TaxTMI 
TaxTMI 
2025 (9) TMI 393
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....in a resort is housed, was agreed to be sold by the defendant to the plaintiff. The total sale consideration payable was Rs.85,00,000/-. Towards advance sale consideration, the plaintiff issued two cheques; Ext.B1 cheque dated 25.11.2015 for Rs.5,00,000/- and Ext.B1(a) cheque dated 01.12.2015 for Rs.20,00,000/-. The period fixed under Ext.A1 was six months. 3. On 18.11.2015 itself, the parties entered into Ext.B2 Lease Agreement, and the plaintiff was put in possession of the property. Towards security deposit under Ext.B2, the plaintiff issued Ext.A3 cheque dated 19.11.2015 for Rs.5,00,000/-. However, on 19.11.2015 the plaintiff paid the amount in cash and got Ext.A3 cheque returned. 4. According to the plaintiff, on 19.12.2015, 19.0....
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....e under Ext.B2 Lease Agreement, the trial court directed deduction of the rent amount of Rs.50,000/- per month from the decree amount, from December 2015 till the defendant gets vacant possession of the property. The defendant is in appeal. There is no appeal by the plaintiff. 7. We have heard the learned counsel on either side. 8. The points that arise for determination are: - (i) Was the trial court right in having drawn the presumption under Section 118 of the Negotiable Instruments Act and granted a decree in favour of the plaintiff upon the same? (ii) On the pleadings and evidence, is the plaintiff's claim regarding the payment of Rs.15,80,040/- each on 19.12.2015, 19.01.2016 and 19.02.2016 towards advance s....
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....A7 cheques, but on the alleged oral agreement dated 20.03.2016. Of course, Exts.A5 to A7 cheques are relied on by the plaintiff to prove part of the plaint claim. The oral agreement as pleaded has not been proved, nor was it attempted to be proved. 10. With regard to Exts.A5 to A7 cheques, the plaintiff's claim is that, when he made payment of Rs.15,80,040/- each on the three occasions, namely, 19.12.2015, 19.01.2016 and 19.02.2016, the defendant had issued Exts.A5 to A7 cheques respectively, acknowledging receipt of such amounts. The relevant pleading at paragraph 4 of the plaint reads thus: - "4. It is submitted that On 19-12-2015, 19-1-2016 and 19-2-2016, the plaintiff paid an amount of Rs.15,80,040/-each as three install....
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.... in the said regard from the defendant, upon a photostat copy of Ext.A3, which is produced as Ext.A4. The plaintiff, who had taken so much care and caution, would have definitely got the payment of the further amounts of Rs.15,80,040/- each on the three dates, endorsed on Ext.A1 agreement. 13. So also, as could be noticed from the averments at paragraph 4 of the plaint (supra), it is quite strange that cheques are claimed to have been issued by the seller to the purchaser to acknowledge receipt of advance sale consideration. Such a story does not stand to reason and is difficult to accept. 14. It is to be noted that the alleged payments on 19.12.2015, 19.01.2016 and 19.02.2016 are claimed to be of Rs.15,80,040/- each; it is not a roun....
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....2016 and 19.02.2016, towards sale consideration under Ext.A1, does not appear probable. The materials as discussed above are sufficient enough to rebut the presumption, if at all any, available to the plaintiff upon the cheques, Exts.A5 to A7. 18. To prove the alleged payments, all that the plaintiff relies on is the evidence of PW3. Admittedly, PW3 is an employee of the plaintiff. He is employed on daily wages. He claims to have witnessed the payment of Rs.15,80,040/- each, on the three dates i.e., 19.12.2015, 19.01.2016 and 19.02.2016. He also deposed that the defendant had, on the respective occasions, issued cheques of the HDFC Bank, Alappuzha Branch, to the plaintiff. He claimed that he had witnessed the payments, signing of the che....
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....til the contrary is proved, that the promissory note was made for consideration. That initial presumption raised under Section 118 (a) becomes unavailable when the plaintiff himself pleads in the plaint different considerations. ............ The burden of proof is of academic interest when the evidence was adduced by the parties. The court is required to examine the evidence and consider whether the suit as pleaded in the plaint has been established and the suit requires to be decreed or dismissed. 15. ............once the plaintiff pleads consideration different from the one found in negotiable instrument, the statutory presumption does not arise..." 21. In the case at hand, it is the plaintiff's case that Exts.A5 to A7 che....