CHANDRAKANTHARAJ J. ( 1 ) THIS is a defendant's appeal against the judgment and decree dated 8-4-1986 passed by the IV Additional City Civil judge, Bangalore, in 0. S. No. 7345/ 1980. ( 2 ) THE respondent has entered caveat and is represented by a counsel. ( 3 ) THE aforementioned suit Was filed seeking specific performance by the cefendant-appellant in respect of the suit schedule property which was contracted to be sold by the defendant for a consideration of Rs. 1,11,000/ -. After having received advance of Rs. 76,000/- an agreement of sale dated 23-6-1979 was executed. Plaintiff was willing to pe form at all times his part of the contract. However, the defendant went back on his undertaking to convey the property to him after receipt of the balance of consideration and refused to execute the sale deed. ( 4 ) WHILE resisting the suit claim, defendant admitted the execution of the said agreement of sale. He also admitted the receipt of a total sum of Rs. 76,000/- bv about end of October 1979 under the suit sale agreement. Certain averments made bv the plaintiff in regard to the steps taken by the defendant to perform his part of the contract were denied by the defendant. He however pleaded that he was very old, deaf, poor in eye sight and also weak minded and in a momsnt of confusion had signed the application made to the Competent Authority under the Urban Land Ceiling Act. He also pleaded that the site was allotted to his wife Smt. Jayamma and that she had purchased the site paying her own money and therefore the property standing on that site also belonged to her. Even the amounts borrowed for constructing the house was discharged by her. In that event the appellant-defendant was not competent to sell the property belonging to his wife. He further took shelter in his written statement under clause 12 of the Agreement of sale which provided for payment of Rs. 5000/- by way of penalty on liquidated damages for non-performance of the contract by either party. He therefore prayed that the suit may be dismissed. On the above pleadings, the Court below framed as many as 11 issues. They are as follows :-"1) Whether the defendant proves that the agreement took place between the plaintiff's husband and himself as contended in para-1 of the written statement ? He therefore prayed that the suit may be dismissed. On the above pleadings, the Court below framed as many as 11 issues. They are as follows :-"1) Whether the defendant proves that the agreement took place between the plaintiff's husband and himself as contended in para-1 of the written statement ? 2) Whether the defendant proves that he was coerced to sign the application dated 11-10-1979 for conversion as contended in paras-1 and 2 of the written statement ? 3) Whether the permission dated 6-11-79 is void as contended in para-2 of the written statement ? 4) Whether the plaintiff proves that he was ready to pay the balance of consideration and do his part of the contract ? 5) Whether the defendant proves that the plaintiff knew that the defendent had no right, title or interest over the suit property on the date of the agreement ? 6) Whether the defendant is entitled to insist upon the alternative clause of liquidated damages of Rs. 5000/- ? 7) Is the plaintiff's husband a necessary party to the suit, if so, is the suit bad ? 8) Whether the suit is premature as contended in para-6 of the written statement ? 9) Is the plaintiff entitled to specific performance of the agreement ? 10) To what order and decree ? 11) Whether the defendant proves hardship pleaded in the written-statement if the suit is decreed for specific performance of suit agreement and this is a fit case not to exercise the discretion of the Court in favour of granting the relief to plaintiff ? it is needless to say that the Court found in favour of the plaintiff on all issues and directed that the defendant should execute the Sale Deed and made consequantial directions to which we will refer to a little later. " ( 5 ) IN this Court Mr. K. J. Shetty. counsel for the appellant-defendant has urged that the plaintiff-respondent had not discharged the onus on him to prove that clause 12 of the suit agreement of sale was not intended to be acted upon. Therefore, in the absence of that evidence required to be adduced by the plaintiff, the Court ought not to have permitted the specific performance of the contract but should have awarded only the liquidated damages agreed to by the parties. We do not think that we should accede to that argument. Therefore, in the absence of that evidence required to be adduced by the plaintiff, the Court ought not to have permitted the specific performance of the contract but should have awarded only the liquidated damages agreed to by the parties. We do not think that we should accede to that argument. Indeed evidence has been lead by the defendant himself. The lawyer who drafted the agreement has been examined in the case. ( 6 ) CLAUSE 12 as it does occur almost at the end of the agreement clearly indicates that it is not penal in character which was intended to be acted upon, having regard to the fact that the agreement of sale was executed in the later part of June 1979 and advance was paid by three instalments in 1979 itself Therefore question of penalising for non-performance of the contract had not arisen any time between, say, 23-6-1979 