Chattisgarh High Court

Kundan Lal Patel vs Subrat Bi And Ors on 10 October, 2022

                                                                  Page 1 of 17

                                                                         AFR
              HIGH COURT OF CHHATTISGARH, BILASPUR

                              FA No. 29 of 2014

                      Judgment Reserved On : 01.07.2022

                   Judgement Delivered On : 10.10.2022

  Kundan Lal Patel, Aged about 65 Years, S/o. Late Yadu Lal Patel, R/o.
  Village Pandhi, Tahsil Masturi, Civil and Revenue Distt. Bilaspur (CG)

                                                      --- Appellant/ Plaintiff

                                   Versus

1. Subrat Bi, aged about 40 years, W/o. Late Karamat Khan,

2. Ku. Murad Bi, Aged about 14 years, D/o. Late Karamat Khan,

3. Murtaja Khan, aged about 10 years, S/o. Late Karamat Khan,

4. Ku. Jumratin Bi, aged about 8 years, D/o. Late Karamat Khan,
   No. 2 to 4 minor through their natural guardian mother Smt. Subrat Bi,
   aged about 40 years, W/o. Late Karamat Khan, All R/o. Village Pandhi,
   Tahsil Masturi, Civil and Revenue District Bilaspur (CG)

5. Gokul, aged about 45 years, S/o. Chenu Kewat,

6. Mohan, aged about 40 years, S/o. Chenu Kewat

7. Chhannu, aged about 24 years, S/o. Chenu Kewat
   No. 5 to 7 R/o. Village Pandhi, Tahsil Masturi, Civil and Revenue Distt.
   Bilaspur (CG)

8. State of Chhattisgarh Through the Collector, Bilaspur

                                              --- Defendants/Respondents

________________________________________________________

For the Appellant : Mr. Ravindra Agrawal, Advocate.

For the Respondents No. 1 to 7 : Mr. Aman Sharma, Advocate

For the State/Respondent No.8 : Mr. Anil Tripathi, PL

________________________________________________________

Hon'ble Shri Justice Narendra Kumar Vyas CAV JUDGMENT

1. This is plaintiff's first appeal against the judgment and decree

dated 16.12.2013 passed by learned 3 rd Additional District Judge

of First Additional District Judge, Bilaspur, in Civil Suit No.

14-A/2012, by which the plaintiff suit for specific performance of

contract dated 31.12.2019 has been dismissed and also prayer for

declaring the sale deed dated 28.02.2011 executed in favour of

defendant no. 5 to 7 to be declared as null and void has been

rejected.

2. Brief facts reflected from the plaint are that the land bearing

khasra no. 222/02 area .96 acres situated at village Pandhi P.H.

No. 18, Revenue Circle Seepat, Tahsil Masturi, District Bilaspur is

recorded in the name of defendant no. 1 to 4 (which in subsequent

paragraph will be referred to as suit property). It has been

contended that the suit property was inherited by defendants No.

1 to 4 from their ancestral Karamat Khan and they have full legal

right to transfer the said property. It has been further contended

that defendant No.1 for her family expenditure and for herself and

her wards defendants No. 2 to 4, has executed an agreement on

31.12.2019 for sale of the property @ 5000 per dismal and after

execution of the sale deed the property was handed over to the

plaintiff. On the date of execution of agreement on 31.12.2009 an

advance amount of Rs. 1,00,000/- was given to the defendants

No. 1 to 4. It was specifically mentioned in the terms of the

agreement that defendant No. 1 will conduct demarcation in

presence of the plaintiff and whatever area of the suit property is

physically available after demarcation the sale deed will be

executed for that part of property only and the sale consideration

will be given accordingly. But the defendant has not done the

demarcation.

