( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 548 OF 2005 WITH CIVIL APPLICATION NO. 3757 OF 2005 Laxmibai w/o. Mansabrao Mohite .. Appellant Versus Baburao w/o. Gangadhar Sonwane .. Respondent Shri V.S. Bedre h/f. Shri S.M. Biyani, Advocate for the appellant. CORAM : P.R. BORKAR,J. DATED : 09.07.2009 P.C. :- 1. Heard Adv. Shri V.S. Bedre h/f. Adv. Shri S.M. Biyani for the appellant. This is an appeal filed by the original defendant against whom decree for refund of earnest money was passed by the First Appellate Court. 2. It is case of the respondent/plaintiff that on 03.07.1995 the appellant agreed to sell 80 R land bearing Gat No.457 of village Andhaner, Tal. Kannad for Rs.60,000/-. An amount of Rs. 40,000/- was paid as an earnest money and ( 2 ) remaining amount was to be paid. For specific performance of agreement suit was filed. 3. The defendant made out case that defendant/appellant did not enter into any transaction. She had not received Rs.40,000/- as earnest money. She denied that any notice was issued to her or she refused to accept the same. According to her respondent was money lender doing money lending business without license. The transaction was loan transaction. The matter ought to have been sent to Tahsildar for debt relief. This is mentioned in para 5 of the written statement, the copy of which is made available to me by the learned advocate for the appellant. 4. The learned advocate for the appellant states that the Trial Court held that the plaintiff neither proved that the transaction was agreement of sale nor plaintiff was ready to perform his part. At the same time the issue raised regarding loan transactions was answered in the negative. 5. The First Appellate Court held that it was not loan transaction. It was agreement of sale. Though Pappu Seth ( 3 ) alias Premprakash, at whose shop the alleged agreement was executed, has turned hostile, that alone is not sufficient to discard other evidence led by the respondent/plaintiff. One of the important fact is that even son of the respondent has signed the agreement of sale. It is also proved by witnesses of respondent that the agreement was bearing thumb impression of respondent. The respondent did not come forward and offered to send the agreement for examination by finger print expert. Considering the defence taken that it was loan transaction, which defence was vehemently convassed in both Courts, in my opinion, so far as refund of Rs.40,000/- is concerned, the Trial Court did not commit error on the face of record. Said defence shows payment of amount. There are findings of fact about actual payment of amount, which are based on evidence and probabilities. No substantial question of law arises. In this view of the matter, this appeal is dismissed at the stage of admission. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa548.05