JUDGMENT : C. M. JOSHI, J. 1. Heard learned counsel appearing for the appellants and respondents. 2. It is the case of the appellant/plaintiff that he had entered into two agreements of sale with defendant on 27.05.2000 and 19.08.2002 and had paid earnest money of Rs.64,000/- and Rs.1,36,000/- respectively. As per the agreement, three years time was fixed for execution of the sale deeds. Though the plaintiff was always ready and willing to perform his part of the contract, the defendant did not come forward to execute the sale deed and hence, the plaintiff issued a legal notice to the respondent for which the defendant gave an evasive answer. Therefore, the plaintiff was constrained to file this suit for specific performance. 3. The defendant appeared through his counsel and filed a written statement contending that plaintiff is a money lender and he has created all these false agreements of sale when the defendant was in intoxication. He contended that the allegations made in the plaint are totally false and he also denied the receipt of the sum of Rs.1,36,000/- and Rs.64,000/-. The defendant denied that there was any agreement as contended by the appellant and he never had agreed to sell the suit schedule properties to the plaintiff. It was contended that the defendant never executed any agreement of sale in favour of the plaintiff and the agreements relied by the plaintiff are concocted and bogus. He contends that there being two separate agreements, they could not be part of the single suit and Order II Rule 3 of CPC is prohibiting such joinder of the cause of action. Therefore, it is contended that the suit filed by the plaintiff is liable to be dismissed. 4. On the basis of the above pleadings, the Trial Court had framed the following issues: “ISSUES 1) Whether the plaintiff proves that the defendant by agreeing to sell his joint half share in the suit land along with the right in the Well water, Pumpset, Pipeline and accessories on 27-5-2002 for Rs.1,70,000/- has executed a Registered Sale Agreement by receiving an earnest money of Rs.64,000/-? 2) Whether the plaintiff proves that on 19-8-2002 the defendant by agreeing to sell the remaining half portion in the suit land and the right in the Well. Well water, Pumpset, Pipeline and accessories for Rs.1,70,000/- has executed a Registered Sale Agreement by receiving an earnest money of Rs.1,36,000/-? 2) Whether the plaintiff proves that on 19-8-2002 the defendant by agreeing to sell the remaining half portion in the suit land and the right in the Well. Well water, Pumpset, Pipeline and accessories for Rs.1,70,000/- has executed a Registered Sale Agreement by receiving an earnest money of Rs.1,36,000/-? 3) Whether the plaintiff proves that he is ever ready and willing to perform his part of contract in pursuance of the recitals of the two sale agreements? 4) Whether the plaintiff is entitled to the relief of specific performance of the suit sale agreements? 5) Whether the plaintiff in the alternative is entitled to the refund of the earnest money amount of Rs.64,000/- and Rs.1,36,000/-under the two sale agreements along with interest? 6) Whether the plaintiff is entitled to the reliefs, which he has claimed. 7) What order or decree?” 5. When the matter was slated for trial, the plaintiff was examined as PW1 and Exs.P1 to P15 were marked. One witness was examined on his behalf as PW2. The defendant though had contested the suit by filing the written statement, did not cross-examine the PW1 or PW2. Neither he adduced any evidence rebutting the claim of the plaintiff in any way. 6. During pendency of the said suit, the defendant No.2, who is the son of the defendant No.1 was impleaded by order dated 17.01.2008. On his appearance, the defendant No.2 also did not file any additional written statement. 7. After hearing the learned counsel appearing for the appellant, the Trial Court answered issue Nos. 1 to 4 and 6 in the ‘affirmative’ and issue No.5 was held ‘doesn't arise for consideration’. Accordingly, the Trial Court decreed the suit directing defendant to execute the registered sale deed in favour of the plaintiff. 8. Being aggrieved, the defendants No.1 and 2 filed appeal in R.A.No.265/2010. The First Appellate Court by impugned judgment dated 07.03.2015, allowed the appeal modifying the decree passed by the Trial Court. The First Appellate Court directed the defendants No.1 and 2 to refund the sum of Rs.64,000/- and Rs.1,36,000/- along with interest at 9% per annum. 9. Being aggrieved, the plaintiff is before this Court in appeal. The First Appellate Court by impugned judgment dated 07.03.2015, allowed the appeal modifying the decree passed by the Trial Court. The First Appellate Court directed the defendants No.1 and 2 to refund the sum of Rs.64,000/- and Rs.1,36,000/- along with interest at 9% per annum. 9. Being aggrieved, the plaintiff is before this Court in appeal. This Court at the time of hearing, framed the following substantial question of law: “Whether the First Appellate Court is justified in holding that the transaction between the parties is a loan transaction despite there being no evidence on behalf of the defendants?” 10. During pendency of this appeal, the appellant/plaintiff died and his legal representatives are brought on record. 