KARAM ELAHEE CHAUHANJ.--Leave is granted to inter alia consider as to what is the correct and true construction of the agreement between the parties in this case, terms whereof, as admitted by both sides, were either incorrect or camouflaged in various material particulars, and which agreement in these circumstances had to be construed and interpreted in that background and not with reference to its apparent tenor. If so construed, it is submitted, that it will come out to be a deal in which principal relief to be obtained by the plaintiff was the return of his loan (which was nothing but a past balance due from the defendant /petitioner on taking accounts in respect of a partnership business between the parties) and there was, in fact, no cash payment at the time of the execution of the agreement and the recital in the agreement and connected receipt in that respect were all camauflaged which were got introduced by the plaintiffs /respondents. If examined in that way then the intention is clear from the last sentence of agreement which stated that:- It is submitted, that this will show, that the sale was to be exacted from the petitioner as a penalty on failure to pay the sum of Rs.11,000 (due on partnership account) and there was as such no earnest and no question of its forfeiture on the part of the petitioner who had in all eventuality to return the loan. The Courts below, according to the learned counsel, made a wrong approach and applied wrong principle of law in considering the sale as the primary object of the deal, whereas it was only in the form of a penalty, and the specific performance, if at all necessary, should have been ordered of the primary object and not of the penalty clause. This case, it is argued, was converse of those cases, where for example, primary undertaking is to sell and on failure thereof a pecuniary penalty is imposed, which penalty Courts generally do not impose and in proper cases direct only sale to be completed. Here primary undertaking is to return loan and on its failure the penalty is to sell. It was a case of a debtor and a creditor, where primary liability was to clear the loan and sale was not the primary object. The petitioner was illiterate whereas respondent was a well educated person who occupied a position of influence over the petitioner due to past dealings and who should not be allowed to exploit that position in his favour.
2. In our opinion, as stated above, all these aspects need examination, to find out whether the Courts below have decided the case in accordance with the correct principles of law applicable to situations of this type. Security Rs.2,000.
3.Status quo ordered earlier to continue till further orders.