JUDGMENT : SAHIDULLAH MUNSHI, J. 1. The present appeal was admitted by the Hon’ble Division Bench by an order dated 27th September, 2002 on ground nos. (I), (II) and (IV). The said grounds are as follows: I. whether the Learned Civil Judge, senior division erred in law in not considering that the possession of the plaintiffs upon the suit property and the price of the land at the relevant time was Rs.7,000/- which was shockingly low and in such view of the matter the impugned transaction dated 17th February, 1974 was nothing but a loan transaction. II. whether the Learned Civil Judge, Senior Division erred in law in not following the legal tests in order to decide that the impugned transaction dated 17th February, 1974 was a loan transaction or out and out sale. IV. Whether the Learned Civil Judge, Senior Division erred in law in not considering the most important aspect, namely, the possession of the property and also the price of the property at the relevant point of time in order to decide whether the disputed transaction was a loan transaction or out and out sale. At the time of admission the Hon’ble Division Bench was also pleased to formulate an additional ground to the effect, “whether the judgment of the first Appellate Court passed on surmises and conjectures and considerations of which are not relevant in judgment under the Bengal Money Lenders Act can be called a proper judgment under the Bengal Money Lenders Act and can be proper judgment rendered by the First Appellate Court.” At the time of admission the Hon’ble Division Bench also took note of the fact that the appellants filed an application under Order XLI Rule 27 of the Code of Civil Procedure to bring on record additional evidence and on the said application the Division Bench directed that the said application under Order XLI Rule 27 would be heard along with the appeal. While at the time of hearing of this appeal the Learned Advocate for the appellant made his submission on the application under Order XLI Rule 27 of the Code of Civil Procedure he has also drawn attention of the Court to the supplementary affidavit filed by the appellant. Affidavit-in-opposition have also been used by the respondents both in respect of the application under Order XLI Rule 27 as also the supplementary affidavit. Affidavit-in-opposition have also been used by the respondents both in respect of the application under Order XLI Rule 27 as also the supplementary affidavit. Parties have been heard at length on the application under Order XLI Rule 27 of the Code of Civil Procedure. On perusal of the application under Order XLI Rule 27 of the Code it appears that the plaintiff/appellant has made out a case that on 15th September, 2002 the appellant no.1 while discussing about their second appeal pending before this Hon’ble Court with one Hare Krishna Hrishi, it was learnt by him that the said Hrishi purchased a property measuring 3 decimal under Khatian No. 555 plot no. 397 in Mouza Protapdighi for a consideration of Rs.2,500/- which is a plot closer to the suit land. He also came to learn from another person Surendra Nath Bera of village Bamanbar, P.S- Potashpur, District- Medinipur that he purchased a land by registered sale deed dated 07.04.1970 in respect of ½ decimal of land for a consideration Rs.7,000/- of Mouza Prodapdighi under khatian no. 395 dag no. 394 from one Bidyadhar Bera, which plot is also close to the suit plot. He also came to learn from another person Anil Kumar Roy from village Srirampur, P.SPotashpur, District- Medinipur that he purchased by a registered sale deed dated 25.04.1975 a land measuring 2¼ decimal for a consideration of Rs.5,500/- at Mouza Protapdighi under Khatian no. 500 dag no. 392 from one Surendra Nath Bera. Such land is also a land close to the disputed suit land. On request of the appellant no.1 the said 3 persons supplied him the deeds and thereafter, the appellant produced it before this Court to consider those as additional evidence. Copies of the said three deeds have been enclosed collectively and marked with letter ‘A’. This was the strong belief of the appellant that if those deeds are taken into consideration by this Court this would have direct bearing on the decision of the Learned Courts below whereby the suit was dismissed. According to the plaintiff/appellant, those deeds would reveal the actual value of the land sold out by the appellant to the respondent and these contemporaneous documents reveal that the plaintiff sold out the suit land at a much lesser price and had this been proved before the Learned Courts below, suit would not have been dismissed. According to the plaintiff/appellant, those deeds would reveal the actual value of the land sold out by the appellant to the respondent and these contemporaneous documents reveal that the plaintiff sold out the suit land at a much lesser price and had this been proved before the Learned Courts below, suit would not have been dismissed. After the said application under Order XLI Rule 27 was affirmed in 2002 the appellant also filed a supplementary affidavit on 12th December, 2017. By the supplementary affidavit the appellant sought to convince this Court that subsequent to the application under Order XLI Rule 27 the appellant also procured certain documents to show that the possession over the suit property is still with the appellant and that are paying taxes to the gram panchayet concerned and to that effect the appellant have annexed certain certificates issued by the Pradhan of the concerned gram panchayet. In support of such statement of possession of the appellant in the suit plot they have annexed certificates of the Pradhan of Srirampur Gram Panchayet, certificate of Savapati, Patashpur Panchayet Samiti, tax receipts issued by the gram panchayet of Srirampur, Record-of-Rights in the name of Bhargabendra Nath Jana, Manabendra Nath Jana and Jadabendra Nath Jana, tax receipts showing payment of land revenue by Bhargabendra Nath Jana, Manabendra Nath Jana and Jadabendra Nath Jana. They have also annexed certain documents to show that they were consuming electricity in the suit plot in the name of the appellants. According to the appellants the documents so annexed were lying with them all through out, but the learned advocate in the Court below never advised the appellant to file those documents for using the same as evidence and, therefore, application under Order XLI Rule 27 has been filed on the advise of the learned Advocate in this Court and by way of supplementary affidavit these documents have been placed. On perusal of the application of the supplementary affidavit it appears that save and except the deeds annexed to the application under Order XLI Rule 27 affirmed on 20th September, 2002 