Vaithianatha Pillai vs Sheik Abdul Majid

Abdul Hadi, J.—These two Second Appeals arise out of two suits. O.S.No.294 of 1978 and O.S.No.47 of 1978 on the file of the II Additional Subordinate Judge, Pondicherry, but filed by the same plaintiff-appellant against the same defendant-respondent, the former being for recovery of Rs.3000/- with interest due under promissory note dated 9.3.1975 and the latter being for recovery of Rs.4,500/- with interest due under promissory note dated 21.2.1975. Both the promissory notes were executed by the said defendant. Both the suits were not tried together, though they are connected, In both the suits, the relevant suit promissory note was marked as EX.A1. The execution of the promissory notes was admitted, but the only defence is failure of consideration. According to the defendant, the Plaintiff executed the sale deed Ex. B1 dated 17.2.1975, marked so in both the suits, whereby the plaintiff sold a land 5 Kuzhies for Rs.15,000/- But, the defendant paid towards sale consideration only Rs.7000/- and for the balance sale consideration due, the defendant executed the above said two promissory notes. Further according to the defendant, 2 Kuzhies out of the above said 5 Kuzhies of the said land were acquired by the Government and hence the promissory notes are without consideration. In both the suits, the same land acquisition Notification was marked as Ex.B2 dated 10.9.1974. Though the above said Ex. B1 sale deed actually shows that the sale consideration is Rs.4000/- only, according to the defendant, the real sale consideration was Rs.15,000/-. Both the promissory notes actually recite that the consideration for the promissory notes was paid in cash to the defendant for the tatter''s family and business expenses.

The trial court, in both the suits, has not accepted the defence and so, has decreed both the suits as prayed for. But, the lower appellate Court in the respective appeals, A.S.No.36 of 1980 and A.S.No.129 of 1980 filed by the defendant (which were also not heard together) has dismissed both the suits, accepting the above said defence, Hence, these second appeals.

Only two questions were argued before me. The first question is whether S. 92of the Evidence Act would operate, to bar the defendant letting in evidence in support of his above said defence, which conflicts with what is recited in the promissory note, that is, the consideration for the execution of the note was. cash received for family and business expenses. The learned counsel for the appellant argues that S. 92will be a bar, relying on the decision in C.K. Kuppuramulu Vs. A. Varadarajulu, . But, this contention cannot be accepted. The defendant only sets up a plea of another consideration other than what is recited in the promissory note and says that it has failed in view of the above said land acquisition of two kuzhies out of the above said five Kuzhies. A plea of consideration different from what is recited in the promissory note, cannot be termed as a case varying the terms spoken to in S. 92of the Evidence Act. S. 91prohibits only variation in "terms" of documents and not recitals of some facts. The form of consideration for the promissory notes, relates only to a recital of fact (Vide Woodruff & Amir Ali''s law of Evidence, 14th Edition, Volume 3, page 1926 and also Ramratan v. Ram Taperwer (1969 Jab. L. J. 164 (166)) cited therein. The above said decision reported in the above referred to A.I.R.1973 Mad 479 did not decide either way on the facts before it, but only remanded the case back to the Court below after amending the plaint on the relevant plea, holding that if the Court below came to the conclusion that the plea raised was a variation of the terms of the written contract, then oral evidence: would be excluded and that if the Court below came to the conclusion that the plea raised amounted to a complete discharge, then oral evidence relating to discharge was admissible. So, that decision has no application to the present case, which is a case where the defendant is actually contending that there was no consideration at all for the above said promissory notes in view of the acquisition of the above said two kuzhies by the, Government. S. 92of the Evidence Act is not a bar to prove that no consideration passed vide Sah Lal Chand v. Indrajit (I.L.R.22 All 370). So, on this question the lower appellate court is right and the trial Court is wrong.

But, on the next question argued by the learned Counsel for the appellant, viz, whether there is really failure of consideration, in view of the following reasons, 1 have to come to the conclusion that the trial Court is right in holding that there was no failure of consideration and the lower appellate court is wrong in holding otherwise. First of all in O.S.No.47 of 1978, the plaintiff has marked Ex.A4 dated 20.2.1978 which is a letter given by the defendant in favour of the plaintiff''s father and in relation to the suit promissory note dated 21.2.1975 in O.S.No.47 of 1978. While the said letter said about the sum of Rs.200/- paid towards the said promissory note amount, the defendant acknowledges therein the liability under the above said promissory note in O.S.No.47 of 1978 thus:-

The defendant, as D.W.I in O.S.No.47 of 1978 has also admitted the execution of the said letter by him thus:-

If really, there was any failure of consideration as contended by the defendant, with reference to the promissory note in O.S.No.47 of 1978, he would not have given such a letter. Therefore it is clear that the case put forward by the defendant, cannot be believed. No doubt, there is no such acknowledgment of liability with reference to the other suit promissory note in O.S.No.294 of 1978. However, once it is found that despite the abovesaid acknowledgment under Ex.A4 the defendant has come forward with a false case in O.S.No.47 of 1978, his evidence even with reference to O.S.No.294 of 1978 can hardly be believed. That apart, there are also other features, which would prove the falsity of his case. Even according to the defendant, the balance consideration due is Rs.8000/-. But the suit promissory notes together are not for Rs.8000/- but only for Rs.7500/- That apart there appears to be no acceptable evidence that the total sale consideration was actually Rs. 15000/-, even though Ex. B1 recites that the consideration is only Rs.4000/- All these apart, there is also no finding that two kuzhies out of the total 5 Kuzhies of suit lands were actually acquired by the Government. No doubt, Ex.B2 in both the suits in the Notification relate to the land acquisition. But, regarding the description of the property therein and the suit property, there is no relation. Further, if really two out of 5 Kuzhies have been acquired by the Government, the defendant would have taken steps to set aside the sale deed or claim damages from the plaintiff. But, no such step seems to have been taken. In view of the above features of the case, there is no difficulty in holding that the defendant''s case cannot be accepted.

Further, in view of the fact that the execution of the promissory note has been admitted, the burden lies on the defendant to prove failure of consideration and in view of the abovesaid features, there is absolutely no difficulty in holding that the defendant has not discharged the said burden and the lower appellate court, in ignoring the impact of Ex.A4 acknowledgment and in ignoring the abovesaid other features in the case, has committed a substantial error of law. Therefore, in both the proceedings the Judgments and decrees of the lower appellate court are set aside and that of the trial court are restored and the second appeals are accordingly allowed with costs throughout.