JUDGMENT :

T. RAVINDRAN, J.

Prayer: First Appeal has been filed under Section 96 of The Civil Procedure Code against the judgment and decree dated 26.02.2013 passed in O.S. No. 2 of 2010 on the file of the District Court, Karaikal.

1. Aggrieved over the judgment and decree dated 26.02.2013 passed in O.S. No. 2 of 2010 on the file of the District Court, Karaikal, the plaintiff has preferred the first appeal.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. Suit for Specific Performance or in the alternative for the refund of the advance amount with interest as set out in the plaint.

4. The case of the plaintiff is that on 07.06.2007, the defendant and the plaintiff entered into an agreement of sale in respect of the defendant’s property described in the plaint schedule and it was mutually agreed by the parties under the sale agreement that the defendant should sell the suit property to the plaintiff or her nominee for total sum of Rs. 2,50,000/- and the sale should be concluded within a period of 11 months from the date of the agreement and the defendant should produce the encumbrance certificate for a period of 13 years in respect of the suit property and also the receipts for the payment of tax up to date, title deed, map, patta and also to get the suit property measured within the stipulated period and thereupon, the plaintiff should pay the balance sale consideration and obtain the execution of the sale deed from the defendant. It is further put forth that the defendant received a sum of Rs. 2,00,000/- as advance on the date of the sale agreement. The sale agreement had been duly registered on the same date. The defendant had not complied with any of the conditions stipulated in the agreement abovestated and though the plaintiff was ever ready and willing to perform her part of the contract and eagerly waiting to settle the balance sale consideration, however, the defendant had not handed over to the plaintiff the antecedent title deed, encumbrance certificate, patta, map etc. for her scrutiny to enable her to purchase the requisite stamp papers for the preparation of the sale deed and furthermore, according to her, on 13.12.2007, the defendant met the plaintiff and received a further sum of Rs. 40,000/- and assured to complete his part of the agreement within 11 months as stipulated in the agreement and for the abovesaid payment, the plaintiff obtained due receipt from the defendant. The period of 11 months stipulated in the sale agreement had expired on 06.05.2008. The plaintiff had been repeatedly requesting the defendant to receive the balance sale consideration and execute the sale deed, however, the defendant had not been responding to the same and prolonging the matter by giving evasive replies. The defendant failed to comply with his part of the contract. During last year, the defendant without fulfilling his part of the contract left India on account of his employment and after sometime, the defendant called the plaintiff over mobile phone and informed that he would return to India and execute the sale deed in favour of the plaintiff. Only a sum of Rs. 10,000/- remain to be paid by the plaintiff. The plaintiff therefore issued an advocate notice on 23.06.2009 calling upon the defendant to perform his part of the contract. Though the defendant had duly acknowledged the said notice, neither complied with the demand made thereunder nor issued any reply. Hence, the suit for appropriate reliefs.

5. The defendant resisted the plaintiff’s suit contending that the document, under which the plaintiff has laid the suit, is not a sale agreement in the real terms of the sale and there is no sale contract between the parties. The actual transaction between the defendant and the plaintiff’s husband is a loan transaction. In order to meet the financial commitments of the defendant’s father-in-law Mohamed Ibrahim, he availed a loan of Rs. 2,50,000/- from the plaintiff’s husband. To