A transaction will not be considered a loan in substance merely because the description of the property in the instrument is insufficient to identify the property or because there is a stipulation for payment of interest.

( 1 ) ON the basis of a binapatra dated 5-12-65, executed by the defendant, the plaintiff filed a suit for Specific Performance of Contract against the defendant. It is not disputed that such a binapatra was executed. In defence, two points were urged : first that the transaction was a transaction of loan in substance and that the description of the property in the instrument was not sufficient to identify the property.

( 2 ) THE learned trial court decreed the suit holding that the insufficient of the description in the instrument. Ext. 1. was not enough for dismissal of the suit, when the property was capable of being identified. As regard the point of loan in substance the learned trial court just referred to t fact that the defendant claimed that he signed the document without knowing the contents which was not an acceptable story as he was a literate person. It may be noticed that the learned Munsif did not further process to examine whether in spite of his knowledge about the terms of the instalment, it could be construed as a loan in substance.

( 3 ) THE learned appellate court who heard the appeal preferred against the judgment and decree of the learned trial court upheld the judgment a decree of the learned trial court. Whether the insufficiency of the description was fatal to the suit or not was considered by the learned appellant court and the point was found in favour of the plaintiff. Unfortunate again there is no direct finding of the learned appellate court that the transaction was not loan in substance. However, the learned appellate Court has discussed the characteristics which can distinguish a loan in substance from a contract to sell outright.

( 4 ) THE defendant-appellant has come as before this court in second appeal 4a. Mr. Roy Chowdhury the learned Advocate appearing for the appellant has first referred to section 29 of the Contract Act. That provision enacts that an agreements, the meaning of which is not certain or capable being made certain are void. Undoubtedly that is the legal Position. If the meaning is not c1ear, Ext. 1, the agreement would fall through. But on a consideration of the document, I find that the property can very well be identified. Ext. 1 gives the description of the suit property that the same relates to some structures and adjacent eastern shop rooms appertaining to No. 6, Gopal Nagar Road. From such description indeed the property was capable of being identified. The suit could not fail on the ground absence of more detailed description of the property, since, as observed by the learned courts below, there was no confusion in the mil of the parties as to what the subject-matter was. Neither there was a vagueness about the property, so as to make it incapable of identification.

( 5 ) THE other point agitated was that it was a loan in substance. As already noted, the treatment of the two courts below was not satisfactory. The learned trial court has not recorded any finding that it could not be a loan in substance. He has simply observed that the defendant could not be heard to say that he was not aware of the contents. He lost sight the fact that even if the defendant had failed there, the transaction still could be loan in substance, if there was proper material. That is to say, even if the defendant actually knew about the terms of the document, he was not debarred from showing the essential character of the transaction. The learned appellate court has also not recorded the direct finding but has made reference to certain tests for determining whether it could be a loan in substance. He has considered that the valuation could not be insufficient. Still there is no direct finding that it could not be a loan in substance. However, that by itself cannot be a ground for interference in second appeal, if there are no materials on the record for coming to the conclusion that it was a loan in substance. It has not been shown that the property was under valued; on