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Tmt.Binu Christeena vs M.A.R.Juherniza
2025 Latest Caselaw 5208 Mad

Citation : 2025 Latest Caselaw 5208 Mad
Judgement Date : 23 June, 2025

Madras High Court

Tmt.Binu Christeena vs M.A.R.Juherniza on 23 June, 2025

Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
                                                                                            C.S. No.81 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 23.06.2025

                                                           CORAM

                          THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY

                                                   C.S. No.81 of 2021


                     Tmt.Binu Christeena
                     W/o. Thiru Peter Arivarasan,
                     No.3/421, Pandian Salai,
                     Neelankarai, Chennai-115.                                        ... Plaintiff


                                                               vs.


                     1. M.A.R.Juherniza,
                     New D.No.226, Old D.No.171,
                     Ramakrishna Mutt Salai,
                     Mandaveli, Chennai-28.


                     2. Mrs.A.J.Manaraseena
                     D/o. Late A.Jalal
                     New D.No.226, Old D.No.171
                     Ramakrishna Mutt Salai,
                     Mandaveli, Chennai - 600 028.

                     3. Mrs.A.Thameemnisa
                     D/o. Late Jalal, D.No.14/8,
                     Appavu Gramani 1st Street,
                     Mandaveli, Chennai 28.


                     1/23




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                                                                                                   C.S. No.81 of 2021

                     4.Mrs.A.J.Shahar Banu
                     D/o Late A.Jalal,
                     D.No.51A, Salaiar Street,
                     Mandaveli, Chennai 28.

                     5. Mrs.A.J.Noornisa
                     D/o Late A.Jalal
                     New D.No.80/2, Old D.No.7/1,
                     Lalitha Nagar, 1st St.,
                     Mylapore, Chennai 04.

                     6. Mr.J.Khaja Moideen
                     S/o Late A.Jalal,
                     New D.No.226, Old D.No.171,
                     Ramakrisha Mutt Salai
                     Mandaveli, Chennai 28.

                     7. Mrs. A.J.Shabina Parveen
                     D/o Late A.Jalal
                     New D No.226, Old D.No.171,
                     Ramakrishna Mutt Salai
                     Mandaveli, Chennai 28.

                     8.Thiru.A.Pradeep
                     S/o A.Asokan
                     Door No.1, Vannianpathi Street,
                     R.A.Puram, Chennai 600 028.                                             ... Defendants


                     PRAYER: Plaint filed under Order IV Rule 1 of the Original Side Rules

                     Read With Order VII Rule 1 of the C.P.C., prays for the Judgment and

                     Decree in favour of the plaintiff and against defendants 1 to 8, as follows:

                                  (a) directing defendants 1 to 8 to pay a sum of Rs.2,39,18,494/- with

                     subsequent interest at the very same rate of 18% per annum on the suit

                     2/23




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                                                                                              C.S. No.81 of 2021

                     amount of Rs.1,31,00,000/- from the date of the plaint to till the date of

                     realisation;

                                  b) For costs of the suit.



                                        For Plaintiff           : Mr.R.Palaniandavan

                                        For D8                  : Dr.S.S.Swaminathan

                                        D1 to D7                : No appearance

                                                           JUDGMENT

The suit was filed for recovery of a sum of Rs.2,39,18,494/- from

defendants 1 to 8 with interest at 18% per annum on Rs.1,31,00,000/- from

the date of plaint till the date of realisation.

2. In the plaint, the plaintiff states that she entered into sale agreement

dated 25.07.2016 with the 8th defendant acting as agent of defendants 1 to 7.

Pursuant thereto, the plaintiff states that an aggregate sum of

Rs.2,56,00,000/- was paid to the 8th defendant from and out of the total sale

consideration of Rs.6,67,86,458/-. Thereafter, it is also stated that the

plaintiff constructed houses/villas on the property and received an aggregate

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advance of Rs.2,60,00,000/- from two buyers. Since the 8th defendant did

not come forward to execute the sale deed and instead suggested that a joint

venture agreement be entered into, the plaintiff states that joint venture

agreement dated 25.10.2017 was executed. On the date of execution thereof,

it is stated that a further sum of Rs.44 lakhs was paid, thereby aggregating to

a sum of Rs.3 crores.