3. It has been further contended that in the agreement it has been

specifically mentioned that the sale deed will be executed up to

28.02.2010 but in absence of demarcation the sale deed till that

date could not be executed despite persuasion made by the

plaintiff to defendant No. 1 for execution of sale deed. The plaintiff

was ready and willing to perform his part of contract on

28.02.2010 and even thereafter also till today, the amount of sale

consideration is kept reserved by him for execution of sale deed

which is still lying with the plaintiff. The defendant No.1 has sent

legal notice on 01.03.2011. From bare perusal of the said notice, it

is reflected that defendant no. 1 is not willing to perform his part of

contract. The defendant No.1 has not declared the agreement

dated 31.12.2009 as null and void still she has executed sale

deed in favour of defendants No. 5 to 7 on 28.02.2011. On above

factual matrix, the plaintiff has filed the present suit for declaring

the sale deed dated 28.02.2011 executed between defendant no.1

and defendant No. 5 to 7 to be declared as null and void and also

prayed for execution of sale deed in pursuance of agreement

dated 31.12.2009 executed between the plaintiff and the

defendants No. 1 to 4. It has also been prayed that in case

defendant no. 1 to 4 failed to perform their part of contract then it

may be executed by the intervention of this Court.

4. Defendant No. 1 to 4 have filed their written statement denying the

allegation made therein. It has been specifically pleaded in the

written statement that the demarcation of the suit property was

very much clear and the plaintiff was never ready for

measurement of suit property and even he was not ready to

execute the sale deed despite persuasion made by defendants

No. 1 to 4. It has been specifically admitted by defendants No. 1 to

4 that on the date of agreement i.e. 31.12.2009 she has received

Rs. 1,00,000/- as advance but the plaintiff has not made any

attempt to execute the agreement, therefore, on the basis of

plaintiff disinterest to execute agreement the same has been

cancelled. It has been further submitted that since the plaintiff has

not shown their willingness to execute the agreement the

defendants No. 1 to 4 have executed agreement with defendants

No. 5 to 7 and the possession has already been given to them and

would pray for dismissal of the suit.

5. The defendant no. 5 to 7 have filed their written statement denying

the allegation made in the plaint and have pleaded that plaintiff

has failed to perform his part of contract, therefore, the agreement

has already been cancelled and the defendant no.1 has duly

intimated to the plaintiff about cancellation of agreement and after

one year the sale deed has been executed in his favour and since

they are in possession of the suit property. On the above factual

matrix, the defendants have prayed for dismissal of the suit.

6. On the pleadings of the parties, learned trial Court has framed as

many as four issues.

(i) Whether the sale deed executed on 28.02.2011 of the suit property is void and illegal .?

(ii) Whether agreement dated 31.12.2009 is valid and what is its effect. ?

(iii) Whether plaintiff was ready and willing to perform his part of contract. If yes then what is its effect.?

(iv) Relief and cost.?

7. The plaintiff to substantiate his stand has exhibited document

agreement dated 31.12.2009 Ex.P-1, Notice dated 01.03.2011

(Ex.P-2), Sale deed dated 28.02.2011 (Ex.P-3) and examined

plaintiff himself as PW-1 and Panchram Verma (PW-2).

8. The defendant No. 1 to 4 have examined Subraatbee (DW-), and

Meghnath Kenwat (DW-2).

9. The plaintiff witness Kundal Lal Patel (PW-1) in his examination in

chief by way of affidavit as provided under Order 18 Rule 4 CPC

has reiterated the averments made in the plaint. The witness was

cross-examined by defendant no. 1 to 4 wherein he has admitted

that he could not execute the sale deed on the date mentioned in

the agreement i.e. on 28.02.2010 still he has not given any

notice. He has also admitted that he has not given any notice to

Subraatbee for execution of agreement. He has also admitted that

notice given by the Subraatbee through his counsel has been

received by him which is exhibited as Ex.P-2. He has also

admitted that with regard to sale of suit property he has received

information within 2-4 days from the date of sale deed. But he has

not given any notice to Defendant No.1

10. Panchram Verma (PW-2) in his examination-in-chief by way of

affidavit as provided under Order 18 Rule 4 CPC has supported

the case of the plaintiff. The witness was cross-examined and

nothing has been brought on the record in the cross-examination.

11.Subraatbee (DW-1) in her examination-in-chief by way of affidavit

as provided under Order 18 Rule 4 CPC has reiterated the

averments made in the written statement. The witness was cross-

examined by the plaintiff and in the cross examination she has

voluntary said that Kundan has refused to purchase the property,

therefore, she has sold the property to defendant No. 5 to 7. The

other witness Meghnath Kenwat was examined by defendant No.1

to 4 and he has supported the case of defendants No.1 to 4 and

he was cross-examined by the plaintiff wherein he has stated that

at the time of preparation of affidavit, he has told to the counsel

that he alongwith Subraatbee has gone to Kundal Lal house for

execution but he has refused to execute the sale deed. He has

again denied that Kundan Lal has not refused to execute the sale

deed.

