A DHODDIAH CHETTIAR Vs. MADUKKARAI (NILIGIRIS) ESTATES TEA FACTORY BY ITS MANAGING PARTNER, T. K. JOGHEE GOWDER

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed a suit for recovery of a sum of Rs. 5,000 due under a dishonoured cheque Exhibit A -1 dated 10th October, 1961 issued in his favour by the second defendant as the managing partner of the first defendant firm. It is alleged by the plaintiff that 12 -64 acres of tea garden belonging to him were conveyed to one T. K. Mani the nominee of the second defendant by a sale deed dated 7th July, 1961 for Rs. 15,000 that the second defendant paid Rs. 10,000 in cash and issued a post -dated cheque for Rs. 5,000 in the name of the plaintiff and that when the cheque was presented for payment to the State Bank of India, Coonoor on 11th October, 1961 it returned it with an endorsement "payment stopped by the drawer". The defendants admitted the issue of a cheque for Rs. 5,000 in favour of the plaintiff but contended that it is not supported by consideration. Their case was that the second defendant was proposing to purchase certain properties from the plaintiff's friend, one T. K. Mani who had nominally conveyed them to various persons in July, 1961, that pending finalisation of the transaction between the second defendant and the said T. K. Mani a post -dated cheque was issued in the name of the plaintiff in the first week of July, 1961 and that payment for the cheque was stopped because the said Mani did not complete the transaction as agreed by the first week of October, 1961.

(2.) THE trial Court went into the question as to whether the cheque was issued towards part -payment of the consideration for the sale under Exhibit A -3 as alleged by the plaintiff or whether it was given as a security for performance of certain obligations undertaken by the said T. K. Mani as alleged by the defendants. After considering the evidence on record, both oral and documentary, it came to the conclusion that the cheque Exhibit A -1 was given by the second defendant for the sale of the plaintiff's properties to T. K. Mani and that therefore, it was fully supported by consideration. In that view it decreed the plaintiff's suit as prayed for.

(3.) BEFORE proceeding to consider the said legal aspect it is necessary to analyse the evidence relating to the quantum of consideration for the sale under Exhibit A -3. The plaintiff as P.W. 1 has stated that the consideration was only Rs. 15,000 though a low value of Rs. 4,500 was shown in the document for the purpose of avoiding a higher stamp duty. He would further say that the second defendant paid him cash consideration of Rs. 10,000 and the balance of Rs. 5,000 by means of a cheque, Exhibit A -1. He would also say that the cheque was given on the pretext that the second defendant did not have sufficient cash with him to pay the entire consideration of Rs. 15,000. P.W. 2 is T. K. Mani the vendee under Exhibit A -3 who later on sold the property covered by Exhibit A -3 along with his other properties to the second defendant under Exhibit A -4. He has deposed that the sale consideration under Exhibit A -3 was Rs. 15,000 and that the second defendant paid a sum of Rs. 10,000 by cash and the balance of the sale consideration was paid by the cheque, Exhibit A -1. Explaining the circumstances under which the second defendant came to pay the sale consideration, he has stated that as there was a prior understanding between him and the second defendant for his purchase of the suit property along with others, the second defendant came to pay the sale consideration. It appears from the evidence of P.W. 2 that the properties covered under Exhibit A -3 is part of an estate called "Knoll Estate" in Coonoor consisting of 90 -58 acres in extent. The estate was jointly purchased by T. K. Mani's granduncle Narayanaswami and one Rose Mary Dias on 25th June, 1920. After the death of Narayanaswami, T. K. Mani succeeded to the half share in the estate. Subsequently T. K. Mani sold some portion of the estate in small bits in favour of various parties, including the plaintiff. Exhibit A -2 dated 17th August, 1960 is the sale of 5 acres of land by the said T. K. Mani in favour of the plaintiff. Subsequently the second defendant seems to have approached T. K. Mani to repurchase the various items of properties sold by him and convey the entirety to him for a sum of Rs. 63,000. In pursuance of this arrangement, T. K. Mani not only got back the 5 acres sold by him under Exhibit A -2, but also another 7 access and odd from the plaintiff under Exhibit A -3. As a matter of fact the second defendant had purchased all the items of properties of T. K. Mani under Exhibit A -4 on nth September, 1961 in pursuance of the said arrangement. P.W. 2 has deposed that he sold the entire 45 acres to the second defendant for a sum of Rs. 63,000 but only a lesser consideration of Rs. 30,000 was mentioned in Exhibit A -4 for the purpose of reducing the stamp duty. He specifically refers to the understanding between him and the second defendant that the latter should give Rs. 15,000 to the plaintiff for repurchasing the property from him and it was in pursuance of that understanding the second defendant paid a sum of Rs. 10,000 in cash and Exhibit A -1 a cheque for the balance of Rs. 5,000. According to him even in respect of the persons, from whom he purchased the other extents, it is the second defendant who paid the consideration. He has specifically denied that the cheque was given as a security to ensure his carrying out the terms of the understanding. A perusal of his oral evidence shows that no motive has been attributed against him. His evidence has not been challenged as interested. Therefore, there is no reason to doubt that the real sale consideration was only Rs. 15,000 and not Rs. 4,500 as recited in the document. As already stated, both the plaintiff and P.W. 2 the vendor and the purchaser, respectively had stated that the consideration agreed was only Rs. 15,000 and not Rs. 4,500. Their evidence has been specifically referred to and accepted by the trial Court. Even otherwise, the extent said to have been sold under Exhibit A -3 being 12 - -64 acres of tea garden it is quite possible that the real consideration was Rs. 15,000. The lower appellate Court has chosen to reject their evidence in this regard mainly on the ground that it is not open to them to go behind the recital in the sale deed. The question therefore, is whether the plaintiff is entitled to plead and establish that the consideration for the sale under Exhibit A -3 was Rs. 15,000 as against the sale consideration of Rs. 4,500 recited in the document.