1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Second Appeal No.237 of 2009 [Parth J. Majumdar Vs. Dr. Babasaheb Ambedkar Urban Co-op. Bank Ltd. & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. M.G. Bhangde, Senior Adv., with Mr. V.V. and R.M. Bhangde for the appellant. Mr. V.G. Bhamburkar, Adv., for respondent No.1- Caveator. ----- CORAM : A.H. JOSHI,J. DATE : 15th July, 2009. 1. Heard learned Senior Adv. Mr. M.G. Bhangde as instructed by learned Advs. Mr. V.V. and R.M. Bhangde for the appellant, and learned Adv. Mr. V.G. Bhamburkar for Caveator  respondent no.1. 2. Present appellant s prayer in the suit for a decree of specific performance has been declined, and refund of earnest money with interest at the rate of 24 per cent per annum till realization has been granted. 3. Cross-suit filed by present respondent no.1 has been decreed, and present appellant has 2 been directed to hand over possession of suit premises with a direction for enquiry under Rule 2 of Order 20 of Civil Procedure Code. 4. Submissions of the learned Senior Adv., for the appellant are :- [a] The finding recorded by the First Appellate Court, confirming the finding of the Trial Court, namely that the transaction, in question, was a monetary transaction, and not intended to be an Agreement of out and out Sale is perverse being contrary to pleadings. [b] The vendor had remained ex parte, and the purchaser  present respondent no.1 did not take the plea, nor could it have taken that the Agreement with plaintiff- appellant was not an out and out Sale, but a transaction in the nature of surety or a loan transaction. 5. In support of his contention, the learned Senior Adv. Mr. M.G. Bhangde placed reliance on two reported judgments, namely:- 3 [a] Bachhaj Nahar Vs. Nilima Mandal & another [2008 (15) SCALE 158], and [b] Ramdas Vs. Sitabai & ors. [2009 (8) SCALE 654]. 6. Perusal of pleadings reveals that a plea is taken by the respondent no.1 in words which reads as follows:- 17. That the alleged agreement dated 15.5.1999 between the defendant no.2 and the plaintiff is not admitted by the defendant no.1 as because it cannot be said to be an agreement of sale, in respect of the suit property. It is nothing but a money transaction. This defendant was not at all aware about the said alleged agreement dated 15.5.1999 on which the plaintiff relies. ..... [Sub-paragraphing is done for reading convenience. While quoting, emphasis is supplied]. 7. It is seen that the words used in the pleadings are:- monetary transaction. The plea is also seen to be that :- [a] the transaction is not an agreement to sell, and 4 [b] the transaction is loan transaction. 8. True it is that the words used are monetary transaction and not the words loan transaction. 9. It is seen that in the body of plaint itself, the plaintiff himself has averred about nature of transaction as follows:- 2) That, the defendant no.2 was in need of money, therefore, he approached to the plaintiff and requested the defendant to pay Rs. one Lac and he had agreed to repay the amount within 36 months and in case Mr. Khaire (defendant no.2) failed to refund Rs. One Lac within the stipulated period of 36 months, Mr. Khaire shall transfer his share in favour of defendant. That, the plaintiff has paid Rs.50,000/- by cheque dated 14-05-1999 of Bank of Baroda, South Ambazari Road, Nagpur, bearing Cheque No. 399963. Then, thereafter, it was agreed between the parties that balance Rs.50,000/- to be paid after completion of 60 days from the date of agreement. That, thereafter, on 29.7.1999 the plaintiff has paid Rs.50,000/- vide cheque No.401896 of Bank of Baroda dt. 29.7.99. That, Mr. Khaire (defendant No.2) acknowledge the receipt of Rs. 50,000/-. That, the plaintiff submits that the defendant no.2 Mr. Vinod Khaire was in need of money, therefore, he approached to the plaintiff and requested to pay a hand loan of Rs.1,00,000/-. That, it was further agreed by the defendant no.2 Mr. V.P. Khaire that 5 he will refund the aforesaid Rs. One Lac within 36 months and if he failed to refund Rs.1.00 Laks within stipulated period of 36 months then the defendant no.2 in that event shall transfer his 1/4 th share in favour of plaintiff. [While quoting, emphasis is supplied]. 10. Underlined portion discloses that the defendant no.2 was in need of money, money was advanced, it was to be repaid within 36 months; failing which 1/4th share was to be sold to the plaintiff. 11. Therefore, the plea now raised is not available to the appellant. 12. In the background of the above referred very specific admission contained in the plaint, urging that there is no pleading or defence taken by the defendant as to transaction being a loan transaction is searching for the East on the face of dawn. 13. The sole ground of nature of transaction and the same not being decided properly falls to the ground. 14. These precedents relied upon by learned Senior Advocate have no bearing on the facts of the case in the light of the facts discussed herein above and plaintiff-appellant s own pleadings. 6 15. In the circumstances, the appeal does not involve any Substantial Question of Law, and is dismissed. Judge |Hedau|