The central legal point established is the interpretation of the nature of the agreement, distinguishing between specific performance and a loan transaction, as per Section 23 of the Specific Relief Act, 1963.

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth 'the Code') has been preferred by defendant Vikas Kelkar against whom a decree for specific performance of agreement dated 10-6-1998 has been passed by the trial Court, together with damages at the rate of Rs. 2,500/- per month from the date of decree till the date of delivery of possession.

2. Plaintiff's case, in short, is that the original defendant Digamber Kelkar, being in need of, sought financial assistance from the plaintiff and on denial, he, along with Milind Kelkar, agreed to sell his house bearing No.9/106 situated at Budhapara, Raipur for Rs.3 Lakhs and executed agreement to the said effect on 10-6-1998. The entire amount was received by the original defendant on the date of agreement and he handed over all the original documents to the plaintiff. It was also agreed by the original defendant that the sale-deed shall be executed by 9th of June, 2000 and shall also pay Rs.7,500/- per month to the plaintiff as damages from the date of agreement for remaining in occupation of the house. According to .the plaintiff, the original defendant issued 6 post dated cheques of Rs.7,500/- each to the plaintiff, however, the cheques were dishonoured. The plaintiff published a notice in the newspaper regarding the agreement on 10-5-1999 and legal notices were sent on 7-4-2000 and 3110-2000, which were not replied. Instead, the original defendant filed a civil suit for declaring the agreement dated 10-6-1998 as cancelled.

3. Case of the defendants is that the original defendant had never executed the agreement and the cheques were issued regarding business of Sewing Machine. It was also stated that the suit is barred by limitation and is not properly valued. According to the defendants, the plaintiff is in the habit of instituting false cases against several persons by taking support of forged documents.

4. On the basis of evidence on record, the trial Court found that the original defendant Digamber Kelkar had executed the said agreement and received Rs.3 Lakhs, however, on issues No.4 and 5, the trial Court recorded the findings that the clause regarding payment of damages at the rate of Rs. 7,500/- per month from the date of agreement and issuance of 6 cheques are not proved. The trial Court decreed the suit after finding that the plaintiff was always ready and willing to perform his part of the contract.

5. It is not in dispute that the original defendant Digamber Kelkar had instituted a suit for declaring the subject agreement as cancelled, as would be reflected in paragraph 6 of the plaint, which has been admitted in paragraph 11 of the written statement. It appears that the said suit bearing Civil Suit No.6-B/2002 abated after death of the original defendant Digamber Kelkar and the present defendants moved an application under Order 22 Rule 9 of the Code for setting aside abatement. The said application was registered as MJ.C. No.10/03, which was withdrawn by the present defendants along with other legal heirs of the original defendant Digamber Kelkar on 12-11-2007. Respondent No.1/plaintiff has moved an application under Order 41 Rule 27 of the Code to place additional evidence on record by producing certified copy of order dated 12-11-2007 withdrawing M.J.C. No.1 0/03 in the Court of 9th Additional District Judge (F.T.C.), Durg. The defendants have not filed any reply to the said application filed by respondent No. l/plaintiff. Even otherwise, the document is certified copy of the order-sheet of the M.J.C. Court and its authenticity is not in doubt. The said additional evidence is taken on record.

6. Shri Raja Sharma, learned counsel appearing for the appellant/defendant has argued that on perusal of the agreement dated 10-6-1998 Ex.P-1, it would clearly appear that the said agreement was, in fact, security for loan of Rs.3 Lakhs, which is also indicated from the framing of the suit, as, on a reading of the plaint averments, it wou