1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.535/2010 (NANDKISHOR KHANDELWAL ..VS.. PRAMOD LAXMANRAO JAWANJAL) Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 2 /12 / 2010 Heard Shri Kanungo, the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff for specific performance of contract, or in the alternative for refund of earnest amount. According to the plaintiff, the defendant had agreed to sell the suit property to the plaintiff for a consideration of Rs.1,60,000/-. At the time of agreement of sale, according got the plaintiff an amount of Rs.40,000/- was paid to the defendant in cash and an amount of Rs.50,000/- was paid by a cheque. The sale deed was to be executed on or before 30.11.2000. Since the defendant failed to perform his part of the contract the suit for specific performance was instituted. The defendant filed the written statement and denied the claim of the plaintiff. It was denied that the plaintiff had paid part consideration towards the purchase of the suit property. According to the defendant the 2 transaction was a loan transaction and the plaintiff was a money lender doing the business of money lending without licence. It was pleaded by the defendant that the plaintiff had advanced a loan of Rs.50,000/- to the defendant for the marriage of his sister and at that time the plaintiff had got the agreement of sale executed from the defendant. The defendant pleaded that the suit property was his ancestral property and the other members had a share in the suit property. The defendant stated that the said property was worth Rs.8,00,000/-. The defendants sought for the dismissal of the suit. Both the courts on an appreciation of the evidence on record held that the plaintiff had been unsuccessful in proving that the alleged agreement of sale dated 1.1.2000 was indeed an agreement to sell the suit property to the plaintiff. The courts held that the plaintiff had merely paid a sum of Rs.50,000/- to the defendant and the defendant had been successful in proving that the defendant had taken a loan of Rs.50,000/- from the plaintiff, the suit transaction was a loan transaction and the agreement of sale deed dated 1.1.2000 was a nominal document. Both the courts therefore, held that the plaintiff was not entitled to a decree of specific performance of contract. The findings recorded by both the courts are pure findings of facts, based on a proper appreciation of the material 3 evidence on record. They do not give rise to any substantial question of law. The second appeal is therefore dismissed with no order as to costs. JUDGE SMP.