other documents disclosed in the supplementary affidavit are of very recent origin and particularly those have been procured from different authorities after the appeal was admitted for hearing on 27th September, 2002 except one of two documents of 1993-1994 issued by the Gram Panchayet accepting land cess. Mr Ghosh has relied on two decisions in respect of his application under Order XLI Rule 27 in the case of – * Bangshidhar Pal – Vs. – Anil Kumar Pal, reported in 1994(2) CLJ 114, and * M/s. Ceean International Private Limited – Vs. – Ashok Surana & Anr., reported in AIR 2003 Calcutta 263. Relying on the said decisions of this Hon’ble Court Mr. Ghosh submits that the Appellate Court can entertain an application under Order XLI Rule 27 of the Code “for any other substantial cause” as has been mentioned under clause (b), sub-rule (1) of the said Rule, therefore, according to Mr. Ghosh although Order XLI Rule 27 of the Code is an exception for acceptance of additional documents at the appellate stage in view of the expression “for any other substantial cause”, the Court should not ordinarily refuse the additional evidence and if necessary the Court can pass a decree on the basis of such additional evidence. Mr. Bhattacharya appearing for the respondent has drawn attention of this Court to the affidavit-in-opposition used by his client both against the application originally filed and the supplementary affidavit there to. He submits that such an application is not at all maintainable in law in as much as no cogent ground has been shown by the appellant in making such a belated application before this Court. It would be appropriate to discuss the provision of Order XLI, Rule 27 and before doing so the provision is set out below:- “O. XLI, R.27. Production of additional evidence in Appellate Court. – (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. It would be appropriate to discuss the provision of Order XLI, Rule 27 and before doing so the provision is set out below:- “O. XLI, R.27. Production of additional evidence in Appellate Court. – (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if – (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” From a bare perusal of the provision of Rule 27 it is clear that the legislature intended to make such provision as an exception to the ordinary rule. It is not a routine matter to be invoked by any person whoever filed an appeal to produce additional evidence to fill up the lacuna. It is a case made out by the appellant, firstly, that the contemporaneous deeds annexed with the application show that at the relevant point of time the suit property was valued more than at what it was sold. It is a case made out by the appellant, firstly, that the contemporaneous deeds annexed with the application show that at the relevant point of time the suit property was valued more than at what it was sold. The rule prescribes for acceptance of additional evidence in exceptional circumstances where the appellant can demonstrate before this Court and Court can come to a conclusion that despite due diligence the appellant failed to produce the document at the relevant time that is to say – (1) The appellant tried to produce the document before the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or, (2) the parties seeking to produce such evidence can establish that despite due diligence such evidence was not within his knowledge or, (3) the appellant even after exercise of due diligence could not produce such document at the time when the decree appealed against was passed or, (4) the Appellate Court requires a document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. Mr. Ghosh, in support of acceptance of additional evidence, has given much stress on this expression “for any substantial cause”. The grounds on which additional evidence should a Court accept are not apparent on the application under Order XLI, Rule 27. I respectfully disagree with Mr. Ghosh that the expression is to be considered by the Court for acceptance of additional evidence. The expression “or in any other substantial cause” is not disjunctive but conjunctive in nature. This expression cannot be read in isolation of other criteria mentioned in Rule 27 of Order XLI rather application of this expression is to be weighed on the other conditions mentioned in the Rule. Before Court comes to a conclusion that it is necessary for a substantial cause, it has to satisfy itself that the appellant made all reasonable attempts to produce the document or to bring it to the notice of the Court but Court refused to accept it or the additional evidence was not within his knowledge despite due diligence. In this case the shield sought to be used by the appellant is that the documents were with him but the learned Advocate did not advise him to produce the same. Whether this can be a ground for acceptance of additional evidence? In this case the shield sought to be used by the appellant is that the documents were with him but the learned Advocate did not advise him to produce the same. Whether this can be a ground for acceptance of additional evidence? In my considered view, this is no ground at all for acceptance of additional evidence. In this respect Mr. Bhattacharya appearing for the respondent has relied on a decision in the case of Haryana State Industrial Development Corporation – Vs. – Cork Manufacturing Co., reported in (2007) 8 SCC 120 . This is a decision of a Division Bench of the Hon’ble Apex Court presided over by Justice Tarun Chattarjee wherein Their Lordships held that Order XLI, Rule 27 of Code of Civil Procedure does not empower an Appellate Court to accept additional evidence on the ground that such evidence could not be produced or filed either before the trial Court or before the First Appellate Court due to inadvertence or lack of proper legal advise. Refusing to accept the submission made by the Learned Additional Solicitor General who sought to argue that the pleadings made in the application for acceptance of additional evidence is somewhat came within the meaning of “substantial cause” under Order XLI, Rule 27 (1) (b) of the Code of Civil Procedure, the Hon’ble Supreme Court held that lack of proper legal advice or inadvertent mistake to produce legal notice in evidence is not a ground to hold that there was substantial cause for acceptance of additional evidence. In this case I do not find any reason to believe that the document came to the custody of the appellant after the decree was passed by the lower Appellate Court, or that the same was lying with him but due to lack of advice the documents were not produced before the Court, or that because of such lack of advice they are now eligible to produce the said documents