3. By further asserting that the 8th defendant refused to register

documents in favour of buyers of villas, which were allotted to the plaintiff's

share, it is stated that the plaintiff was constrained to lodge a police

complaint. In course of hearing of Crl.O.P.No.682 of 2019, the plaintiff

states that the 8th defendant paid a sum of Rs.1,25,00,000/- to the plaintiff

and a sum of Rs.2,38,00,000/- to the plaintiff's buyers. According to the

plaintiff, a sum of Rs.2,16,00,000/- had been incurred as costs for

developing the property pursuant to the agreement of sale and joint venture

agreement. After giving credit to amounts received from the 8th defendant,

the plaintiff computed the principal suit claim of Rs.1,31,00,000/- and the

aggregate claim of Rs.2,39,18,494/-.

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4. In spite of service of suit summons, defendants 1 to 7 did not

contest the suit. The 8th defendant, however, entered appearance and filed a

written statement. In the written statement of the 8th defendant, the

execution of the sale agreement and joint venture agreement as an agent of

defendants 1-7 are admitted. It is also stated that the power of attorney

remains in force. As regards payments pursuant to the said agreements, the

8th defendant has set out details thereof in paragraph 18 of the written

statement. In effect, the receipt of the aggregate sum of Rs.2,56,00,000/- is

admitted therein and it is stated that three cheques, each dated 10.06.2017,

for sums of Rs.10 lakhs, Rs.20 lakhs and Rs.20 lakhs were dishonoured.

According to the 8th defendant, the plaintiff only paid the sum of

Rs.2,56,00,000/- and not the sum of Rs.3 crores as stated in the plaint.

5. The agreed position between the plaintiff and the 8th defendant is

that the plaintiff put the 8th defendant in possession of the immovable

property forming the subject of the sale agreement and joint venture

agreement and that it was agreed between them that, consequently, further

obligations under the joint venture agreement would not survive.

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6. Upon considering the pleadings and documents, issues were framed

on 24.04.2024. Although ten issues were framed, in view of the

developments recorded above, only the following five issues retain

relevance:

“1. Whether the defendants 1 to 8 are liable to pay a sum

of Rs.2,39,18,494/- with subsequent interest at the rate of 18%

per annum for the principal amount of Rs.1,31,00,000/- from the

date of the plaint till the date of realisation ?

6. Whether the plaintiff paid a sum of Rupees Three Crores

to the defendants in respect of the Sale Agreement dated

25.07.2016 and Joint Venture agreement dated 25.10.2017 ?

7.Whether the plaintiff is entitled to claim Rs.2,16,00,000/-

towards construction, Approval, Marketing & Labour ?

8. Whether the plaintiff is entitled to the suit claim even

after payment of Rs.2,38,00,000/- to the prospective purchasers

of the Villa ?

10. To what other reliefs?”

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7. The plaintiff adduced oral evidence by examining her husband,

Peter Arivarasan, as P.W.1. In course of the examination in chief of P.W.1,

15 documents were exhibited as Exs.P1 to P15. P.W.1 was cross-examined

by learned counsel for the 8th defendant. In course of cross-examination, five

documents were exhibited as Exs.D1 to D5. The 8th defendant did not lead

oral evidence. Significantly, the 8th defendant did not file an affidavit of

admission/denial in respect of documents filed and exhibited by the plaintiff.

Counsel and their contentions

8. Oral arguments on behalf of the plaintiff were advanced by

Mr.R.Palaniandavan and on behalf of the 8th defendant by

Dr.S.S.Swaminathan.