12. The defendant No. 5 to 7 have not examined any witness in their

support.

13. Learned trial Court after appreciating the evidence, material on

record has dismissed the suit. Learned trial Court while dismissing

the suit has recorded its finding that between 31.12.2009 to

28.02.2010 i.e. the time period given in the agreement, the plaintiff

has not contacted the defendant No.1 for execution of agreement,

he has not given any notice and there is no time period for

extension of period in the agreement also, therefore, time is the

essence of the agreement and the plaintiff is also unable to plead

and prove that he is ready and willing to perform his part of

contract. The finding recorded by the learned trial Court with

regard to issue No. 4 whether plaintiff is ready and willing to

perform his part of contract is legal, justified and in accordance

with the provision of section 16(C) of the Specific Performance Act

which is reproduced below for ready reference:-

Section 16(C) of the Specific Performance Act

Section 16 of the Specific Relief Act, 1963, as it stood at the material time (prior to amendment with effect from 1.10.2018), inter alia, provides:- Personal bars to relief.

--Specific performance of a contract cannot be enforced in favour of a person-- (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation. --For the purposes of clause (c), -- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."

14. The finding recorded by the learned trial Court with regard to

willingness and readiness of the plaintiff to perform is his part of

contract is in accordance with Section 16(C) of the Specific Relief

Act, 1963 as this Section bars the relief of specific performance of

a contract in favour of a person, who fails to aver and prove his

readiness and willingness to perform his part of contract. In view

of Explanation (i) to clause (c) of Section 16, it may not be

essential for the plaintiff to actually tender money to the defendant

or to deposit money in Court, except when so directed by the

Court, to prove readiness and willingness to perform the essential

terms of a contract, which involves payment of money. However,

explanation (ii) says the plaintiff must aver performance or

readiness and willingness to perform the contract according to its

true construction.

15. From bare perusal of Section 16(C) of the Act, to aver and prove

readiness and willingness to perform an obligation to pay money,

in terms of a contract, the plaintiff would have to make specific

statement in the plaint and adduce evidence to show availability of

funds to make payment in terms of the contract in time. In other

words, the plaintiff would have to plead that the plaintiff had

sufficient funds or was in a position to raise funds in time to

discharge his obligation under the contract. If the plaintiff does not

have sufficient funds with him to discharge his obligations in terms

of a contract, which requires payment of money, the plaintiff would

have to specifically plead how the funds would be available to him.

To cite an example, the plaintiff may aver and prove, by adducing

evidence, an arrangement with a financier for disbursement of

adequate funds for timely compliance with the terms and

conditions of a contract involving payment of money. In the

present case, neither any such pleading was made nor evidence

was adduced by the plaintiff even he has admitted that during the

time period of the execution of sale deed he has not made any

attempt to get the sale deed executed in his favour. Thus there is

no readiness or willing on the part of the plaintiff to perform his

part of contract.

16. The Hon'ble Supreme Court in the case of U.N.

Krishnamurthy(Since Deceased) Thr. Lrs vs. A. M.

Krishnamurthy in Civil Appeal No. 4703 of 2022 decided on

12.07.2022 has held in paragraphs 26 to 31 as under:-

26. In Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512 this Court held that:

"40. .....A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the con- tract which are to be performed by him (other than the terms the performance of which has been pre- vented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to per-

form the essential terms of contract which are re- quired to be performed by him (other than the terms the performance of which has been pre-

vented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a considera- tion of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and reg-

istration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific perfor- mance, even if he proves breach by the defen-

dant, as he was not "ready and willing" to perform his obligations."

27.Pt. Prem Raj v. D.L. F. Housing and Construction (Pvt) Ltd. And Anr AIR 1968 SC 1355 cited by Mr. Venugopal, this Court speaking 1 (2010) 10 SCC 512 2 AIR 1968 SC 1355 through Ra- maswamy J. held that "it is well-settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract....." and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge re- lied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v. Flora Sassoon 55 IA 300, at pg. 372 AIR 1928 PC 208.

