The dominant intention of an agreement determines its true nature, and if the dominant intention is to secure the repayment of a loan with interest, the transaction is a money-lending transaction, even if it is disguised as an agreement for sale of goods.

NAIN J.-This is an appeal by the original plaintiffs against the judgment dated October 22, 1962 of the learned Civil Judge, S. D , Sholapur, dismissing the plaintiffs suit for recovery of Rs. 33,909.94.

2. The plaintiffs instituted the suit for recovery of the said amount, interest and costs The plaintiffs area partnership firm and it has been proved that they were registered tinder the Indian Partnership Act, 1932. Defendants No. 1 are also a partnership firm. Defendant No- 2 is an admitted partner in the said firm. He is the person who executed the agreement, Exh. 42, which is the subject-matter of this litigation Defendants No, 3, 4 and 5 have denied that they were partners in the fit m of defendants No 1 at the time of the accrual of the cause of action.

3. The agreement, Exh. 42, which is the subject-matter of this litigation was executed on October 25, 1957. Thereby the plaintiffs advanced to defendants No. 1 a sum of Rs. 58,000. Defendants No. I contracted to sell to the plaintiffs 48,000 bundles of bidis at Rs 2-12-0 per bundle. The price of these 48,000 bundles worked out at the agreed rate to Rs. 1,32,000. The bidis were to be supplied within a period of five years from the date of the agreement in a particular proportion every month. It was provided that if defendants No.1 commi1ted default in supplying bidis, the balance amount then remaining out of Rs. 1,32,000 would be recoverable by the plaintiffs from defendants No. 10 The agreement also provided that for the amount due to the plaintiffs there would be a charge on the to mark label of the bidis under which trade-mark defendants No.1 marketed their goods.

4. Upto June 29, 1961, defendants No. 1 delivered to the plaintiffs 35,300 bundles of bidis The plaintiffs alleged that defendants No. 1 failed to deliver the remaining quantity. Defendants. No. 1 alleged that they had delivered 35,600 bundles but were unable to prove the delivery of the difference of 300 bundles. These bidis were of the value of Rs. 98,925.06. If this amount is deducted out of Rs. 1,32,000 we get the figure of the claim of the plaintiffs in the suit of Rs. 33,909.04. This amount the plaintiffs claimed from defendants No. 1 in terms of the agreement Exh. 42.

5. Defendant No. 2 died on December 18, 1961 and defendants No.2(A) to 2 (L) were; joined as his heirs and legal representatives. Defendants No. 2(K) and 2 (L) denied that they were the heirs and legal representatives of defendant No.2.

6. In the written statement defendants No. 1 contended that the agreement, Exh. 42, was brought about by undue influence, coercion and fraud, that the amount of Rs. 58,000 was advanced as a loan by the plaintiffs to defendants No. 1 at an exorbitant rate of interest, that the transaction Wall governed by the Bombay Money-lenders Act, 1946, and that defendants No. 1 were only liable to pay interest at 9 percent per annum. They further. contended that the plaintiffs had been over paid and that the plaintiffs form was not registered under; the Im1ian Partnership Act, 1932, and therefore the suit was not maintainable. They also contended that, Exh. 42, was a bond and was not sufficiently stamped and was then fore no admissible in evidence.

7. The trial Court held that defendants Nos. 3 to 5 were not partners in the firm of defendants No. L The trial Court also held that the agreement Exh. 42 was a bond and was not properly stamped. It, however, appears that the said agreement was admitted in evidence, marked as an exhibit and referred to in the examination-in-chief and cross-examination. The trial Court further held that the agreement was not brought about by undue influence and was not void. The trial Court also held that the transaction embodied in the agreement, Exh. 42, was a money-lending transaction and was an un Conscionable and. usurious bargain. In the result, the trial Court dispraised the plaintiffs suit with costs. The plaintiffs have come in appeal against the said decision.

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