9. Learned counsel for the plaintiff referred to the Sale Agreement

dated 25.07.2016 (Ex.P2), Developing Power cum Memorandum of

Understanding dated 25.07.2016 (Ex.P3) and receipts dated 12.09.2016 &

07.04.2017. He pointed out that these documents contain acknowledgements

for the receipt of an aggregate sum of Rs.2 crores. By referring to the joint

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venture agreement dated 25.10.2017 (Ex.P6), learned counsel submits that

said document contains an acknowledgement of the receipt of the aggregate

sum of Rs.3 crores by the 8th defendant from the plaintiff. By referring to

paragraph X of the plaint, learned counsel submits that it is pleaded therein

that the plaintiff paid a further sum of Rs.44 lakhs on 25.10.2017, i.e. the

date of execution of the joint venture agreement. Thus, learned counsel

submitted that the plaintiff had paid an aggregate sum of Rs.3 crores to the

8th defendant.

10. In addition, he submits that the plaintiff had incurred expenditure

of Rs.2,16,00,000/- in developing the property. Hence, he submits that the

total amount due from the 8th defendant is Rs.5,16,00,000/-. He also submits

that the amount paid by the 8th defendant to third party buyers of villas

constructed by the plaintiff were given credit to while arriving at the

principal suit claim of Rs.1,31,00,000/-. By referring to questions and

answers 30 & 31 during cross-examination of P.W.1 on 03.07.2024, learned

counsel submits that P.W.1 explained that three cheques for Rs.50 lakhs

were issued because the 8th defendant had asked for an excess amount for

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personal needs. He also pointed out that P.W.1 stated that cash payment was

made on 25.10.2017 in lieu of the three dishonoured cheques.

11. In response, learned counsel for the 8th defendant referred to

Exs.P2, P4 and P5 to point out that these documents provide particulars of

the mode of payment of amounts specified therein. He also referred to

Ex.D1, which is the original sale agreement (copy of which was exhibited as

Ex.P2). He points out that subsequent payments in February 2017 of an

aggregate sum of Rs.56 lakhs are reflected therein under the signature of the

8th defendant. Therefore, he submits that only Rs.2,56,00,000/- was paid by

the plaintiff to the 8th defendant and not Rs.3 crores.

12. By referring to the plaint, learned counsel submits that the three

cheques for the aggregate sum of Rs.50 lakhs were not referred to therein.

He also points out that paragraph X of the plaint does not mention that the

amount of Rs.44 lakhs was paid in cash. By referring to the cross-

examination of P.W.1, particularly questions 14 to 23 and the answers

thereto, learned counsel submits that P.W.1 admitted that the total payments

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acknowledged under Ex.D1, Ex.P4 and Ex.P5 aggregate to a sum of

Rs.2,56,00,000/-. By further referring to questions 29 to 33 and the answers

thereto, learned counsel submits that the plaintiff's assertion that a sum of

Rs.44 lakhs was paid in cash is belied by the answers of P.W.1 inasmuch as

P.W.1 admits that no action was taken to get back the dishonoured cheques.

Thus, he contends that the conduct of the plaintiff does not support the

assertion that a sum of Rs.44 lakhs was paid in cash. By also referring to the

answers to questions 42 & 68, learned counsel submits that P.W.1 provided

the unacceptable and unbelievable answer that details of payments were

provided in the sale agreement and receipts only when more than one mode

of payment was involved. Therefore, learned counsel submits that the 8th

defendant is not liable for the suit claim with interest thereon.

13. By way of a brief rejoinder, learned counsel for the plaintiff

submits that the 8th defendant has not disputed Ex.P6 and, in fact, admitted

the same. By also pointing out that no affidavit of admission/denial was filed

in response thereto, learned counsel submits that not only the signatures but

even the contents of Ex.P6 stand admitted. As a result, learned counsel

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submits that any oral evidence to disprove Ex.P6 is inadmissible. As regards

the plaintiff's decision not to call for a return of the dishonoured cheques in

spite of paying the sum of Rs.44 lakhs in cash, learned counsel submits that

the 8th defendant did not issue notice under Section 138 of the Negotiable

Instruments Act, 1881 (the NI Act) or take any other measures in relation to

the dishonoured cheques.

