ORDER

This appeal by special leave arises from the judgment of the Division Bench of the Bombay High Court, made on July 30, 1985 in First Appeal No. 46/1979.

2. The admitted facts are that the appellant had 22.38 acres of land in village Gondia. A document purporting to be an agreement of sale was executed on April 20, 1972 for sale of 11.76 acres out of the said land for a consideration of Rs. 50,000/-. The recital therein and an endorsement on the foot of it is to the effect that a sum of Rs. 48,000/- was received as consideration for sale of the said lands and balance of Rs. 2,000/- was required to be paid within one year and sale deed was required to be executed thereon. Since the sale deed was not executed within one month prior to the date of the expiry of 3 years period from the date of agreement on March 13, 1975, the respondent got issued the suit notice calling upon the appellant to execute the sale deed. On failure thereof, he filed the suit on the last day of the limitation. The trial Court dismissed the suit. But on appeal, the High Court, while rejecting the relief of specific performance, directed payment of a sum of Rs. 62,280/- inclusive of the principle sum of Rs.48,000/-, interest accrued thereon and cost plus 6% future interest on the principal amount of Rs. 48,000/-. Thus, this appeal by special leave.

3. The contention raised by Shri Deshpande, learned counsel for the appellant, is that the High Court and the trial Court concurrently disbelieved the agreement purporting to be for alienation of the land but was, in fact, in truth and in reality a money transaction. Having come to that conclusion, the High Court would have agreed that the amount payable was towards interest on the unpaid loan taken by the appellant from the respondent. On the admitted finding that the respondent was money-lender, it would be unlikely that he had paid Rs. 48,000/- as cash consideration for that agreement; and would not have kept quite without asking for the delivery of the possession and then without paying Rs. 2,000/- for 3 years and filing the suit on the last date. Under these circumstances, necessary conclusion would be that the purported endorsement was not, in fact, receipt of the amount but does owed to him. Shri Uday Umesh Lalit, learned counsel for the respondent, on the other hand, contends that in view of the fact that the respondent executed endoresment as consideration of Rs. 48,000/- for sale transaction and the capacity to pay the amount having not been put in issue, the conclusion reached by the High Court that the amount of Rs. 48,000/- was paid as a fact is a finding of fact. Therefore, it needs no interference.

4. Having regard to respective contentions, the question that arises for consideration is : whether the respondent has paid Rs. 48,000/- as cash consideration towards sale transaction ? It is seen that document purporting to be an agreement of sale was not, in fact, in truth and in reality, not an agreement of sale. Witness No. 2, the scribe of the agreement admitted in the examination-in-Chief that he had executed several similar documents. All those documents i.e., 10 out of 8, relate to specific performance; all of them are of those who took loan from the respondents. It is an admitted position that the respondent is a money-lender. Under these circumstances, the document purporting to be an agreement for sale is in fact not an agreement for sale; it is towards the unpaid interest on the loan taken by the respondent. It is seen that the High Court also accepted that the appellant had taken a loan in 1965 for a sum of Rs. 1500/- and repaid Rs. 3500/-. Shri Deshpande says that the sum of Rs. 15,000/- is not factually correct; it is actually only Rs. 1,500/-. If it is true sale transaction and the respondent being a businessman and having purported to have paid Rs. 48,000/-, one would expect that he would seek possession or he would pay the balance consideration and request for execution of the sale d