MOHAMMED SHERIFF ALNAHARY Vs. K T KUNJUMON

JUDGEMENT

(1.) THIS suit has been filed by the plaintiff for recovery of a sum of Rs. 59,75,000/- together with interest at 24% per annum from the date of plaint till realisation and for costs.

(2.) THE plaint averments are as follows: Plaintiff is the sole proprietor of M/s. Sound of Art, engaged in the trade of purchase of Audio rights of leading film songs for local and overseas marketing, acquisition of master spools recording therefrom into audio cassettes, manufacture, sale and distribution of audio cassettes and allied activity. In 1994, the defendant produced a Tamil film "Kadalan" and its negative rights was held by Rachana Pictures, of which the defendant is the sole proprietor. In March 1994, the defendant approached the pl aintiff for the distribution and sale of the sound track and songs of the film "Kadalan", for which an agreement was entered into between the parties on 30.5.1994. Under the said agreement, the defendant had assigned all the rights and interests including the sound recordings in respect of the film "Kadalan" to the plaintiff for a consideration of Rs. 12,50,000/-, which sum was paid by the plaintiff vide cheque dated 9.3.1994. THE defendant sought a loan for Rs. 50.00 lakhs from the plaintiff promising to repay the same within four mon ths. THE plaintiff disbursed the said loan of Rs. 50.00 lakhs by way of ten cheques each for Rs. 5.00 lakhs dated 16.5.94 and 8.6.94 respectively. After the expiry of four months, the plaintiff contacted the defendant in October 1994 and requested him to repay the said loan. A legal notice was issued on 20.9.1995, in this regard. THE defendant sent a reply dated 7.10.1995, alleging that he had not taken any loan and the amount of Rs. 62.50 lakhs received from the plaintiff was only towards staggered pay ments for overseas rights of the film "kadalan", and that though the consideration agreed upon orally was Rs. 1.00 crore, it was restricted to Rs. 12.50 lakhs. THE loan of Rs. 50.00 lakhs is totally separate, from and independent of the purchase of audio rights of "Kadalan". Hence the suit.

(3.) THE defendant examined himself as D.W.1. He would state that the plaintiff was introduced to him by Mr. Mahesh George at Chennai, who was in the audio business. When the defendant was discussing with the plaintiff regarding the audio rights of Kadalan Mr. Magesh George was also there. THE plaintiff told him that he was interested only in getting overseas rights for the movie and that he would give Rs. 1.00 crore for getting the said audio rights. THE defendant wanted the said amount of Rs. 1.00 crore viz. Rs. 25 lakhs as cheque or DD and the balance of Rs. 75.00 lakhs in the form of cash in order to avoid income tax problem. THE plaintiff told him that he would give Rs. 12.50 lakhs only as cheque and the balance in the form of cash. He gave Rs. 12.50 lakhs by way of cheque. After the agreement, the plaintiff changed his stand and told him that he would give the balance amount also in the form of cheque and gave him Rs. 50.00 lakhs by way of cheque. When the defendant refused to receive the same, the plaintiff told him that he would have a problem with the bank authorities if the amount is paid by way of cash. THE defendant has showed the said amount of Rs. 50.00 lakhs as income in his income tax statement.