and end of October 1979. In any event probably during the later part of november he was still under contemplation of going through the sale. It was only as admitted by himself, on consulting his wife who returned from Bombay towards the end of November that she declined and therefore he could not go through the same or refused to perform his part of the contract. Therefore, it is clear that no person of ordinary prudence would have agreed to permit the vendor under an Agreement of Sale to escape with a liability of Rs. 5,000/- only for non-performance of the obligations of the vendor under the contract unless it was put as a mere formal clause or a clause in terrorem. ( 7 ) NO doubt this matter was argued at length in the trial Court before the trial judge. The trial Judge as we see from paragraph-12 of the judgement under appeal has discussed in detail the arguments and having ragard to the judgment of the Supreme Court in the case of M. L. Devender Singh and others v Syed khaja ( AIR 1973 SC 2457 ) has rejected. In the aforementioned case the supreme Court categorically held that mere specification of a sum of money to be paid for breach in order to compel the performance of the contract does not by itself remove the strong presumption contemplated by the use of the words "unless and until the contrary is proved". In the aforementioned case the supreme Court categorically held that mere specification of a sum of money to be paid for breach in order to compel the performance of the contract does not by itself remove the strong presumption contemplated by the use of the words "unless and until the contrary is proved". It further held that the sufficiency or insufficiency of any evidence to remove such a presumption would be a matter of evidence. It also held that it was only when payment was an alternative to carrying out the other terms of the contract, it would exclude, by the terms of the contract itself, specific performance of the contract to convey a property. No doubt the Supreme Court has taken the precaution as is usual to add that the circumstances of each case should decide that fact. Now the presumption referred to in the case decided by the Supreme Court is the presumption arising under Section 10 of the Specific relief Act, 1963. The presumption in section 10 of the Act, is always in favour of the purchaser under the agreeement of sale. The language is such. While under Sec. 10 the specific performance of any contract may, in the discretion of the court, be enforced - clauses (a) and (b) to Sec. 10 read :-"a) When there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done ; or b) when the act agreed to be done is such that compensation in money for is non-performance would not afford adequate relief". The explanation thereto provides ; that the court shall presume - (I) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. . . . . . . . . . . . " in other words presumption being in favour of the Purchaser the contrary is required to be proved not by the purchaser but by the vendor. In this case as we see from the evidence, no attempt whatsoever has been made by the defendant-appellant to place any material to rebut the presumption except to plead that he will be deprived of a house as he none other than the suit property if he is compelled to perform the suit contract. In this case as we see from the evidence, no attempt whatsoever has been made by the defendant-appellant to place any material to rebut the presumption except to plead that he will be deprived of a house as he none other than the suit property if he is compelled to perform the suit contract. That plea does not meet the requirement of the burden east upon the defendant or the vendor under explanation (ii) to sub-clauses (a) and (b) of Section 10 of the Specific Relief act, 1963. Therefore, the trial Court came to the correct conclusion that the dominant intention of both the vendor and the purchaser at the time the suit agreement was concluded was the purchase of the property and not the payment of the liquidated damages mentioned for breach of contract. In the light of the conclusion we have reached above, it is un-necessary for us to further discuss the second contention of the learned counsel for defendant-appellant that the plaintiff had not discharged his obligation or burden or onus under Section 10 of the act. ( 8 ) IT was lastly pointed out by the learned counsel that there was an error in the judgment inasmuch as the learned trial Judge had directed in addition to the costs of the suit all expenses of executing the sale deed should also be met by the defendant-appellant. On a more careful reading of the judgment, we find that the concluding section is an error which is not in conformity with the earlier pronouncement of the learned judge who has clearly stated that the plaintiff shall meet all the incidental expenses including the stamp value regarding the sale deed. We may add that it is in-cumbent upon the plaintiff to pay incidental charges in addition to what has been specified in the decree. ( 9 ) NO other infirmity is pointed out in the judgment. Evidence is clear and its appreciation quite well directed by the trial Court. We therefore see no merit in this appeal and reject it. ( 10 ) IN this court each party will bear his and her own cost respectively. Appeal is rejected --- *** --- .