and the Court is under obligation to accept such documents only relying on the expression of ‘any other substantial cause’. Those apart, it is apparent from the record of the application under Order XLI, Rule 27 of the Code of Civil Procedure that from some local people plaintiff recovered in the year 2000 that other persons purchased land in that Mouza near to the petitioner’s land at a higher value, therefore, such statement has to be believed by the Court that the property is of much higher value than what has been mentioned in the impugned deed. A man of ordinary prudence would raise a question why before filing this suit the plaintiff/appellant would not make a reasonable inquiry into the value of the land in question. Simply because the defendant has made a sweeping allegation that the land is more valuable that cannot be the factor determining the valuation of the suit property. Therefore, the documents disclosed, in my view, are not required for any substantial cause. The documents disclosed in the supplementary affidavit are of recent origin and if those documents are taken into consideration, they cannot help to make the appellant’s case better than what was prevailing on the day when the learned Appellate Court below passed the decree. Therefore, the application under Order XLI, Rule 27 cannot be accepted and the same is rejected. Even after rejection of the application under Order XLI, Rule 27 of the Code of Civil Procedure, it would be improper on my part if I do not deal with the provision of Section 107 of the Code of Civil Procedure which demonstrates power of Appellate Court. Section 107 of the Code of Civil Procedure is set out below:- “107. Powers of Appellate Court. – (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power – (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. Powers of Appellate Court. – (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power – (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.” The aforesaid provision says that subject to such condition and limitation as may be prescribed, an Appellate Court has got the power (i) to determine the case finally; (ii) to remand a case; (iii) to frame issues and refer them for trial; (iv) to take additional evidence or to require such evidence to be taken. Section 107 enables an Appellate Court to take additional evidence or require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27. Principle to be observed are ordinarily is that the Appellate Court should not travel outside the record of the Lower Court and cannot take evidence in appeal. Section 107(d) is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled as of right to the admission of such evidence and the matter is entirely in the discretion of the Court. It is settled that the documents procured after the decree of the trial Court cannot be accepted as additional evidence, therefore, this would be one of the ground for rejecting the documents relied in supplementary affidavit. Coming back to the ground on which the appeal was admitted by the Hon’ble Division Bench of this Court let us consider whether the judgment and decree under appeal warrants interference of this Court on the decision rendered by the learned Courts below. Coming back to the ground on which the appeal was admitted by the Hon’ble Division Bench of this Court let us consider whether the judgment and decree under appeal warrants interference of this Court on the decision rendered by the learned Courts below. So far the first ground is concerned whether the Learned Civil Judge, Senior Division erred in law in not considering possession of the plaintiff over the suit property and that the price of the land at the relevant time was Rs.7000/- which was shockingly low and in such view of the matter the impugned transaction dated 17th February, 1974 was nothing but a loan transaction. It is the plaint case that one Golak Chandra Jana was the owner of the suit land and plaintiffs are heirs of said Golak Jana. Appellant no.1 took the direct supervision and management of the suit land by virtue of general power of attorney executed and registered by other plaintiffs in his favour. By virtue of said power of attorney, appellant no.1 was also authorized to transfer the suit properties. The story as made out by the plaintiff is that for purchase of a tractor for the purpose of cultivation, appellants applied for loan to United Bank of India, Egra Branch and they were told that a sum of Rs.7,000/- would be required for an initial down payment. Respondent being a known money lender, who used to carry on money lending business at the relevant time without interest and by providing loan to other by getting sale deeds executed from loanees with the assurance to get recovery of the same after payment of the loan amount. According to the appellant in this case also the defendant agreed to provide plaintiffs loan of Rs.7,000/- provided a deed in the form of sale deed was executed by the appellant in his favour as security for loan. Appellant under compelling circumstances acceded the proposal of the defendant and the defendant gave Rs.7,000/- to the plaintiffs in lieu of a sale deed in respect of 10 decimals of land out of 31 decimals with a pucca ghar thereon in plot no.383 by 1st April, 1986 under Khatian no. 594. In this regard, the plaintiff/appellant led no evidence and the learned trial Court, while answering issue nos. 1, 2 and 3, held that the issue no.3 was not pressed. 594. In this regard, the plaintiff/appellant led no evidence and the learned trial Court, while answering issue nos. 1, 2 and 3, held that the issue no.3 was not pressed. Issue no.3 was as follows: “Is the suit properly valued and Court fee paid sufficient”. Issue no. 2 was “Whether suit was maintainable in its present form?” Issue no.1 was “Have the plaintiffs’ cause of action to file the suit?” Issue no.3 is a very important issue in the present suit particularly in view of the argument advanced on behalf of the appellant that the transaction was an under-valued transaction and the defendant/respondent while purchasing the suit property did not disclose the actual value of the suit property. Adverting to the question whether the suit was properly valued or not Mr. Ghosh argued that the transaction was an under-valued transaction which itself shows that the sale was not an out and out sale and to this Mr. Ghosh submitted that since it was not an out and out sale, rather the transaction is a loan in substance within the meaning of Section 2(12) of the Bengal Money Lenders’ Act, 1940, the plaintiff is entitled to a decree as prayed for. Mr. Ghosh further submitted that from the written statement itself it will appear that the defendants disputed the plaint