1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.893 OF 2009. Rajendra S/o Jagdish Agrawal ... Appellant. Versus Kalpana W/o Uttamrao Mahajan ... Respondent. ... Mr.M.K.Goyanka, advocate for the appellant. Mr.S.P.Brahme, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 15.12.2009. PER COURT 1. Heard counsel. 2. The appellant is original defendant. The Respondent (plaintiff) filed suit for specific performance of an agreement of sale. Her suit (Spl.C.S.No.24/1998) was decreed. The 2 appellant preferred appeal against the decree which came to be dismissed. According to the plaintiff, the appellant agreed to alienate 97 Sq.m. land out of S.No.117 situated at Shirpur, Dist. Dhule, to her at rate of Rs.85/- per sq.ft. She paid earnest amount of Rs.11,000/- (Rupees eleven thousand), whreupon the appellant executed an agreement of sale in writing on 1.10.1996. He did not comply with the condition. Therefore, she gave a notice dated 24.9.1997 calling upon the appellant to perform his part of the agreement. However, neither he complied with the agreement nor replied the notice. 3. The appellant resisted the suit alleging that the agreement of sale dated 1.10.1996 was nominally executed by way of security for repayment of the loan which was obtained from husband of the plaintiff. He had taken loan of Rs.4,00,000/- (Rupees four lacs) from the plaintiff's husband who is a Medical Practitioner. He denied that there was an agreement of sale between the parties. He also denied that amount of Rs.11,000/- (Rupees eleven 3 thousand) was paid towards earnest money. 4. As stated before, there are concurrent findings of the Courts below. Mr.Goyanka, would submit that the plaintiff did not enter the witness box and no attesting witness of the agreement was examined nor proved nature of the transaction, and, therefore, the suit could not have been decreed. He would further submit that the suit could not be decreed since necessary permission was not obtained as required under law. He seeks to rely on "Smt.Harbans Atma Singh Vs. Ramesh Kumar" (AIR 1986 Punjab and Haryana 14). 5. I have gone through the judgments of the Courts below. It appears that execution of the agreement of sale was clearly admitted by the appellant. Once it was averred by the appellant that the transaction was of security for repayment of loan, though he executed the agreement of sale in favour of the plaintiff, it is but natural that the burden of proof was on the shoulders of the appellant. It was for him to prove that the intention of the parties was to 4 bring about security for the repayment of loan. Secondly, it does not stand to reason that such security could have been brought about in respect of loan of Rs.4,00,000/- (Rupees four lacs) which was allegedly advanced by husband of the plaintiff. For, the terms of the agreement would show that only Rs.11,000/- (Rupees eleven thousand) was earnest amount paid. Therefore, at the most it could be the amount of Rs.11,000/- (Rupees eleven thousand) which might have been secured but that was the case of the defendant (appellant). It is pertinent to notice that the cross-examination of the appellant indicated that the plaintiff's husband was suffering inconvenience due to daily journey from Shirpur to Chalisgaon in order to attend his work. His son admitted that appellant executed the agreement of sale (Exh.36). It was further admitted that the contents of the agreement (Exh. 36) are correct. The conduct of the appellant may be noticed. He did not reply the suit notice dated 24.9.1997. The plaintiff was relieved from burden of proving the agreement due to the clear admission of its execution by the appellant. The 5 first appellate Court referred to law settled by this Court in "Asudamal S/o Laxmandas Sindhi Vs. Kisanrao S/o Wamanrao Dharmale and others" 2003 (4) Mh.L.J.134, wherein it is laid down that lack of permission of competent authority can not be an impediment in passing the decree for specific performance. In "Smt.Harbans Atma Singh Vs. Ramesh Kumar" (supra), the fact situation was quite different. The agreement provided for damages equivalent to double of the earnest money and, therefore, the learned Single Judge of P & H High Court held that compensation could be awarded to the plaintiff instead of the decree for specific performance. That is not the fact situation in the present case. In this view of the matter, I do not find any substantial question of law involved in the Second Appeal. Hence, the Appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa89309