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Several sources clarify that earnest money is paid at the time of agreement to show commitment (e.g., sources ["2024 0 Supreme(P&H) 187"], ["2025 0 Supreme(Ker) 2317"], ["2023 0 Supreme(P&H) 2121"]), while advance amounts may be paid as part of the sale consideration or as a separate advance to facilitate the sale (e.g., sources ["2025 0 Supreme(Kar) 1405"], ["2022 0 Supreme(P&H) 1926"]).
Legal Implications and Forfeiture
If the buyer breaches the contract, the seller can claim forfeiture of earnest or advance money, but only if the agreement explicitly provides for it and the breach is attributable to the buyer (sources ["2024 0 Supreme(P&H) 187"], ["2025 0 Supreme(Ker) 2317"], ["2025 Supreme(Online)(Chh) 10662"]).
Main Points and Insights
Some cases highlight that amounts paid as advance sale consideration are not necessarily earnest money, and their forfeiture depends on specific contractual clauses (sources ["2024 0 Supreme(Telangana) 200"], ["2023 0 Supreme(P&H) 2121"]).
References
In real estate transactions, agreements to sell often involve payments like earnest money or advances. But what happens when a buyer seeks specific performance of the contract? A common question arises: In case of specific performance of contract, whether earnest money can be written without seeking any relief about it? This typically means, can the plaintiff pursue specific enforcement without addressing the earnest money paid, or must they claim relief regarding it?
This blog post dives into the nuances, distinguishing earnest money from advances, examining court approaches in specific performance suits, and integrating key judicial insights. While courts generally focus on enforcing contracts as per terms, the treatment of earnest money depends on contract language, breach circumstances, and pleadings. Note: This is general information, not legal advice—consult a lawyer for your case.
Understanding the distinction is crucial, as it impacts forfeiture, refund, and specific performance claims.
Advance serves as part payment, typically larger and refundable unless specified 2021 0 Supreme(Guj) 705 2019 0 Supreme(Del) 290.
Forfeiture:
Advance is refundable unless the contract allows forfeiture; buyers may recover it even in breach if treated as purchase price 2021 0 Supreme(Guj) 705 2019 0 Supreme(Del) 290.
Legal Treatment:
In Videocon Properties Ltd. v. Bhalchandra Laboratories, the Supreme Court held that the intention of parties and circumstances determine if a payment is earnest money or advance
Sunil Jain VS Vishal Ram Sahu - Chhattisgarh (2018)
. Similarly, Satish Batra clarified earnest money's forfeitable nature versus recoverable advances 2019 0 Supreme(Del) 290.Specific performance under the Specific Relief Act, 1963, enforces contracts where damages are inadequate, common in property sales. But earnest money complicates matters.
Courts may adjust or refund earnest money even if not explicitly pleaded, per Section 22, allowing plaint amendments for refunds 2019 0 Supreme(Del) 1042. However, sellers cannot forfeit without proving loss, as in Fateh Chand v. Balkishan Dass and Kailash Nath Associates v. Delhi Development Authority2019 0 Supreme(Del) 1042.
Typically, no—plaintiffs must address it, but courts can grant alternative relief. In one case, the plaintiff's suit for specific performance was partly decreed with refund of earnest money along with interest, despite forgery claims. Direct evidence proved execution, outweighing forgery allegations 2023 0 Supreme(P&H) 1214. The court noted: The plaintiff’s suit for the grant of decree of possession by way of specific performance of the agreement to sell has.... and ordered refund.
In another, a huge payment (Rs. 1,49,06,894) under an agreement was not treated as earnest money despite labeling. Forfeiture was limited to Rs. 10 lakhs; the rest refunded with interest, as full forfeiture requires unprovable damages under Section 74, Contract Act 2019 0 Supreme(Del) 616. The court stated: Earnest money is paid or given at the time when the contract is entered into and as a pledge for its due performance and therefore merely because a huge amount is called as earnest money, it will not become so and would be the advance payment under the Agreement to Sell.
Further, where no forfeiture clause existed and earnest money was part of advance price, the seller could not retain it without proving loss: Before concluding, it is noted that not only there is no clause in the subject Agreement to Sell that the advance price and/or earnest money can be forfeited by the seller for a breach by the buyer... The court mandated refund of Rs. 15,00,000 2019 0 Supreme(Del) 1042.
In recovery suits post-breach, if payments aren't labeled earnest (e.g., 'Advance Receipt-cum-Agreement'), defenses fail without triable issues 2019 0 Supreme(Del) 110. Another case rejected forfeiture where the defendant failed NOC conditions: The Defendant has raised a further issue as to the nature of the amount received by it. The agreement to sell itself describes the amount as advance/earnest money—but plaintiff won refund 2018 0 Supreme(Del) 2976.
In specific performance suits, earnest money cannot simply be 'written off' without consideration—courts scrutinize its nature, contract terms, and losses. While earnest money signals commitment and faces forfeiture risk, advances offer more protection. Parties should explicitly define terms to avoid disputes.
Key Takeaways:- Distinguish earnest money (forfeitable security) from advances (part payment) 2021 0 Supreme(Guj) 705 1973 0 Supreme(Ker) 108.- In suits, plead relief re: earnest money; courts may order refunds sans proof of loss 2019 0 Supreme(Del) 1042.- Huge sums labeled 'earnest' may be treated as advances 2019 0 Supreme(Del) 616.- Consult counsel for drafting; comply with laws like Specific Relief Act.