11. Learned counsel for the appellant submits that the defendant No.1 though filed the written statement, did not adduce any evidence. It is contended that the PW1 and PW2 who were examined by the plaintiff before the Trial Court were also not cross-examined by the defendant No.1. He also points out that the defendant No.2 though appeared, did not file any written statement or adduce any evidence in the matter. He submits that the Trial Court had exercised the discretion in favour of the plaintiff owing to the fact that no discernible circumstances which warrant discretion to be exercised in favour of the defendants was shown. It is submitted that in the absence of any such circumstances which was brought to the notice of the Trial Court, the evidence of the plaintiff having not been rebutted by the defendants, the Trial Court was justified in decreeing the suit. He submits that the time fixed for the performance of the agreement was three years and within a span of such three years, the plaintiff has issued notice to the defendant, for which the defendant had sent a vague reply. It is pointed out that the contention of the defendant that the agreement was got executed by the plaintiff when the defendant No.1 was under intoxication was neither suggested to the PW1 and PW2 nor any such evidence was brought on record. Therefore, he submits that the Trial Court had not exercised the discretion in favour of the plaintiff based on the material brought on record. Therefore, he submits that the Trial Court had not exercised the discretion in favour of the plaintiff based on the material brought on record. He also points out that the First Appellate Court, there being no material on record to show that it was a money transaction, except a vague allegation in the reply notice, could not have imported the said contention as evidence and reversed the discretion exercised by the Trial Court. It is contended that there was absolutely no material on record to show that the circumstances showed that it was a money transaction. Hence, learned counsel for the appellant submits that the impugned judgment of the First Appellate Court is not sustainable in law. 12. Per contra, learned counsel appearing for the respondents submit that the valuation of the property was much higher but the total consideration fixed was only Rs.3,40,000/-. He submits that the reply notice though do not spell out that it was a money transaction, it nevertheless alleges that the plaintiff is a money lender. Further, he submits that when the plaintiff was ready and willing, there was no need to fix a time of three years for performance of the contract. It is pointed out that the agreement was dated 27.05.2002 and 19.08.2002 but the notice was issued to the defendant on 03.05.2005, which was replied by the defendant on 25.05.2005. Therefore, it is contended that no reason is assigned by the plaintiff as to why he had waited till 2005 for issuing the notice to the defendant. He contends that the suit is barred by time insofar as the first agreement is concerned and this aspect was not considered by the courts below. 13. He further submits that the First Appellate Court had exercised the discretion in favour of the defendant looking to circumstances available from the evidence of the plaintiff and as such, no interference is required in the same. In this regard, he places reliance on the judgment in the case of K.S.Vidyanadam and others v Vairavan , (1997) 3 SCC 1 to contend that even though the time is not an essence of the contract of sale of immovable property and the suit can be filed within the period of three years provided under Article 54 of the Limitation Act, but it should be performed within the reasonable time. 14. 14. In the light of the above contention the only substantial question of law that arise is: “Whether the First appellate Court is justified in interfering with the discretion exercised by the Trial Court, without there being any evidence?” 15. The perusal of the records would reveal that the agreement, which is produced at Ex.P.1, pertains to 2 acres out of 4 acres of Survey No.129/1C of Kothali village. The sale consideration fixed is Rs.1,70,000/- and out of it, a sum of Rs.64,000/- was paid as advance and the balance of Rs.1,06,000/- was agreed to be paid at the time of the registration of the sale deed. The said document is a registered agreement and was executed and registered on 27.05.2002. 16. The Ex.P.2 is the second agreement dated 19.08.2002 and it pertains to the remaining half portion of Survey No.129/1C, which was left out of the earlier agreement at Ex.P.1. The sale consideration fixed was Rs.1,70,000/- and out of which, a sum of Rs.1,30,000/- was received by defendant No.1 as advance amount. The balance of Rs.34,000/- was agreed to be paid at the time of the agreement and the time of three years was fixed for execution of the sale deed. 17. It is pertinent to note that the said registered agreements were also reflected in the mutation entry produced at Ex.P.5. Ex.P.6 and Ex.P.7 are the notices issued by the plaintiff to the defendant calling upon him to perform his part of the contract by executing the sale deed and they are dated 03.05.2005. On receipt of these notices, the defendant gave reply notices, which are at Ex.P.12 and Ex.P.14. These two are same in pari materia and it is stated by the defendant No.1 that he had never agreed to sell the suit schedule properties. He alleges that he had never received any amount and the agreements were got executed by the plaintiff when the defendant was under intoxication. It was also contended that there was no legal necessity for him and therefore, the agreements are hollow. 