9911796707
TMI Blog2004 (8) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... inal defendants for recovery of sum of Rs. 27,170/- as the price of goods sold and the interest thereon. It was the plaintiffs case that he is agriculturist. The defendant No. 1 is a partnership firm and his partners- defendants purchased 87.35 quintals of jaggery from the plaintiff valued at Rs. 27,170/-. The price of the goods was not paid at the time of its delivery. The defendant No. 2 however promised to pay the said amount shortly. On insistence by the plaintiff, defendant No. 2 handed over a cheque for Rs. 11835.94 bearing No. 04284 dated 20-9-1983. The balance amount was agreed to be paid within 15 days. But, on demand, the defendants avoided. On enquiry by the plaintiff it came to be known that there were no funds in the account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be given, but no such receipt of purchase of jaggery was given in this case. It was their case that suit transaction pertains only to the money lending transaction. It was stated that the loan amount was repaid by them from time to time with interest. It was their case that they had cleared all debts of the plaintiff and at the time of clearing entire dues, the defendants demanded cheques which they had issued. But the plaintiff stated that the cheques have been lost and the defendants believed the plaintiff. It was also pleaded by the defendants that the cheques were issued by them under coercion and misrepresentation. 4. The learned trial Judge, on the basis of pleadings of the parties framed necessary issues and after recording the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these cheques were obtained by the plaintiff from them by fraud and coercion. It was their case that it was money lending transaction. 6. The trial Court recorded findings that the defendants could not prove that the plaintiff was running money lending business nor there was money lending transaction between them. There was no evidence that cheques which the defendants admitted to have issued in favour of the plaintiff for different sums were issued under coercion or fraud. There was no argument in this regard. The learned first appellate Court observed that the plaintiff had claimed the amount of Rs. 27,170/- as a price of jaggery sold to the defendants. The learned Judge of the first appellate Court observed that the plaintiff would su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s denied in the written statement, goes into the witness box and if the result of his examination is such that he fails to establish the point which he set out to make, namely, that he gave the consideration and the Court is thus satisfied that he did not give the consideration which he alleges, the defendant can avail himself of that and has a right to a decree. This is no way trenches upon the ordinary rule that the defendant must prove absence of consideration if that is his case. 8. The learned counsel for the appellant has submitted that the judgment referred to above on which reliance is placed by the learned first appellate Court does not lay down the law as interpreted by the learned first appellate Court. By subsequent ruling i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove that the case set up by the plaintiff is not true and rebut the presumption under Section 118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words 'until the contrary is proved' in Section 118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the Court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the case, to fact upon the supposition that consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 10. Shri Jaiswal, the learned counsel for the respondents placing reliance on the ruling of the Supreme Court on which reliance has been placed by the appellant contended that where the parties have joined issue and have led evidence, the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. There is no dispute about this preposition. In the present case, it would however be seen that there is absolutely no evidence adduced by the defendants to show that no consideration is passed. On the contrary, the defendants' stand was that the cheques were issued under coercion and misrepresentation and on another occasion it was stated that the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