Discussion, analysis and conclusion:

Issue No.6:

14. This issue relates to whether the plaintiff paid a sum of Rs.3 crores

to the defendants under sale agreement dated 25.07.2016 and joint venture

agreement dated 25.10.2017. The record shows that Ex.P6, which is the joint

venture agreement, was exhibited without objections and without denial on

the part of the 8th defendant. The said agreement records, in relevant part, as

under:

“ 1/ ek;kpy; 1tJ ghh;l;o nkw;go 2tJ ghh;l;oaplkpUe;J ml;thd;!hf U:/3.00.00.000-? (U:gha; K:d;W nfho kl;Lk;) I bgw;Wf;bfhz;Ls;shh;/ mjpy; U:/1.00.00.000-?Free Money- ahft[k;. kPjKs;s U:/2.00.00.000-? Refund ml;thd;!; Mft[k;. ,ij

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fl;olk; Koa[k;nghJ gzkhfnth my;yJ mjw;Fhpa (B3 or A2) tPlhfnth 1tJ ghh;l;o 2tJ ghh;l;oaplk; bfhLf;f ntz;Lk;/”

Ex.P6 clearly bears the signature of the 8th defendant and the plaintiff has

signed as the Proprietrix of Dream Asset Promoters.

15. In the plaint, at paragraph X, while referring to the joint venture

agreement, the plaintiff pleaded, in relevant part, as under:

“X. .. .. Accordingly, the plaintiff entered into a Joint Venture Agreement on 25-10-2017, with all the defendants for the very same property for which sale agreement was entered into already. On the day of entering into the Joint Venture Agreement, i.e. on 25-10-2017, the plaintiff paid further sum of Rs.44,00,000/- (Rupees forty four lakhs only) and thus, a total sum of Rs.3,00,00,000/- (Rupees Three crores only) to the defendants. ” In the written statement at paragraph 18, the 8th defendant has recorded

details of payments received from the plaintiff. In the table at paragraph 18,

payments received under serial nos.1 to 13 thereof are admitted and

aggregate to a sum of Rs.2,56,00,000/-. Therefore, the only disputed

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question in this regard is with regard to the payment of the additional claim

of Rs.44 lakhs by the plaintiff.

16. In the proof affidavit of Peter Arivarasan, reference was made to

the joint venture agreement and to the receipt by the 8th defendant of an

aggregate sum of Rs.3 crores as advance. P.W.1 was cross-examined with

regard to this issue by learned counsel for the 8th defendant. The relevant

questions and answers are set out below:

“Q29: Whether the Cheques under Ex.D3 to Ex.D5 were dishonoured?

A: Yes.

Q30: Whether the difference amount mentioned in the Joint Venture Agreement and the payment made under Ex.D1, Ex.P4 and Ex.P5 is in lieu of the dishonoured Cheques?

A: Yes. They were seeking excess amount for personal needs and for that the round of the amount and issued 3 Cheques for total sum of Rs.50 Lakhs.

Q31: When have you made the cash payment in lieu of 3 Cheques?

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A: Payment was made on 25.10.2017 when Joint Venture Agreement was executed.

Q32: Whether you have demanded the 8th defendant to return the dishonoured Cheques? If so how? A: I have demanded orally at the time of execution of Joint Venture Agreement and he has not returned.

Q33: Have you taken any action in writing or other modes to get back the dishonoured Cheques? A: No. I have not taken.

Q42: Is it the practice to mention about the details of the mode of payment in respect of the payments made under Ex.D1, Ex.P4 and Ex.P5?

A: The details of the mode of payment have been given only upto the issuance of receipts. Witness adds: the details of mode of payment is stated only when both cash and Cheques are involved.

Q68: (Ex.P6 is shown to the witness) Whether the details of payment and mode of payment are mentioned in Ex.P6?

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A: No. It is not necessary to mention for single mode payment. The total amount received by them is mentioned.

Q81: I put it to you that you have not made any cash payment on the date of joint Venture.

A: I deny. I made a payment of Rs.44 Lakhs.

Q82: I put it to you that you have computed the amount of Rs.3 Crores by including the value of the bounced Cheques.

A: Yes.