valuation put in by the plaintiff and they have raised an issue that the property would be much more valued than what has been disclosed in the plaint. It is the case of the appellant that deed of sale dated 17th February, 1974 was not an out and out sale but only an ostensible sale deed executed towards security for taking loan of Rs.7,000/- from the defendant. The transaction, according to the appellant, was a loan in substance on mortgage by conditional sale. According to the appellant, at the relevant time of execution of the deed in question the market value of the suit land was around Rs.40,000/- (Rupees Forty Thousand) only. Therefore the learned Court below has failed to take into consideration of the issue of valuation of the property but since, in the Court below, specific issue was raised on the valuation of the property and the plaintiff did not press such issue. It cannot be contended that the learned Court below has failed to take into account of the correct valuation of the suit property. Mr. It cannot be contended that the learned Court below has failed to take into account of the correct valuation of the suit property. Mr. Ghosh in his submission relied on a decision in the case of Manindra Nath Bose – Vs. – Narendra Krishna Mitra & Anr., reported in 1980(2) CLJ 70 and drawing attention thereof submitted before this Court that the ingredients in a case arising from Money Lenders’ Act has not been properly investigated and/or gone into by both the learned Courts below. According to him, Court should have ascertained the true value of the property at the time of the proposed sale on 17th February, 1974. Although, issue was framed by the learned Court below on the question of valuation, no argument was advanced. At the second appeal stage a submission is sought to be made that the learned Court below has not taken into consideration of the cardinal principles laid down by the aforesaid judgment in the case of Manindra Nath Bose (supra). In this case no attempt was made by the plaintiff to prove the actual value of the property on the day when the transaction (Exhibit A) was executed. It is only by way of additional evidence the plaintiff has sought to make out a case that property was transferred at a lower price. Therefore, such submission, in my considered view, is not tenable at such a belated stage particularly when I have already held that the application under Order XLI, Rule 27 of the Code of Civil Procedure, in the facts and circumstances as pointed out, is not maintainable and has been rejected. The next important issue on which the entire suit rests is issue no.6 which is as follows : “Whether the deed executed by the plaintiffs in favour of the defendant on 17th February, 1974 was out and out a sale deed or mere deed of security for taking loan?” This issue has been dealt with by the learned Court below in detail. While discussing the findings made by the learned Courts below concerning Issue No.6 and the evidence led by the parties in order to arrive at a conclusion that the plaintiffs’ suit is based on the fact that the sale deed dated 17th February, 1974 was not an out and out sale but a mere deed of security for taking loan, I would like to discuss the third substantial question of law “Whether the learned Civil Judge, Senior Division, erred in law in not following the legal tests in order to decide that the impugned transaction dated 17th February, 1974 was a loan transaction or an out and out sale?” and “Whether the judgment of the first Appellate Court based on surmises and conjectures and considerations of which are not relevant in judgment under the Bengal Money Lenders’ Act, 1940 can be called a proper judgment under the Bengal Money Lenders’ Act, 1940 and can be called a proper judgment rendered by the first Appellate Court.” Arguing in support of the appellants Mr. Ghosh submitted that instead of laying down a true test whether the sale was an out and out sale or a loan in substance Mr. Ghosh submitted that the Courts below neither followed the legal tests as are required to be taken consideration of in the light of the provisions of Bengal Money Lenders’ Act, 1940, nor the Courts below have proceeded on the consideration that whether the transaction is a mortgage by conditional sale as contemplated under Section 58(c) of the Transfer of Property Act and According to Mr. Ghosh, application of this principle in the present case is a wrong application of law. He submitted that the tests which were required to be taken into consideration are whether was there any pre-existing debt that would prima facie appear from the recitals made in the deed of the disputed transaction itself inasmuch as the plaintiffs had to incur loan for purchasing a tractor and the amount of Rs.7,000/- was taken by the plaintiffs/appellants by way of loan. He submitted that suit property measuring 10 decimals of land with pucca structure was purportedly sold to the defendants and there was a clear recital to that effect in the sale deed of the disputed transaction which proves that the valuation was shockingly low and plaintiffs filed in connection with the application for additional evidence and the same will be substantiated if the plaintiffs’ additional evidence of the contemporaneous deeds of sale and the valuation mentioned therein in respect of the lands in and around the plots in question under the disputed deed are taken into consideration. Since this Court has already dismissed the application under Order XLI, Rule 27 of the Code of Civil Procedure, this Court has to take further pain as to whether independent of the additional evidence is there any material available on record to show that the learned Courts below have committed gross illegalities in not holding that the sale was a loan transaction and not an out and out sale. Mr. Bhattacharya, appearing for the respondents, submitted that suit was filed for a declaration and injunction on 28th January, 1987, that is, after a period of 13 years of the disputed transaction and a prayer for declaration was made that sale deed dated 17th February, 1974 executed by the plaintiff no.1 on behalf of the plaintiff in favour of the defendant in respect of the suit property not to be in reality an out and out sale. According to him, the suit was absolutely for declaration and injunction under the provisions of Specific Relief Act, 1963 but not under the Bengal Money Lenders’ Act, 1940. He submitted that the prayers are contrary to the provisions of Section 58 and Section 54 of the Transfer of Property Act and the plea for loan and mortgage by conditional sale was purely inconsistent with each other. The said pleas were not accepted by both the Trial Court and the learned Appellate Court