JUDGMENT 1. - This first appeal under Section 96 C.P.C. arises out of the judgment and decree dated 6.12.1986 passed by the learned Additional District Judge No. 5, Jaipur City, Jaipur by which the learned Judge has decreed plaintiff's suit for specific performance, holding that the defendant has not been able to prove that the terms and conditions incorporated in the agreement were ostentatious. 2. The admitted facts emerge out from the pleadings and evidence adduced by the parties may be summarised as hereunder : (A) On 26.2.1979 defendant Suraj Narayan (since dead and now represented by legal representatives) executed an agreement, Ex.1 by which he agreed to sell his house No. C-21 Bapu Nagar, Jaipur to the plaintiff for a consideration of Rs. 1,30,000/- and received from the plaintiff a sum of Rs. 65,000/- which included Rs. 3,000/- as an advance as against sale consideration, on 18.10.1978. (B) At the time of above transaction, the defendant was in need of money so as to enable him to redeem his house from the mortgage of Jasoda Ithi and plaintiff was also in need of accommodation so as to enable him to run his school. (C) It was agreed upon between the parties that defendant shall hand over vacant possession of complete house up to 31.5.1979, failing which interest @ 1% will be charged on the money so advanced. (D) It was further agreed that if defendant agrees to give to the plaintiff the constructed eastern wing of three rooms and one big hall, the plaintiff would not claim interest on Rs. 65,000/- and at the same time the defendant will not receive rent for the above portion. (E) It was further agreed upon between the parties that if, under any circumstances, the registry of the house, which was required to be done within six months, is not effected, the plaintiff would be entitled to charge interest Q 2% per month on Rs. 65,000/- and the plaintiff will have to vacate the portion on receiving the amount. (F) Defendant handed over possession of the constructed eastern wing, consisting of 3 rooms and a big hall to the plaintiff. (G) Prior to expiry of the period of six months, the plaintiff issued a notice Ex.A-1 to the defendant on 24.7.1979, thereby raising demand for payment of a sum of Rs. 66,400/- which included interest, within a period of 7 days. (G) Prior to expiry of the period of six months, the plaintiff issued a notice Ex.A-1 to the defendant on 24.7.1979, thereby raising demand for payment of a sum of Rs. 66,400/- which included interest, within a period of 7 days. (H) Plaintiff then filed a suit for specific performance of contract, coupled with a prayer for money decree for Rs. 65,000/- along with interest @ 2% P.M. 3. In view of above, the only question that falls to my consideration is whether the agreement entered into between the parties is an agreement for sale of immovable property as mentioned therein or gives an option of paying money in lieu of specific performance? 4. Execution of agreement, Ex.1 is admitted by the parties to the suit. However, the circumstances under which the said agreement came into existence with it terms, a question of construction of the instrument as to the nature and rights and obligations it sought to create would arise to decide the true purport of agreement and whether the plaintiff is entitled to a decree for specific performance. At the time of execution of Ex.1 the house in question was under mortgage with Jasoda Rathi and defendant was in need of money to redeem the mortgage. Similarly, the plaintiff was also in need of accommodation to run the school. Under these circumstances, agreement Ex.1 was executed. Prior to expiry of the period of six months stipulated for registration of sale deed, the plaintiff issued a notice Ex.A-1 to the defendant and demanded return of money advanced, with interest. The agreement Ex.1 stipulates that in the event of handing over possession of constructed eastern wing of house to the plaintiff by the defendant, there will be no interest on the amount so advanced and also there will be no rent for the above portion. The document further stipulates that in the event of defendant not being able to get registry of the house within six months, the plaintiff shall be entitled to charge interest @ 2% P.M. on Rs. 65,000/- and the plaintiff will have to vacate the portion of the house after the defendant pays the aforesaid sum along with interest. 5. The document further stipulates that in the event of defendant not being able to get registry of the house within six months, the plaintiff shall be entitled to charge interest @ 2% P.M. on Rs. 65,000/- and the plaintiff will have to vacate the portion of the house after the defendant pays the aforesaid sum along with interest. 5. It is thus evident that the clauses in the agreement give an option to the defendant in clear terms either to pay the amount and retain the property or to sell the suit property to the plaintiff for a consideration of Rs. 1,30,000/-. This fact is fortified by the contemporaneous conduct of the parties and contemporaneous documentary evidence i.e. the notice Ex.A-1. The agreement was not an agreement of sale without an option to the defendant to pay off the amount advanced thereunder by the plaintiff. The plaintiff himself has claimed the relief of money decree. It is thus 'evident that the domain object of the plaintiff was to recover the loan and not to enter into an agreement for sale of property. On payment of money along with interest, the plaintiff was obliged to hand over possession of the portion of the house. Possession of portion of the house was