9911796707
TMI Blog1971 (12) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... buildings, plant and machinery of M/s R.K. Staple Spinning Mill Pvt Ltd. (in liqn.) situated at 185/1, G.T. Road, Ludhiana, are to be inspected on Wednesday the 6th January, 1971, between 11 A.M. and 4 P.M. Offers in sealed covers in triplicate, accompanied with a bank draft of Rs. 10,000 as earnest money drawn in favour of official liquidator attached to the High Court, Delhi, should reach the undersigned on or before 18th January, 1971. For the offers not accepted, earnest money would be refunded within a month. All registration charges and other expenses connected with this sale are to be borne by the successful buyer." In pursuance of the sale the petitioner submitted an offer on the 16th January, 1971, and sent a bank draft for Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for sale. The official liquidator stated that he would have to take steps against the petitioner for recovery of any loss which may be sustained as a result of re-sale. We are now not concerned with the extent to which the petitioner may have to make good the loss, if any, sustained by ultimately selling the property once again. The only question now for consideration is whether the petitioner having defaulted to complete the sale and pay the balance of the purchase offer is the petitioner entitled to refund of Rs. 10,000. It is stated in the said advertisement that the above-said sum of Rs. 10,000 was "earnest money". The advertisement only stated that if the offer was not accepted the earnest money should be refunded within a month. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , after adjusting the said amount of earnest money. The money is liable to be forfeited without proof of loss if the said amount was paid as earnest money. The difficulty of proof will arise only in cases where it is not possible to spell out whether the amount was paid merely by way of advance or as earnest money. In Howe v. Smith [1884] 27 Ch. D. 89 , Lord Bowen explained that "a deposit in the ordinary parlance is a security for the completion of the purchase" Jackson J., in the above Madras decision, explained that a mercantile contract in England does not lead to the inference that money paid in advance is in the absence of words to that effect a deposit by way of security and that the mere description of a sum as advance would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner had asked for an issue concerning jurisdiction also to be framed. The following issues were framed accordingly on August 9, 1971, by Prakash Narain J.: (1)Whether the company court has jurisdiction to decide the question about the claim of the official liquidator to forfeit what was deposited by Nagar Mal Jaipuria along with his offer ? (2)If issue No. 1 is decided in favour of the official liquidator, whether a concluded agreement of sale came into existence with Nagar Mal Jaipuria ? (3)Whether the offer of the applicant stood revoked and the sum of Rs. 10,000 became refundable to him on the expiry of one month from January 18, 1971 ? Issue No. 1 : I do not see how the question of jurisdiction arises. The petitioner is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