18. The testimony of the PW1 would reiterate the contention taken up by him in the plaint. Obviously, he was not cross-examined by the defendant. 19. The PW2-Sadashiva Mathpathi happens to be the scribe of Ex.P.1 and Ex.P.2. It was also contended that there was no legal necessity for him and therefore, the agreements are hollow. 18. The testimony of the PW1 would reiterate the contention taken up by him in the plaint. Obviously, he was not cross-examined by the defendant. 19. The PW2-Sadashiva Mathpathi happens to be the scribe of Ex.P.1 and Ex.P.2. He states that the plaintiff and the defendant had approached him and the defendant had informed him that he wants to execute the agreement of sale in favour of the plaintiff in respect of the suit schedule property. Accordingly, he had drafted the agreements as per Ex.P.1 and Ex.P.2. His affidavit evidence describes the act done by him in detail and he has identified his signature on Ex.P.1 and Ex.P.2. He is also not cross-examined by the defendant No.1 and 2 though they had appeared before the Trial Court. 20. The Trial Court, in its judgment, observes that Ex.P.1 and Ex.P.2 are the registered agreements of sale executed by the defendant No.1 on 27.05.2002 and 19.08.2002 wherein the defendant No.1 had agreed to sell 2 acres initially and thereafter the remaining 2 acres for a total consideration of Rs.3,40,000/-. As per the agreement, the balance sale consideration was to be paid within three years and the sale deeds were to be executed. It was noticed by the Trial Court that there is corroboration in the evidence of PW1 and PW2 about the execution of Ex.P.1 and Ex.P.2 and there being pleadings and the evidence from the plaintiff that he was always ready and willing, the Trial Court accepted the testimony of PW1 and it also noticed that M.E.No. 465 had come to be recorded by the Revenue Authorities mentioning the said transaction. On these grounds, the Trial Court decreed the suit. It is pertinent to note that while answering Issue No. 5, it holds that the said issues do not arise since the Issue No.4 and 6 are answered in the affirmative and there is no necessity for decreeing the suit for refund of the earnest money. Obviously, the said finding was regarding exercise of its discretion in favour of the plaintiff. 21. The First Appellate Court discussed the contentions of the plaintiff and the defendant in detail and it also considers the evidence on record. Obviously, the said finding was regarding exercise of its discretion in favour of the plaintiff. 21. The First Appellate Court discussed the contentions of the plaintiff and the defendant in detail and it also considers the evidence on record. In Paragraph 15, the First Appellate Court observes as below: “15) In the written argument, counsel for appellant contended that defendant was admitted in the hospital. He has undergone heart surgery and he is under follow up treatment. Hence, it is not possible to him to know further proceedings of the suit before the trial Court. When defendants have received the notice in E.P No.16/10, came to now that suit is decreed. Accordingly, he preferred this appeal and filed condonation application. I.A.No.I came to be allowed and condoned the delay. So, reasons for non-cross-examination of PW.1 and 2 and not adducing evidence appears to be bonafide. Merely non-cross-examination of plaintiff witnesses and non-adducing evidence does not sole ground to decree as prayed. It is settled law that plaintiff has to prove his case by adducing cogent and corroborated reliable evidence. He cannot entitled the relief on the weakness of the defendants. Further, in written argument submitted that suit property is only the landed property of the appellant. Their entire family is depending on agricultural income. But, defendant did not pleaded the said contention in his written statement. The defence taken in written statement is total denial. Even he has not pleaded how his signatures obtained by plaintiff on Ex.P1 and 2 and mutation effected. So, defence of defendant cannot be sustainable, without proper defence put forth by him. Any how, plaintiff established with cogent evidence that defendant entered into agreement to sell the suit property. If defendant entered into an agreement to sell, eastern ½ share through Ex.P1, plaintiff ought to have get the sale deed instead of getting regular sale deed, plaintiff again get the 2 nd agreement of sale for remaining ½ portion. Attesting witnesses are same for both agreement of sale. When plaintiff paid Rs.2,00,000/- as an earnest money, why he taken three years time to get the regular sale deed creates doubt. Further, legal notice Ex.P6 and P7 issued on 3.5.05 after alleged agreement of sale dated 27.5.2002. Of course, defendant is not pleaded that he received amount as hand loan or he executed an agreement of sale for security. When plaintiff paid Rs.2,00,000/- as an earnest money, why he taken three years time to get the regular sale deed creates doubt. Further, legal notice Ex.P6 and P7 issued on 3.5.05 after alleged agreement of sale dated 27.5.2002. Of course, defendant is not pleaded that he received amount as hand loan or he executed an agreement of sale for security. But it could be gathered from conduct of both the party that both agreement of sale are came to be executed for the purpose of loan security. Even plaintiff has not established that he was/is ready and willing to perform his part of contract. Even plaintiff seeking alternative prayer for refund of earnest money.” 