below. According to Mr. Bhattacharya, although, a case made out that plaintiff intended to purchase a tractor to develop cultivation of their agricultural land and required earnest money of Rs.7,000/- for depositing to the United Bank of India against a proposed loan, is nothing but a story developed by the plaintiff in support of making out a case for money lending but in effect the same has not been proved by cogent evidence. He submitted that unless there is an agreement for re-conveyance, it cannot be the contention by the plaintiff that they are entitled to get back loan or that the disputed deed is a security for the loan. He submitted that delayed institution of the suit itself shows that the action of the plaintiff is an afterthought and it is only because of the subsequent rise of valuation of the property in the area. Relying on the written statement submitted by the defendant, Mr. Bhattacharya submitted that it is a clear defence case that the sale was an out and out sale, not a security for taking loan, nor was it a mortgage by conditional sale, nor was there any agreement for re-purchase as would be evident from the sale deed itself. On the question of law as I am dealing now, it appears from the findings of the learned Courts below that the plaintiffs have failed to produce any scrap of paper to show that actually they required Rs.7,000/- for depositing in the Bank as referred to by them as the initial money and that actually the said amount was paid by them to the Bank. In support of such observation the learned trial Court discussed the evidence of PW 1 (plaintiff no.1) who admitted in his evidence during cross-examination that he had accounts with the United Bank of India, Egra Branch at the relevant time. It is also his evidence that the period stipulated for repayment of loan to the Bank was five years and within that stipulated period he paid Rs.2,000/- to Rs.3,000/- to the Bank. But he deposed that he would not be able to produce any paper to show it. Learned trial Court has held that there is no iota of evidence to prove the plaintiffs’ claim of making payment of interest for the first two years to the defendant. There is also no explanation as to why the plaintiffs did not make any further payment after the said first two years. Therefore, the deposition which was made by the plaintiff in support of his making payment of Rs.2,000/- to Rs.3,000/- to the defendant towards interest, appeared to be not believable by the learned trial Court. The said plaintiff, in his cross-examination, deposed that he could not remember the deposit on which he paid interest to the defendant. Therefore, the deposition which was made by the plaintiff in support of his making payment of Rs.2,000/- to Rs.3,000/- to the defendant towards interest, appeared to be not believable by the learned trial Court. The said plaintiff, in his cross-examination, deposed that he could not remember the deposit on which he paid interest to the defendant. The learned trial Court further discussed the plaintiffs’ case on his purchase of a tractor after taking loan amounting to Rs.31,000/- as stated to have been sanctioned in their favour and further averment that within a period of five years they paid a sum of Rs.2,000/- to Rs.3,000/- to the Bank. According to the plaintiff, the rate of interest was 12% per annum on the said loan. It was further deposed by the plaintiff that the tractor was seized and it was sold on auction for Rs.20,000/-, could not be proved by cogent evidence. No document was produced in that regard. The learned Court below held that if the story of the plaintiff for obtaining a loan of Rs.31,000/- and payment of Rs.2,000/- and Rs.3,000/- in that account to the Bank and thereafter sale of the tractor on auction for Rs.20,000/-, are to be believed, the Bank must have realised the balance dues from the plaintiffs but from the evidence of the plaintiff it did not appear that any steps were taken by the Bank to realise the balance dues and further that there is no evidence in support of payment of Rs.7,000/- to the Bank which was the sale value of the property under the disputed deed. The case which has been decided by the trial Court and on examination of the finding of the trial Court the learned Appellate Court below did not find any fault. I find no reason to interfere with the finding of the learned Appellate Court below that either this was perverse or any illegality was committed by the learned Courts below. Concurrent finding of fact on the issue that neither the impugned transaction was a mortgage by conditional sale nor even a loan in substance within the meaning of Section 2(12) of the Bengal Money Lenders’ Act, 1940, there is no reason to hold that the sale is not an absolute sale. Concurrent finding of fact on the issue that neither the impugned transaction was a mortgage by conditional sale nor even a loan in substance within the meaning of Section 2(12) of the Bengal Money Lenders’ Act, 1940, there is no reason to hold that the sale is not an absolute sale. Looking into the relevant criteria for the Court to consider in a case under Money Lenders’ Act or where the plaintiff has claimed that the sale in question is not an out and out sale but a loan in substance, is governed by certain principles. In a decision in the case of Chunchun Jha – Vs. – Ebadat Ali, reported in AIR 1954 SC 345 while deciding the question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of re-purchase, is a vexed one and must be decided on its own facts. The Hon’ble Apex Court held in such cases the intention of the parties is the determining factor and there is nothing special about that unless class of cases, as in every other cases, where a document has to be construed, the intention must be gathered in the first place, from the document itself. The Hon’ble Apex Court held that if the words are express and clear, effect ought to be given to those and any extraneous enquiry should be ruled out. Court has given emphasis not on what the parties intended or meant to do but what is the legal effect of the words which they used in the document itself. If at all any ambiguity is apparent on the language of the documents then Court is under obligation to look to the surrounding circumstances to determine the real intention expressed in the document. As I have already pointed out that the learned Courts below concurrently found on evidence that firstly, there was no such intention apparent on the face of the document that this was a loan transaction and not an out and out sale; secondly, suspicion will arise for any man of ordinary prudence to think as to why the suit was filed after a lapse of 13 years. If the plaintiffs were really trying to prove that this was a distress