KRISHNADHAR ADYA Vs. GOPI NATH DUTTA

JUDGEMENT

(1.) On the basis of a binapatra dated 5-12-65, executed by the defendant, the plaintiff filed a suit for Specific Performance of Contract against the defendant. It is not disputed that such a binapatra was executed. In defence, two points were urged : first that the transaction was a transaction of loan in substance and that the description of the property in the instrument was not sufficient to identify the property.

(2.) The learned trial court decreed the suit holding that the insufficient of the description in the instrument. Ext. 1. was not enough for dismissal of the suit, when the property was capable of being identified. As regard the point of loan in substance the learned trial court just referred to t fact that the defendant claimed that he signed the document without knowing the contents which was not an acceptable story as he was a literate person. It may be noticed that the learned Munsif did not further process to examine whether in spite of his knowledge about the terms of the instalment, it could be construed as a loan in substance.

(3.) The learned appellate court who heard the appeal preferred against the judgment and decree of the learned trial court upheld the judgment a decree of the learned trial court. Whether the insufficiency of the description was fatal to the suit or not was considered by the learned appellant court and the point was found in favour of the plaintiff. Unfortunate again there is no direct finding of the learned appellate court that the transaction was not loan in substance. However, the learned appellate Court has discussed the characteristics which can distinguish a loan in substance from a contract to sell outright.