28. In D.L.F. Housing and Construction (Pvt.) Ltd. (supra), in the absence of an averment on the part of the Plaintiff in the plaint, that he was ready and willing to perform his part of the contract, it was held that the Plaintiff had no cause of action so far as the re- lief for Specific Performance was concerned. In this case, of course, there is an averment in the plaint that the Respondent Plaintiff was all along ready and willing to perform his obligations under the contract. The question is whether the Respondent Plain- tiff had proved his readiness and willingness to perform his obliga- tions under the contract.

29. N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. (1995) 5 SCC 115, this Court reiterated that Sectopm 16(c) of the Spe- cific Relief Act, 1963 envisages that the Plaintiff must plead and

prove that he had performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him 3 55 IA 300, at pg. 372:AIR 1928 PC 208 4 (1995) 5 SCC 115 other than those terms, the performance of which has been prevented or waived by the Defendant. In N.P. Thirugnanam (supra) this Court said that the continuous readiness and willingness on the part of the Plaintiff was a condition prece- dent for grant of the relief of Specific Performance.

30. This Court, in effect, held that for determining whether the Plaintiff was ready and willing to perform his part of the agreement it is necessary for the Court to consider the conduct of the Plaintiff prior and subsequent to filing the suit for specific performance. The relevant part of the judgment is extracted herein below:-

"5. ... Section 16(c) of the Act envisages that plaintiff must plead and prove that he had per- formed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is re- quired to be considered by the court while granting or refusing to grant the relief..."

31. In Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC 243 , this Court held that a finding as to whether the Plaintiffs were all along and still ready and willing to perform their part of the con- tract, was a mandatory requirement under Section 16(c) of the Specific Relief Act. The Court would necessarily have to arrive at the finding that the Plaintiff all along were, and still are ready and also willing to perform their part of 5 (2005) 6 SCC 243 the con- tract, taking into account the entirety of the pleadings as also the evidence brought on record. To quote this Court:-

"So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two cir- cumstances, how could mere filing of this suit, af- ter exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plain- tiff to have this property. It may be for such a de- sire this suit was filed raising such a plea. But

Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved."

17. Thus the finding recorded by the learned trial Court that the

plaintiff was not ready and willing to perform his part of contract is

legal, justified and in accordance with law which does not warrant

any interference by this Court. So far as with regard to plaintiff

prayer for refund of Rs. 1,00,000/- with interest is concerned,

there is no such pleading in the plaint but in the memo of appeal

he has prayed for refund of Rs. 1,00,000/- along with 12% interest

from 31.12.2009 till its repayment by the defendant No. 1 to 4.

18. To examine the relief sought by the appellant in this appeal with

regard of refund of Rs. 1,00,000/- with 12% interest, it is expedi-

ent for this Court to consider the provisions of Section 22 of the

Specify Relief Act 1963 which is extracted below:-

"22. Power to grant relief for possession, partition, refund of earnest money, etc.-- (1) Notwithstand- ing anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an ap- propriate case, ask for-- (a) possession, or parti- tion and separate possession, of the property, in addition to such performance; or (b) any other re- lief to which he may be entitled, including the re- fund of any earnest money or deposit paid or made by him, in case his claim for specific perfor- mance is refused.

(2) No relief under clause (a) or clause (b) of sub-sec-

tion (1) shall be granted by the court unless it has

been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceed- ing, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the court to grant relief under clause (b) of sub- section (1) shall be without prej- udice to its powers to award compensation under section 21.