22. It is pertinent to note that the First Appellate Court taking the evidence, which was adduced in respect of condonation of delay in filing the said appeal as bona fide reason of the appellant in not cross-examining the PW1 and PW2, accepting the arguments canvassed by the learned counsel for defendant No.1 and 2, holds that it is a transaction for security of the loan. A perusal of the records of the First Appellate Court would show that the defendant No.1 had adduced evidence regarding condonation of delay. The contention of defendant No.1 was that his advocate, who was representing him before the Trial Court, had undergone certain heart ailment operations and therefore, there is a delay. The records reveal that the Trial Court had decreed the suit by its judgment dated 12.11.2009. The learned counsel, who was representing the defendant No.1, had undergone the said surgery on 27.11.2009. Obviously, it was subsequent to the judgment passed by the Trial Court. Though the said contention was relevant for holding that there is sufficient reason to condone the delay in filing the appeal before the First Appellate Court, it could not be a reason to hold that PW1 and PW2 were not cross-examined by the defendant No.1. 23. In other words, the evidence that was adduced before the First Appellate Court was in respect of the delay in filing the said appeal but not regarding the reasons as to why the PW1 and PW2 were not cross examined. 23. In other words, the evidence that was adduced before the First Appellate Court was in respect of the delay in filing the said appeal but not regarding the reasons as to why the PW1 and PW2 were not cross examined. Therefore, by importing the reasons assigned by the appellant for the purpose of condonation of delay, the First Appellate Court has come to the conclusion that the reason for not adducing evidence by the defendant is a bona fide. There was absolutely no material before the First Appellate Court to hold that the reason for not cross-examining PW1 and PW2 and not producing any evidence before the Trial Court was for bona fide reasons. Thus, it appears that the reason to believe that defendant No.1 was prevented from cross-examining PW1 and PW2 for bona fide cause, was not sustainable. 24. Secondly, the First Appellate Court holds that in the written argument submitted by defendant No.1 it was argued that the entire family is depending on the agricultural income. It also notices that the defendant had not pleaded the said contention in the written statement. It observes that the defence taken by the defendant was a total denial and even then at the fag end of paragraph 15 (referred supra), it comes to the conclusion that even though the defendant has not pleaded that he received the amount as a hand loan, it holds that it could be gathered from the conduct of the parties that it was an agreement for the purpose of security to the loan. This inference drawn by the First Appellate Court appears to be based only on the written arguments, which was submitted bereft of any evidence on record. There was no pleading to that effect also. Therefore, it is evident that the First Appellate Court has imported an aspect, which was not pleaded and was not brought on record in the form of evidence. At no stretch of imagination an argument placed on record by the counsel can take the place of the pleading and the evidence. Therefore, such inference drawn by the First Appellate Court is unknown to law. 25. At no stretch of imagination an argument placed on record by the counsel can take the place of the pleading and the evidence. Therefore, such inference drawn by the First Appellate Court is unknown to law. 25. For the above reasons, the discretion exercised by the Trial Court on the basis of the evidence available on record has to be termed as a judicial discretion, whereas the discretion exercised by the First Appellate Court in reversing such judicial discretion exercised by the Trial Court cannot be termed as a judicial discretion. Under these circumstances, the appeal deserves to be allowed. 26. The judgment of the Apex Court in the case of case K.S. Vidyanadam (supra), cited by the learned counsel for the respondent cannot be made applicable to the case on hand for the simple reason that when the agreement itself mentions the time for execution of the sale deed as three years, there was no reason to disbelieve the same. Moreover, the limitation starts to run from the date fixed for execution of the agreement but not during the period which was fixed for execution of the sale deed. Obviously, limitation starts to run from the date of expiry of the period provided in the agreement and obviously, the suit is well in time. Under these circumstances, the above decision cannot be made applicable to the case on hand. In the result, the appeal deserves to be allowed and the substantial question of law is answered accordingly. In the result, in the following: ORDER (i) The appeal is allowed. (ii) The impugned judgment of the First Appellate Court dated 07.03.2015 in R.A.No.265/2010 is set aside and the judgment of the Trial Court in dated 12.11.2009 O.S.No.83/2005 is hereby confirmed. (iii) In view of disposal of the appeal, the pending interlocutory applications, if any, do not survive for consideration and are disposed off.