.P.C. restraining the petitioners from alienating the said property. This was dismissed on 21-12-2006. On 9-9-2006 they filed an application under Order XXXVIII; Rule 5, C.P.C. for attachment before judgment of the same property. Pursuant to this application vide order dated 14-2-2007 the learned trial Court directed the petitioners to furnish a security in the sum of Rs.45,00,000.

3. Learned counsel for the petitioners contends that in the absence of a finding that the petitioners are going to dispose of their property and further of the existence of prima facie case, the impugned order could not have been passed. Learned counsel for the respondent has supported the impugned order.

4. I have gone through the copies of the records. The receipt of the said amount from the respondent is admitted by the petitioners. Admittedly, the house has not been transferred to the respondent. They are claiming that the amount stands forfeited because of some condition in the agreement. Even if such a condition is there then the same being penal in nature would not be enforcible and the damages for breach of contract will have to be determined in accordance with the provisions of the Contract Act, 1872. In fact, the petitioners have themselves stated some grounds in their written statement of their having to suffer a loss as a result of non-performance of the said agreement by the respondent. All these matters have to be decided in the suit and as such I do find al prima facie case in favour of the respondent. So far as the matter of disposal is concerned, on both occasions the application had been contested for stopping alienation of the said property.

5. However, I find that the amount of security has not been properly fixed after examining the pleadings on record. The civil revision accordingly is partly allowed inasmuch as the petitioners will now furnish a security as directed by the learned trial Court in the sum of Rs.25,00,

000. No orders as to costs.

6. A copy of this judgment be remitted to the learned trial Court by' the office immediately: H.B.T./M-483/L Order accordingly.