19. From bare perusal of the Section 22 of the Specific Relief Act, it is quite

vivid that no doubt, the provision of Section 22 of the Specific Relief Act

does provide that where a relief is not claimed with respect to refund of

earnest money or advance price/deposit, the courts will not grant such a

relief. The provision of Section 22 of the Specific Relief Act, however, al-

lows amendment of the plaint at any stage of the proceedings to seek re-

fund of the amount paid under an agreement to sell. In the facts of the

present case, there was no specific prayer in the plaint with respect to

the refund of the price. The issue is that whether non-mention in the

plaint by writing and seeking refund of the advance price paid results in a

complete prohibition for the courts to refund the price received by a

seller under an agreement to sell, once it is found that the agreement to

sell does not have to go through and the suit for specific performance is

being dismissed. For better understanding the provisions of Section 22

of the Act, it is necessary to note as to what is the object and require-

ment of a pleading to be filed by a party. Pleading is defined under Order

VI CPC. A pleading will include a plaint and a written statement. What is

a plaint is specified under Order VII CPC, and what is a written state-

ment is specified under Order VIII CPC. It is now a settled law by virtue

of a catena of decisions of the Hon'ble Supreme Court that object of a

pleading is to give notice of a case to the other party. The object of giv-

ing notice of a case to the other party is to ensure that the other party

can meet the case. On this principle, the appellate courts have allowed

the issues which are pure questions of law even at the appellate stage,

even in cases till the Hon'ble Supreme Court, if the issue of law goes to

the root of the matter, and even if there is no specific pleading, but the is-

sue does arise from the admitted facts and the pleadings on record.

Thus, the trial court as also the appellate courts can, depending on facts

of a particular case, allow a pure issue of law to be raised, at any stage

of the legal proceedings. This is being stated because when the object of

Section 22 of the Specific Relief Act is seen, and of the requirement of

seeking a relief with respect to the advance price paid under an agree-

ment to sell to be included in the plaint, it is found that the object of stat-

ing/praying in a pleading for refund 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. Obvi-

ously, defence of a defendant/seller would be that the advance price

and/or earnest money is not to be re-paid because it is forfeited or liable

to be forfeited either because of a specific term of the agreement to sell

or because the defendant/seller has suffered a loss and consequently for

the loss suffered by the defendant/seller, the advance price and/or

earnest money paid under the agreement to sell has to be forfeited by

applying the provision of Section 74 of the Indian Contract Act, 1872.

20. It is also settled law that unless a seller proves a loss being

caused to him on account of breach by a buyer in purchasing a property

under an agreement to sell, the advance price and/or earnest money re-

ceived under the agreement to sell cannot be forfeited because forfeiture

is in the nature of being liquidated damages under Section 74 of the In-

dian Contract Act, and that Section 74 of the Indian Contract Act cannot

come into play if the nature of the contract is such that the loss which is

caused on account of the breach of contract can be proved and as-

sessed in a court of law. This is the law as laid down way back by the

Constitution Bench of the Hon'ble Supreme court in the case of Fateh

Chand v/ Balkishan Dass, AIR 1963 SC 1405, and such ratio being elab-

orated and expounded in the recent judgment of the Hon'ble Supreme

Court in the case of Kailash Nath Associates v. Delhi Development

Authority and Anr. (2015) 4 SCC 136 wherein the Hon'ble Supreme

Court has held as under:- paragraph 42 to 43 is quoted herein below;-

42.In the present case, forfeiture of earnest money took place long after an agreement had been reached. It is obvious that the amount sought to be forfeited on the facts of the present case is sought to be forfeited without any loss being shown. In fact it has been shown that far from suffering any loss, DDA has received a much higher amount on re-auction of the same plot of land.

43. On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows:-

43.1 Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complain- ing of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-esti- mate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the

liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation. 43.2 Reasonable compensation will be fixed on well known principles that are applicable to the law of con- tract, which are to be found inter alia in Section 73 of the Contract Act.

43.3 Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, dam- age or loss caused is a sine qua non for the applicability of the Section.

43.4 The Section applies whether a person is a plaintiff or a defendant in a suit.

43.5 The sum spoken of may already be paid or be payable in future.

43.6 The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. 43.7 Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfei- ture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application.

21. From the above stated legal position and considering the facts and

circumstances of the case, it is not in dispute that plaintiff has nowhere

pleaded in the plaint with regard to refund of earnest money but in the

memo of appeal he has claimed for refund of earnest money with 12%

interest. The appeal is continuous proceedings, therefore, this Court can

very well consider grant of refund of earnest money to the plaintiff. The

defendant No. 1 to 4 in their written statement have clearly admitted the

fact that they have received Rs. 1,00,000/- as advance amount and

thereafter on 28.02.2011 they have sold the property to the defendant

no. 5 to 7 for sale consideration of Rs. 4,80,000/- and no monetary loss

for delay in sale of the property has been proved by the defendants No.

1 to 4, therefore, the defendants No. 1 to 4 cannot forfeit the earnest