sale or a sale under compulsion for making payment of a debt or there was a pre-existing debt for repayment of which they were compelled to sale the property at an alleged lower value, the same ought to have been proved by the plaintiff. As pointed out by Mr. Bhattacharya that so far valuation is concerned, issue was framed but the plaintiff never pressed the same. The plaintiff never took any steps to prove the market value during the trial but in a second appeal they have tried to find out some contemporaneous document to show that the property was transferred at a value shockingly low. In this regard, as rightly pointed out by Mr. Bhattacharya that the decision in the case of Smt. Chhabi Barui & Ors. – Vs. – Debendra Nath Das, reported in AIR 1980 Cal 16 is a governing factor. The fact leading to the said decision is identical with the decision in hand. In that decision an application for revision was filed against an order passed by the learned Munsif rejecting the application under Section 38(1) of the Bengal Money Lenders’ Act, 1940, praying for taking into account of the loan described in the petition and for declaring the amount due to the lender. It was the case of the petitioner in the said decision that being in need of money they approached the opposite party for a loan and secured that loan after executing Kobala deed in favour of the opposite party, who in his turn executed a deed for re-conveyance of the property mentioned in the Kobala deed and as such, the transactions by those two deeds of the same date were in substance a loan transaction. The Opposite Party grew paddy in six bighas of Kanali lands from 1970 to 1977, and after deducting the cost of cultivation he had got more than what he was entitled to. This application was opposed by the Opposite Party on the averment that the transaction was not at all a loan transaction but an out and out sale with an option to re-purchase. The learned first Court upheld the defendant’s contention and rejected the application. This application was opposed by the Opposite Party on the averment that the transaction was not at all a loan transaction but an out and out sale with an option to re-purchase. The learned first Court upheld the defendant’s contention and rejected the application. The order so passed was challenged in revision and the revision petitioner contended that the land had been sold at a price much less than the prevailing market rate. In support of such contention, however, no sale deeds were produced. The opposite party, on the other hand, filed documents to show that the transfer was not at a price less than the market value. Therefore, question arose before this Court whether a given transaction is a loan in substance or a sale outright with a condition of re-purchase. It was held, it depends on the facts of each case and in such a case, the intention of the parties are the determining factor. The tests which were laid down in the said decision were : 1. The existence of a debt; 2. The period of payment; 3. Possession of property; 4. A stipulation for payment of interest, if any; and 5. Price below the true value indicates a mortgage. A fair market value is strong evidence that the transaction is a sale and in fact, while discussing this decision the ground no. IV which is also a ground on the basis of which the appeal was sought to be admitted under Order XLI, Rule 11 of the Code of Civil Procedure, is covered. So far the existence of debt is concerned, I have already held that the plaintiff could not prove the same; so far the period of payment is concerned, the story advised by the plaintiff is not supported by any cogent evidence; so far the possession of the property is concerned, this is interlinked with ground no.IV in the Memorandum of Appeal which was considered for admission of the same. The issue of possession I will deal with later. So far the price below the true value is concerned, I have already indicated earlier that defendant waived their right to argue this issue that the property was under-valued. Now, with regard to the question of possession, it cannot be the only ground to prove that the transaction is a loan transaction. So far the price below the true value is concerned, I have already indicated earlier that defendant waived their right to argue this issue that the property was under-valued. Now, with regard to the question of possession, it cannot be the only ground to prove that the transaction is a loan transaction. The cardinal principle in support of the contention that the transaction is governed by Money Lenders’ Act, the plaintiff had to prove that there was a pre-existing loan and since such criteria could not be fulfilled, the provisions of Money Lenders’ Act cannot come into play and if that be so, it is rather immaterial whether or not the plaintiff delivered possession to the transferee on the day when the transaction was made. That apart, I find that the learned Court below has not avoided the issue raised by the plaintiff that they were in possession. To such plea the learned trial Court mentioning in its judgment that the plaintiffs took 13 years’ time to file the suit and that too it was after the defendant filed a criminal case wherein a report of the Junior Land Reforms Officer was filed and the enquiry report was made Exhibit ‘C’ which apparently went against them with regard to the question of possession on the suit land. However, the first Appellate Court also affirmed such finding of the learned Court below on perusal of materials available before it. The learned Appellate Court below held that the report clearly stated that the defendant was in possession of the suit land. The learned Appellate Court below further held that on perusal of oral testimony of DW 6 it appeared that he was a tenant in the suit house occupying one room and, accordingly, the learned Appellate Court below held that it is clear that the defendant was in possession of the suit house. Therefore, the possession being with the defendant, all the criteria laid down under the aforesaid judgment in Chhabi Barui (supra) have been fulfilled by both the Courts below and based on the ratio this Court in the aforesaid decision held that the transaction cannot be said to be a loan transaction governed by the Money Lenders’ Act, 1940. In the said decision this Court rejected the revisional application accordingly. In the said decision this Court rejected the revisional application accordingly. Now, I shall deal with the relevant provisions of the Money Lenders’ Act, 1940 and the impact thereof in the present case, if any. The added substantial question of law formulated by the High Court at the time of admission of the appeal that the judgment of the first Appellate