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1 - 10 of 13 (1.22 seconds)Section 91 in The Indian Evidence Act, 1872 [Entire Act]
Rajammal vs M.Senbagam on 11 November, 2016
[d]In yet another case, where out of total
consideration of Rs.2,00,000/- a sum of
Rs.1,65,000/- was paid as advance and three years
period was fixed for the payment of balance of sale
consideration, this Court in the Rajammal and
Another V. M.Shenbagam reported in 2016 [6]
CTC 225, held that in the absence of proper
explanation for prescribing longer period, the Sale
Agreement is not a bona fide agreement but
obtained as a security to loan transaction.
(30)Learned counsel for the respondents submitted that the
appellant/plaintiff has not proved his readiness and willingness and
that the suit is liable to be dismissed on the ground of delay and laches
as the plaintiff has filed the suit only on 06.09.2011 despite the
defendants have sent a reply on 28.02.2011 itself. This Court is unable
to dismiss the suit on the ground of delay and laches as the plaintiff
has alleged payment of substantial amount under the Agreement and
only a small amount of Rs.50,000/- is payable by way of balance. The
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judgment of Hon'ble Supreme Court relied upon by the defendants
cannot be applied to non-suit the plaintiff on the ground of delay and
laches if the Agreement is held to be proved as genuine sale
Agreement. Though the evidence of plaintiff as PW1 prompted learned
counsel for respondents to build an argument that the plaintiff was not
ready and willing to perform her part of contract, having regard to the
finding of this Court that the suit Agreement is not a bona fide sale
transaction and since this Court has accepted the case of defendants
that the suit Agreement was never intended to be acted upon as a Sale
Agreement but was executed as security for loan transaction, is not
inclined to go into the issue. Hence, Point [A] is answered to the
effect that the suit Agreement is not a bona fide Agreement as it
was obtained by plaintiff as a security for the loan transaction
without any intention to act upon as a Sale Agreement.
Tyagaraja Mudaliyar vs Vedathanni on 6 December, 1935
(27)The judgment in Tyagaraja Mudaliyar V. Vedathani reported in
AIR 1936 Privy Council 70, is an authority for the proposition that
oral evidence in departure from the written Deed is admissible to show
that what is mentioned in the Deed was not the real transaction
between the parties but it was something different. The judgment of
Privy Council is followed by the Hon'ble Supreme Court as well as by
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this Court in several precedents. Therefore, the contention of the
appellant that the plea of defendants in the written statement is not
permissible in view of Sections 91 and 92 of the Evidence Act, cannot
be countenanced.
K.Muthusamy vs K.V.K.Subramaniam on 2 March, 2011
[a]In the case of K.Muthusamy and
Another Vs. K.V.K.Subramaniam reported in 2011
[2] LW 289, a learned Single Judge of this Court has
observed that granting three years time for paying
substantial portion of the sale consideration under
the Agreement is one of the circumstances to hold
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that the Sale Agreement is executed as a security
for the loan amount.
T.G.Pongiannan vs K.M.Natarajan on 2 April, 2009
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(21)As indicated above, this Court is of the view that the case of
defendants in this case is more probable than the plaintiff's assertion as
regards the nature of transaction. Though the burden lies on the
defendants to prove the loan transaction as pleaded by them in the
written statement, this Court on appreciation of overall circumstances,
is inclined to believe the case of defendants as this Court finds that the
plaintiff's evidence as PW1 does not inspire confidence. The plaintiff
has come forward with a false case that possession of suit properties
were handed over to plaintiff under the Agreement. Whereas it is
specifically referred to in the Agreement that possession is not handed
over to the plaintiff under Agreement. The plaintiff further admitted
that she did not negotiate regarding the sale transaction as it was only
the plaintiff's husband who went to the house of defendants and she
knows only from her husband about the nature of Agreement.
(22)Learned counsel for the appellant/plaintiff relied upon the judgment
of this Court in the case of T.G.Pongiannan Vs. K.M.Natarajan and
Another reported in 2009 [6] CTC 301, wherein a learned Single
Judge has held as follows:-
Mrs.Pappammal @ T.Pappa vs Mr.P.Ramasamy on 29 March, 2012
[c]A learned Single Judge of this Court in
the case of Pappammal @ T.Pappa Vs.
P.Ramasamy reported in 2012 [4] CTC 100 has
opined that the Sale Agreement must have been
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executed only as security or as a loan transaction
since out of total sale consideration of Rs.40,000/-, a
sum of Rs.30,000/- was paid as advance and for the
payment of balance of Rs.10,000/-, five year period
was prescribed.