As is noticeable from the above answers, P.W.1 states that cash payment of

Rs.44 lakhs was made on 25.10.2017 when the joint venture agreement was

executed. Paragraph X of the plaint also refers to the payment of Rs.44 lakhs

on 25.10.2017, albeit the mode of payment is not referred to therein. In the

answer to question 33, P.W.1 has admitted that no action was taken for

return of the dishonoured cheques. Learned counsel for the plaintiff explains

such inaction on the ground that the 8th defendant did not initiate

proceedings under Section 138 of the NI Act or for any other relief in

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respect thereof.

17. According to learned counsel for the 8th defendant, the fact that

details of the mode of payment were specified in Exs.P2, P4 and P5,

whereas they are not mentioned in Ex.P6 would lead to the inference that a

sum of Rs.44 lakhs was not paid. Two significant aspects should be borne in

mind while assessing the evidence in this regard. The first being that Ex.P6

is an admitted document, including in relation to the contents thereof. The

second aspect is that this document was executed on 25.10.2017. The suit

was presented sometime in February 2021. During the 3 ½ year interregnum

between the execution of Ex.P6 and the presentation of the suit, the agreed

position is that there is no communication from the 8th defendant to the

plaintiff denying receipt of the sum of Rs.44 lakhs. Therefore, Issue no.6 is

decided in favour of the plaintiff and against the 8th defendant.

Issue No.7:

18. This issue relates to whether the plaintiff is entitled to

Rs.2,16,00,000/- towards construction, approval, marketing & labour.

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Although the plaintiff exhibited 15 documents through P.W.1, none of these

documents deal with the alleged expenditure of a sum of Rs.2,16,00,000/-

towards construction and related activities. Even the proof affidavit of P.W.1

does not contain particulars of such expenditure by way of even a break-up.

Importantly, no supporting documents were exhibited. In light of the failure

of the plaintiff to adduce evidence in support of the claim of

Rs.2,16,00,000/-, the only reasonable conclusion is that the claim of

Rs.2,16,00,000/- has not been proved. As regards such expenditure, at

paragraph 18 of the written statement, the 8th defendant has admitted that a

sum of Rs.1,25,00,000/- was incurred as expenditure by the plaintiff and that

this amount was reimbursed by the 8th defendant. Issue No.7 stands disposed

of by holding that this claim is proved by admission only to the extent of

Rs.1,25,00,000/-.

Issue Nos.1, 8 and 10:

19. These issues relate to whether defendants 1 to 8 are liable to pay

an aggregate sum of Rs.2,39,18,494/- with interest at 18% per annum on the

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principal sum of Rs.1,31,00,000/- and whether the plaintiff is entitled to the

suit claim in respect of the payment of Rs.2,38,00,000/- to the prospective

purchasers of villas from the plaintiff.

20. The agreed position is that the plaintiff had received an aggregate

sum of Rs.2,60,00,000/- from the prospective purchasers of villas and that

the 8th defendant discharged the plaintiff's liability to these third party buyers

by paying a sum of Rs.2,38,00,000/- towards the same. While disposing of

Issue no.7, it was recorded that the plaintiff had not proved that she had

incurred expenditure of Rs.2,16,00,000/- towards construction cost.

Therefore, the computation of the suit claim at paragraph XVII of the plaint

is incorrect. In other words, in order to discharge liability towards the sum of

Rs.3 crores received from the plaintiff, the 8th defendant paid a sum of

Rs.1,25,00,000/- directly to the plaintiff. A further aggregate sum of

Rs.2,38,00,000/- was paid by the 8th defendant to discharge the plaintiff's

debt of Rs.2,60,00,000 to third party buyers of villas from the plaintiff.

21. Once credit is given for the above payments by the 8th defendant, a

total sum of Rs.3,85,00,000/- (Rs.2,60,00,000 + Rs.1,25,00,000) has been

paid towards a total liability of Rs.4,25,00,000/-(Rs.3,00,00,000 +

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Rs.1,25,00,000), and only a sum of Rs.40 lakhs remains to be paid by the 8th

defendant to the plaintiff. Since the said amount was paid on 25.10.2017,

the plaintiff is entitled to interest thereon from the said date. By taking into

account interest rates prevailing at the relevant point of time and the fact that

it is a commercial transaction, the said amount shall carry interest at the rate

of 12% per annum from 25.10.2017.

