JUDGMENT : Pradeep D. Waingankar, J. Aggrieved by the judgment : and decree dated 17.9.2010 in O.S. No.1 6610/2003 on the file of XXVIII Addl. City Civil Judge sitting at Mayohall Unit, Bangalore, This appeal is preferred by the appellant-plaintiff. 2. The appellant-plaintiff and respondent-defendant entered into a sale agreement dated 19.5.2003, whereby the defendant agreed to sell the schedule property in favour of the plain tiff for a total consideration of Rs. 12.00 lakhs. In pursuance of the sale agreement, defendant received a sum of Rs. 3,43,653/- from the plaintiff. The balance amount was to be paid at the time of registration of the sale deed. It is stated in the plaint that the plaintiff was ever ready and willing to perform his part of the contract and to get the sale deed registered, but the defendant did not come forward to execute the sale deed. As such, the plaintiff by issuance of a legal notice as per Ex-P6 called upon the defendant to execute the sale deed by expressing his readiness and willingness to perform his part of the contract. But the defendant declined to execute the sale deed. As such, the plaintiff filed a suit for a decree of specific performance of the contract. 3. The defendant contested the suit. In his reply, the defendant contended that the agreement entered into between the plaintiff and the defendant is not a sale agreement, instead it pertains to a loan transaction entered into between the defendant and the plaintiff, as the defendant was in need of the money as he had obtained loan from KSC Apex Bank. Further, it is contended that the defendant was ready to repay the loan obtained from the plaintiff and hence, he sought for dismissal of the suit 4. The trial court framed the following issues: 1. Whether the plaintiff proves that he entered into sale agreement dated 19.5.2003 with the defendant pertaining to the sale of suit schedule property? 2. Whether the plaintiff proves that he has paid a sum of Rs. 3,343,653/- as advance amount towards the sale of suit schedule property to the defendant? 3. Whether the defendant proves that the transaction between him and plaintiff was a loan transaction? 4. Whether defendant proves that the sale agreement dated 19.5.2003 is fabricated and was fraudulently obtained as stated in para 7 of the written statement? 5. 3,343,653/- as advance amount towards the sale of suit schedule property to the defendant? 3. Whether the defendant proves that the transaction between him and plaintiff was a loan transaction? 4. Whether defendant proves that the sale agreement dated 19.5.2003 is fabricated and was fraudulently obtained as stated in para 7 of the written statement? 5. Whether the plaintiff proves that he was ready and willing to perform his part of obligation under the contract? 6. Whether the plaintiff is entitled for the re lief of specific performance as sought for? 7. What order or decree? After framing of the issues, the plaintiff in order to prove his case examined himself as PW-1 and one A. Ramesh one of the witnesses to Ex-Pi agreement as PW-2. Exs-P1 to P10 were marked. Defendant got himself examined as DW-1 apart from examining G. Chander, as DW-2, Exs-D1 to D6 were marked. The court below upon hearing the submissions made by both the learned counsel of the parties and on appreciation of evidence recorded a finding that Ex-P1 agreement entered into between the plaintiff and the defendant is not a sale agreement, but, it is an agreement pertaining to money transactions entered into between the plaintiff and the defendant and hence the court below declined to grant a decree for specific performance. However, the court below ordered for refund of Rs. 3,43,653/- received by the defendant from the plaintiff with interest at 6% p.a. Thus by the judgment and decree dated 17.9.2010, the suit was partly allowed. Aggrieved by the refusal of the specific performance, this appeal is preferred by the plaintiff. I have heard the arguments. Perused the records. 5. As I have already stated, in order to prove his case, the plaintiff got himself as PW-1 and examined A. Ramesh as PW-2. From the oral evidence of PWs-1 and 2 coupled with Ex-P1 agreement dated 19.5.2003, the plaintiff proved execution of the said agreement. Though the original agreement was styled as sale agreement, subsequently, the parties by their conduct and intention have treated the said agreement pertaining to money transaction. Before entering an agreement, the defendant obtained Rs. 2,13,653/- on 07.04.1997, Rs. 50,000/- on 14 04.1997. Though the original agreement was styled as sale agreement, subsequently, the parties by their conduct and intention have treated the said agreement pertaining to money transaction. Before entering an agreement, the defendant obtained Rs. 2,13,653/- on 07.04.1997, Rs. 50,000/- on 14 04.1997. There is an endorsement in the agreement, whereby the defendant has agreed to repay the amount received from the plaintiff on 27.9.2003 and to take back the documents and if he failed to do so, he agreed to hand over the possession of the schedule property by executing a sale deed. On 11.8.2003, the defendant made further endorsement on Ex P1 for having received Rs. 80,000/- from the plaintiff and stated that with this amount, he received total sum of Rs. 3,43,653/- from the plaintiff and the balance payable as Rs. 8,36,347/- at the time of registration of the document. There is yet another endorsement made by the defendant dated 27.7.2003 on Ex-P1, which reads as under:- “I, A.S. Prabhakar, said owner of this property mentioned in the agreement hereby confirming to settle the amount as said by the purchaser on or before 8.8.2003, if not or fail to keep up my commitment, I hereby give the right to the purchaser or his nominee to take possession by settling balance amount. I further confirm with following witnesses to honour by commitment.” Therefore, from this endorsement dated 27.7.2003, it appears that though the agreement was entered between the parties as per Ex-P1, the agreement is in furtherance of the money transaction entered into between the parties. The trial court having considered the subsequent endorsement made by the defendant on the agreement Ex-P1 has come to the conclusion that the Ex-P1 agreement is not a sale agreement, but it is in relation to money transaction entered into between the parties. On my re-appreciation of evidence, particularly the evidence of PW-1 and 2, Ex-Pi and the subsequent endorsement made thereon, I have no reason to come to a different conclusion than the conclusion reached by the court below. Once it is held it is not a sale agreement, question of grant of decree for specific performance does not arise. Rightly for the said reason, the court below has declined to grant a decree for specific performance of the agreement. Once it is held it is not a sale agreement, question of grant of decree for specific performance does not arise. Rightly for the said reason, the court below has declined to grant a decree for specific performance of the agreement. Even otherwise, the plaintiff has not produced acceptable evidence to show that he was ever ready and willing to perform his part of the contract. Nor he has deposited the balance sale consideration in the Court. On the other hand, PW-1 went on record that he agreed for the return of advance paid by him to the defendant. Needless to say that grant of specific performance is a discretionary and equitable relief. Having considered all these facts and circumstances, the court below has rightly ordered for refund of the amount of Rs. 3,43,653/- received by the defendant from the plaintiff with 6% interest thereon. Thus, I do not find any illegality or irregularity committed by the court below. Accordingly, the appeal is dismissed while confirming the judgment and decree passed by the court below. In view of disposal of the main matter on merits, Misc. Cvl. No. 22847/210 for stay does not survive for consideration. Accordingly, the same is disposed of. Appeal dismissed.