Disclaimer: This post provides general insights based on case law. Laws vary; seek professional advice for your situation.
References: 2021 0 Supreme(Guj) 705 1973 0 Supreme(Ker) 108 1992 0 Supreme(J&K) 53
Sunil Jain VS Vishal Ram Sahu - Chhattisgarh (2018)
2019 0 Supreme(Del) 290 2023 0 Supreme(P&H) 1214 2019 0 Supreme(Del) 616 2019 0 Supreme(Del) 1042 2019 0 Supreme(Del) 110 2018 0 Supreme(Del) 2976 #EarnestMoney #SpecificPerformance #ContractLaw
money could not have been forfeited while relying upon clause (3) of the agreement to sell in question. ... It was further pleaded that a sum of Rs.30,01,000/- was paid as earnest money/advance money followed by part payments made on different dates with the following details:- “a) Rs.30,01000/- (Thirty Lakhs One thousand) on 11.04.2012 b) Rs.70,00000 (Seventy Lakhs .......
of the advance price and/or earnest money paid is to allow a defendant/seller to take up a defence as to why the advance price and/or earnest money should not be repaid. ... loss suffered by the defendant/seller, the advance price and/or earnest money paid under the agreement to sell has to be forfe....
Consequently, learned trial Court while declining relief of decree for possession by way of specific performance of agreement to sell in question dated 30.06.2006, passed money decree of double amount of the earnest amount of the earnest money against defendant. ... to sell dated 30.06.2006, but passing money decree ....
earnest deposit amount. ... Whether the plaintiff proves that she has paid Rs.35,000/- to the defendant towards earnest money apart from the amount shown in the sale agreement entered into between her and the defendant? 2. ... /- as advance sale consideration amount. ... paid towards earnest money from defendant No.1....
He further submits that transfer of the consideration i.e earnest money has not been proved as the scribe has stated that the amount was not paid in his presence whereas the plaintiff has claimed that the amount was paid on the same day in the presence of the scribe. ... The plaintiff’s suit for the grant of decree of possession by way of specific performance of the agreement to sell has....
The words used in Ext.A1 is that Rs.300000/- received by the defendants on the date of execution of the agreement is earnest money. The further amount of Rs.700000/- received on 16.12.2008 was also stated to be part of earnest money. ... However, in the original agreement, the amount to be forfeited by both sides was shown as Rs.3,00,000/-. During the ....
The total amount of sale consideration was Rs.16.60 lacs per acre, out of which, Rs.14 lacs were paid as an earnest money and 15.06.2006 was the last date for the execution of the sale deed. ... The execution of the agreement in question besides the receipt of earnest money were admitted, however, it was submitted that the appellants-plaintiffs since were not ready to perform their part ....
Even as per the evidence of DW1, the amount of Rs.4,00,000/-paid by the plaintiff company to defendant was towards advance sale consideration but not towards earnest money. ... While receiving the advance sale consideration, the defendant executed an agreement of sale in favour of the plaintiff on the same day agreeing to sell the plaint schedule property for a consider....
Trial Court vide judgment and decree dated 30.10.2014 recorded a finding in favour of appellant-plaintiff as regards the execution of agreement to sell dated 04.01.2006 along with payment of Rs.30 lakhs as earnest money. ... Learned counsel for the appellant submits that once the agreement to sell dated 04.01.2006 as well as the payment of earnest #HL_....
Sudhir Rawal reported in 2013 (1) SCC 345 : (2012 AIR SCW 5869) Hon'ble Supreme Court held in para 15 that to justify the forfeiture of advance money being part of 'earnest money' the terms of the contract should be clear and explicit and that part payment of purchase price cannot be forfeited unless ... The non - performance of the agreement is entirely attributable to the defendant whereas the plaintiff....
In Sushil Sehgal (supra), in para 8 and 9, this Court has held as under:- “8. Earnest money is paid or given at the time when the contract is entered into and as a pledge for its due performance and therefore merely because a huge amount is called as earnest money, it will not become so and would be the advance payment under the Agreement to Sell. In the present case, the nature of contract is such that losses could have been proved by the defendants by proving the falling of....
Before concluding, it is noted that not only there is no clause in the subject Agreement to Sell that the advance price and/or earnest money can be forfeited by the seller for a breach by the buyer, and also that, in fact, the expression 'earnest money' is used in the Agreement to Sell as part of advance price which is paid. Also, no evidence has been led by the appellant/defendant no. 1, by himself deposing as to how any monetary loss was suffered by him on account of the br....
I may in this context also mention that in the agreements to sell, which are identical in nature in the two suits, and are titled ‘Advance Receipt-cum-Agreement to Sell & Purchase’, the amount paid is not even described as ‘earnest money’. The relevant clauses of the agreement to sell in each of the case and in which the plaintiff is described as ‘Second Party’ and defendant in each suit as ‘First Party’, are as under : “6. That the total sale consideration of the above said ....
The Defendant has raised a further issue as to the nature of the amount received by it. The agreement to sell itself describes the amount as advance/earnest money.
9. Difference between 'advance amount' and the 'earnest money' has been considered by the Supreme Court in number of cases. In Shree Hanuman Cotton Mills v. Tata AirCraft Ltd (1969) 3 SCC 522, the Supreme Court laid down certain principles to determine as to when the amount paid as 'advance' be treated as 'earnest money' and the seller is entitled to forfeit the same. Para 21 of the judgment is reproduced hereunder. "21.
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