Court was based on surmises and conjectures, cannot be justified on a proper and meticulous scrutiny of the judgment given by the learned first Appellate Court below. That apart, as has been rightly pointed out by Mr. Bhattacharya that finding may be based on any material or based on mere conjecture and surmise is not a substantial question of law within the meaning of Section 100 of the Code of Civil Procedure and he has relied on a decision in the case of Kanakala Adinarayana & Anr. – Vs. – Karnakala Suryakantham & Ors., reported in (2005)13 SCC 377 where the Hon’ble Apex Court has opined that the only question on which the appeal was admitted by the High Court is “Whether the Appellate Court’s finding is based on any material or based on mere surmises and conjectures?” cannot be a substantial question of law as required in Section 100, C.P.C. The Hon’ble Apex Court, therefore, remanded the matter back to the High Court to consider whether the appeal raises any substantial question of law as contemplated in Section 100, C.P.C. and if so, to frame the same and decide the appeal in accordance with law. Therefore, the added grounds on which the appeal was admitted appears to be an invalid and insufficient ground on which the appeal could be admitted for hearing under Order XLI, Rule 11 of the Code of Civil Procedure. All throughout it has been stated by the appellant that the plaintiff has made out a case for loan in substance but not an out and out sale and in this regard let us now consider what is loan within the meaning of the Bengal Money Lenders’ Act. All throughout it has been stated by the appellant that the plaintiff has made out a case for loan in substance but not an out and out sale and in this regard let us now consider what is loan within the meaning of the Bengal Money Lenders’ Act. Section 2(12) defines loan which is set out below : “2(12.) “loan” means an advance, whether of money or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include – (a)******** (b)******** (c) a loan taken or advanced by the Central Government or any State Government or by any local authority in West Bengal; (d) a loan advanced before or after the commencement of this Act – (i) by a bank; or (ii) by a co-operative life insurance society, co-operative society, insurance company, life assurance company, Life Insurance Corporation of India, mutual insurance company, provident insurance society or provident society or from a provident fund; (e) an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, other than a promissory note; (f) ******** (g)******** (h) a loan made to or by the Administrator-General and Official Trustee of West Bengal or the Commissioner of Wakfs or the Official Assignee or the Official Receiver of the High Court in Calcutta; (i) Loan or debenture in respect of which dealings are listed on any Stock Exchange;” One of the essential conditions of loan is the condition of repayment with interest. Evidence does not show that there was any such condition between the parties at least the evidence on record does not show such position that this was one of the condition between the parties. On the other hand, the evidence shows that interest was not paid, therefore, the case of loan as made out by the petitioner does not satisfy the criteria laid down under Section 2 (12) of the Bengal Money Lenders’ Act. Similarly the provision of Section 36 of the Money Lenders’ Act is also not attracted in the facts and circumstances of the present case. Section 36 of the Money Lenders’ Act is set out below : “36. Similarly the provision of Section 36 of the Money Lenders’ Act is also not attracted in the facts and circumstances of the present case. Section 36 of the Money Lenders’ Act is set out below : “36. Reopening of transactions.—(1) Notwithstanding anything contained in any law for the time being in force or in any agreement, if in any suit to which this Act applies, or in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the borrower, it shall exercise all or any of the following powers as it may consider appropriate, namely, shall— (a) reopen any transaction and take an account between the parties ; (b) reopen any account already taken between the parties, purporting to close any previous dealings and to create new obligations ; (c) release the borrower of all liability in excess of the limits specified in clauses (1) and (2) of section 30 ; (d) if anything has been paid or allowed in account on or after the first day of January, 1939 in respect of the liability referred to in clause (c), order the lender to repay any sum which the Court considers to be repayable in respect of such payment or allowance in account as aforesaid : Provided that in the case of a loan to which the provisions of sub-section (2) of section 29 apply the lender or money-lender and each of his assignees shall be liable to repay the sum of which the Court considers to be repayable in respect of and in proportion to the sum received by such lender or money-lender and such assignee; (e) set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan, and if the lender has parted with the security, order him to indemnify the borrower in such manner and to such extent as it may deem just: . Provided that in the exercise of these powers the Court shall not— (i) reopen any adjustment or agreement, purporting to close previous dealings and to create new obligations, which has been entered into at a date more than twelve years prior to the date of the suit by the parties or any person through whom they claim, or (ii) do anything which affects any decree of a Court, other than a decree in a suit to which this Act applies which was not fully satisfied by the first day of January, 1939, or anything which affects an award made under the Bengal Agricultural Debtors Act, 1936. Explanation.—A decree shall not, for the purposes of this section, be deemed to have been fully satisfied so long as there remains un-disposed of an application by the decree-holder for possession of property purchased by him in execution of the decree. Explanation.