entrusted with clear understanding that there will be no interest on the amount advanced and no rent would be payable to the defendant for the portion given to the plaintiff. As such, the vendor had option to retain property by returning with interest the advance received. The above clause in the agreement confers on vendor a right not to part with the property and to terminate agreement at his option. Offer to sell is thus not unconditional and absolute. In the circumstances therefore, it can be said that the contract which is in its nature revocable cannot be enforced. The clause of payment of advance money with interest in the agreement made it as a substitute for the performance of the act stipulated at the choice of the defendant. The case, therefore, fell under .Section 23 of the Specific Relief Act, 1963, making it permissible for the Court to decline specific performance. Section 23 of the Specific Relief Act, 1963 runs as under : "23. The case, therefore, fell under .Section 23 of the Specific Relief Act, 1963, making it permissible for the Court to decline specific performance. Section 23 of the Specific Relief Act, 1963 runs as under : "23. Liquidation of damages not a bar to specific performance.-(l) A contract, otherwise proper to be specifically enforced, may be to enforced, though a sum be named in it as, the amount to be paid in case of its breach and the party in default is willing to pay the same, if the Court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance. (2) When enforcing specific performance under this section, the Court shall not also decree payment of the sum so named in the contract." 6. Learned counsel for the plaintiff respondent has placed reliance upon a decision of the Apex Court in M.L. Devender and others v. Shed Khaja, AIR 1973 SC 2457 wherein the Apex Court classified the contracts into following three categories : (1) Where the sum mentioned in strictly a penalty, a sum named by way of securing the performance of the contract, as the penalty is a bond; (2) Where the sum named is to be paid as liquidated damages for a breach of the contract; and (3) Where the sum named is an amount the payment of which may be substituted for the performance of the act at the election of the person by whom the money is to be paid or the act done." and held that "Where the stipulated payment comes under either of the two, first mentioned heads, the Court will enforce the contract, if in other respects it can and ought to be enforced, just in the same way as a contract not to do a particular act, with a penalty added to secure its performance or a sum named as liquidated damages, may be added to secure its performance or a sum named as liquidated damages, may be specifically enforced by means of an injunction against breaking it. On the other hand, where the contract comes under the third head, it is satisfied by the payment of the money, and there is no ground for the Court to compel the specific performance of the other alternative of the contract." 7. The ratio of the above decision squarely applicable to the facts of the instant case in as much as the case in hand falls in category (3), where the sum named is a substitute for the performance of the act at the choice of the defendant. Therefore, the view taken by the Court below for decreeing the suit for specific performance of contract is totally unjustified. 8. Learned counsel for the respondent has also contended that the defendant did not exercise the option to retain the property prior to the date fixed for execution of sale deed. Learned counsel for the respondent further pointed out that on enquiry by Court below during arguments, the defendant disclosed that he is not in a position to pay the principal and interest accrued thereon. Suffice it to observe that in agreement to sale Ex.1, no time period has been fixed for exercising the option. Agreement to Sale Ex.1 simply stipulates that in case, due to any circumstances, the registry of the house (which ought to be done within six months) is not effected, Mr. Everett (plaintiff) will be entitled to charge interest @ 2% P.M. only on the amount of Rs. 65,000/- and he will have to vacate the given portion of the house on receiving the amount which he has paid. Secondly, non-exercise of option is not material for the purposes of determining the true nature of agreement executed between the parties in the given facts. Option to retain the property can be exercised by the defendant at any time. 9. Resultantly, this appeal is allowed and impugned judgment and decree of the trial Court directing specific performance of the contract is, set aside. Plaintiff's suit against the defendant-appellants is decreed for a sum of Rs. 65,000/-. The plaintiff shall also be entitled to get interest on this amount @ 2% per month from 26.2.1979 till filing of the suit. Thereafter the plaintiff-respondent shall get interest @ 6% per annum on Rs. 65,000/- till the date, the amount is realized. Plaintiff's suit against the defendant-appellants is decreed for a sum of Rs. 65,000/-. The plaintiff shall also be entitled to get interest on this amount @ 2% per month from 26.2.1979 till filing of the suit. Thereafter the plaintiff-respondent shall get interest @ 6% per annum on Rs. 65,000/- till the date, the amount is realized. On payment of decreetal amount, the plaintiff-respondent shall handover to the defendant-appellants, vacant possession of the portion of house No. C-21, Bapu Nagar, Jaipur which is in his possession i.e. constructed eastern wing consisting of three rooms and one big hall.Appeal Allowed. *******