Oral evidence is admissible to show the real nature of a transaction, even if it contradicts the terms of a written contract, and the court has discretion to refuse specific performance of a contract if the bargain is unconscionable.

( 1 ) THIS appeal is by the Plaintiff in a suit for specific performance of a contract alleged to be a contract for sale of immovable properties. Plaintiff had also prayed in the suit for possession of the disputed properties by evicting the defendant therefrom and other ancilary reliefs. Plaintiffs lost in the original court of Subordinate Judge and also in the appeal. Hence this Second Appeal has been preferred in this Court.

( 2 ) PLAINTIFF's case was that defendant was the owner of the disputed properties and he had agreed to sell those to the plaintiff for a consideration of Rs. 8000/ -. On 23-12-1958 an agreement for sale was executed and registered between the parties, the plaintiff having paid Rs. 3. 500/- as earnest money. It was agreed that defendant shall make out a good and marketable title, deliver the title deeds and connected papers within two days from the date of registration of the agreement, clear the mortgage of the property created by him in favour of Government of West Bengal within 21 days from the date of agreement by paying up the dues of the mortgagee out of the earnest money and complete the transaction of sale within 30 days from the date of delivery of title deeds. Plaintiff alleged that he was ready and willing to pay the balance consideration and made repeated demands on the defendant to comply with the terms of the agreement but the defendant failed to do so. At the same time plaintiff also alleged that the defendant not having disclosed or paid up the dues of Government under the mortgage and also monies due to the Municipality and Calcutta Electric Supply Corporation, the plaintiff is entitled to withhold a portion of the consideration money for clearing those liabilities.

( 3 ) DEFENDANT contested the suit. His case is that plaintiff really advanced a sum of Rs. 2232/- as loan at a time the defendant was in urgent need of money for maintaining his big family. The document in the form of agreement for sale was executed as security for the said loan and plaintiff gave assurances that the transaction shall be treated as a loan and security for that loan. Defendant contended that the plaintiff at best can claim refund of the earnest money with 6 per cent, interest thereon.

( 4 ) AT the trial evidence was given on both sides. While on the plaintiff's side reliance was placed mainly on the registered document proved in evidence and marked Ext. 1 and a bunch of letters marked Ex. 2 series; on the side of the defendant also reliance was placed on some of the clauses in Ex. 1 and contents of letters Ex. 2 series by examining several witnesses to show the real nature of the transaction and the surrounding circumstances in which the transaction was entered into in support of the defendant's case that the transaction was really a loan and the document Ex. 1 was executed as a security for that loan. Some of those witnesses are persons who were present at the transaction and attested the document Ex. 1.

( 5 ) FACTS brought out in evidence and accepted by both the Courts below are that defendant came to India as a refugee from East Bengal leaving all his property in that country. He has a large family to maintain and look after. He purchased the land in suit measuring about 2 cottas 9 chittaks at a consideration of Rs. 6250/ -. Then he took a loan from Government of an amount of Rupees 3250/- for building a house on that land. The property at the time of the transaction evidenced by Ex. 1 consisted of an one storied building having three bed rooms, one Verandah, one C. I. roofed room and sanitary privy and a ringwell. Defendant testified that he spent about Rs. 15,000/- for those structures. Value of the property at the relevant time according to the estimate of D. W. 1 who is an Engineer and expert would not be less than Rs. 21,000/ -. Correspondence by letters Ex. 2 series shows that plaintiff's definite case was that the defendant had failed to make out good marketable title and had