—A decree shall not, for the purposes of this section, be deemed to have been fully satisfied so long as there remains un-disposed of an application by the decree-holder for possession of property purchased by him in execution of the decree. (2) If in exercise of the powers conferred by sub-section (1) the Court reopens a decree, the Court— (a) shall, after affording the parties an opportunity of being heard, pass a new decree in accordance with the provisions of this Act, and may award to the decree-holder such costs in respect of the reopened decree as it thinks fit: Provided 'that where, in consequence of the execution of the decree which is reopened, the property of the judgment-debtor has been purchased bona fide by any person other than the decree-holder jointly with the decree-holder, the decree-holder's claim and the judgment-debtor's liability in respect of the decree which is reopened shall be reduced by the amount of the purchase money paid by such other person and received by the decree-holder, (b) shall not do anything which affects any right acquired bona fide by any person, other than the decree-holder, in consequence of the execution of the reopened decree, (c) shall order the restoration of possession to the judgment-debtor of such property, if any, of the judgment-debtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened, (d) shall order the judgment-debtor to pay to the decree-holder, in such number of instalments as it may think fit, the whole amount of the new decree passed under clause (a) and upon such payment of all the instalments the sale shall be deemed to have been set aside, and (e) shall direct that, in default of the payment of any instalment ordered under clause (d), the decree-holder shall be put into possession of the property referred to in clause (c) and that the amount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remains unsatisfied. (3) In this section the expression "suit to which this Act applies" includes a proceeding in respect of any application relating to the admission or amount of a proof of a loan advanced before or after the commencement of this Act in any insolvency proceedings. (4) This section shall apply to any suit, whatever its form may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement of security in respect of a loan or for the redemption of any such security. (5) Nothing in this section shall affect the rights of any assignee or holder for value if the Court is satisfied that the assignment to him was bona fide, and, in the case of an assignment after the commencement of this Act also that he had not received the notice referred to in clause (a) of subsection (1) of section 28. (6) Notwithstanding anything contained in any law for the time being in force,— (a) the Court which, in a suit to which this Act applies passed a decree which was not fully satisfied by the first day of January, 1939, may exercise the powers conferred by sub-sections (1) and (2)— (i) in any proceedings in execution of such decree, or (ii) on an application for review of such decree made within one year of the date of commencement of this Act, and the provisions of Rules 2 and 5 of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 shall not apply to any such application; (b) any Court before which an appeal is pending in respect of a decree referred to in clause (a) may either itself exercise the like powers as may be exercised under subsections (1) and (2), or refer the case to the Court which passed the decree directing such Court to exercise such powers, and such Court shall after exercise thereof return the record with the additional evidence, if any, taken by it and its findings and the reasons therefor to the Appellate Court and thereupon the provisions of Rule 26 of Order XLI of the First Schedule to the Code of Civil Procedure, 1908 shall apply.” Applying the law under Section 36(1) of the Bengal Money Lenders’ Act this Court in the case of Smt. Swarnalata Tat – Vs.- Chandi Charan Dey & Anr., reported in 88 CWN 551, as has been referred to by Mr. Bhattacharya, held that Section 36(1) of the Bengal Money Lenders’ Act, 1940 empowers the Court to reopen a decree in suit to which the Act applied or in any suit brought by a borrower for relief under the section, to reopen the transaction whether the suit has been heard ex parte or otherwise. The Court further held that subsection (6) of Section 40 of the said Act overrides operation of Section 92 of the Evidence Act in a suit under the Bengal Money Lenders’ Act, 1940. The Court further held that subsection (6) of Section 40 of the said Act overrides operation of Section 92 of the Evidence Act in a suit under the Bengal Money Lenders’ Act, 1940. The effect of the said sub-section is that in a suit governed by the Act of 1940 the borrower may adduce oral evidence of any agreement, statement contradicting, varying, adding to or substracting from the terms of any document witnessing a loan but sub-section (6) of the Section may not come to the rescue of the person unless it can be established that the impugned document creates or witnesses a loan. Section 37A of the Bengal Money Lenders’ Act, 1940, however, seeks to override the proviso to Section 58(c) of the Transfer of Property Act. In the said judgment it has been further held that in order get the protection of Section 37A of the Bengal Money Lenders’ Act a borrower must show that there is a loan, that such loan has been secured by executing a mortgage and that the borrower ostensibly sells the mortgaged property on any of the conditions enumerated under Section 58 (c) of the Transfer of Property Act. In my opinion, if a relationship of creditor and debtor is not evident from the evidence led by the plaintiff and there is no prior transaction by and between the parties to the conveyance, even if the consideration of sale does not represent the market price, the transaction cannot be treated as loan transaction. The Hon’ble Court further held that “It cannot be laid down as a general principle that whenever there is a sale of property at a value lower than it is worth it will lead the irresistible inference that the transaction is in substance a loan. A price below the true value by itself cannot indicate a mortgage, nor a fair market value can be conclusive evidence that the transaction is a sale.” Therefore, I do not find any reason to hold that the plaintiff has made out a case or case under the Bengal Money Lenders’ Act and he has been able to prove that the transaction is a loan in substance not a sale out and out. In view of the discussion herein before made, I am of the clear opinion that there is no impugnity in the judgment and decree passed by the Learned Courts below. In view of the discussion herein before made, I am of the clear opinion that there is no impugnity in the judgment and decree passed by the Learned Courts below. The plaintiff has failed to prove on evidence that the transaction was a loan transaction and not an out and out sale. The judgments and decrees of the Learned Courts below do not warrant interference of this Hon’ble Court in a second appeal. The appeal is, therefore, dismissed. Judgment and decree passed by the Learned Courts below are hereby affirmed. Urgent Photostat certified copy of this judgment, if applied for, be given to the learned advocates for the respective parties upon compliance of all formalities.