ORDER

1. Leave granted.

2. The plaintiff-appellant filed a suit for specific performance of an agreement to sell. Relief of refund of Rs 90,000 with interest was sought for, as an alternative to the relief of specific performance, in the event of the latter relief not being allowed. The trial court found the plaintiff not entitled to the decree of specific performance. However, a decree for refund of Rs 75,000 with interest @ 12% per annum from the date of suit till realisation was granted. One of the findings arrived at by the trial court was that the defendant did not intend to enter into an agreement to sell the property and the agreement was in fact a transaction of loan with security created in the form of agreement to sell.

3. The defendant preferred an appeal. The High Court formed an opinion that if the agreement in question was not an agreement for sale of the property but was only intended to be a security for loan borrowed by the plaintiff from the defendant, then the question would arise whether the plaintiff would be entitled to a decree of Rs 75,000 with interest without payment of a proper court fee and in the absence of any specific finding that a decree for return