22. As the partial successful party, the plaintiff is entitled to costs. A

sum of Rs.2,42,710/- was paid as Court fees. Since the plaintiff only

succeeded partly, the plaintiff shall be entitled to Rs.1,50,000/- towards

Court fees and, in addition, a sum of Rs.1,50,000/- towards lawyer's fees and

other expenses.

23. In conclusion, the suit is decreed by directing the 8th defendant to

pay the plaintiff a sum of Rs.40 lakhs with interest thereon at 12% per

annum from 25.10.2017. In addition, the 8th defendant is directed to pay an

aggregate sum of Rs.3,00,000/- (Rupees Three lakhs only) as costs to the

plaintiff towards Court fees, lawyer's fees and other expenses.

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23.06.2025

Index : Yes / No Internet : Yes / No Neutral Citation: Yes / No

kj

Plaintiff's witness:

P.W.1 : Peter Arivarasan

Documents exhibited by the plaintiff:

                        Exhibits                                   Documents
                      Ex.P1        The photocopy of the power of attorney executed by

defendants 1 to 7 in favour of the 8th defendant dated 19.08.2011. (The learned counsel for the defendant has objected that original not produced and not compared with original) Ex.P2 The photocopy of the sale agreement dated 25.07.2016. (The learned counsel for the defendant has objected that original not produced and not compared with original) Ex.P3 The photocopy of the Developing power cum Memorandum of Understanding dated 25.07.2016. (The learned counsel for the defendant has objected that original not produced and not compared with original) Ex.P4 The photocopy of the receipt issued for Rs.1,00,00,000/- dated 12.09.2016. (The learned counsel for the defendant has objected that original not produced and not compared with

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Exhibits Documents original) Ex.P5 The photocopy of the receipt issued for Rs.l ,00,00,000/- dated 07.04.2017. (The learned counsel for the defendant has objected that original not produced and not compared with original) Ex.P6 The photocopy of the Joint Venture Agreement dated 25.10.2017. (The learned counsel for the defendant has objected that original not produced and not compared with original) Ex.P7 The photocopy of the copy of the F.l.R No.376 of 2018 dated 05.09.2018. (The learned counsel for the defendant has objected that original not produced and not compared with original) Ex.P8 The photocopy of the order in Crl. M.P. No.22050/2018 dated 21.12.2018.

Ex.P9 The photocopy of the order in Crl. M.P. No.140/2019 dated 04.01.2019.

Ex.P10 The photocopy of the order in Crl. O.P.No.682/2019 dated 17.06.2017.

Ex.P11 The photocopy of the order in Crl.O.P.No.682/2019 dated 09.08.2019.

Ex.P12 The photocopy of the order in Crl.O.P.No.682/2019 dated 30.08.2019.

Ex.P13 The photocopy of the order in Crl. O.P. No.682/2019 dated 13.09.2019.

Ex.P14 The photocopy of the order in Crl. O.P. No.25668/2019 dated 03.10.2019.

Ex.P15 The office copy of the notice sent by the plaintiff to the defendant dated 23.01.2020 along with postal receipts, acknowledgment and returned covers.

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Documents exhibited by the defendant through P.W.1:

                        Exhibits                                   Documents
                      Ex.D1        Sale agreement dated 25.07.2016
                      Ex.D2        Developing Power cum Memorandum of Understanding dated
                                   25.07.2016
                      Ex.D3        Cheque No.206788 drawn on Axis Bank, dated 10.06.2027, for
                                   a sum of Rs.20 lakhs
                      Ex.D4        Cheque No.206789 drawn on Axis Bank, dated 10.06.2017, for
                                   a sum of Rs.20 lakhs
                      Ex.D5        Cheque No.206790 drawn on Axis Bank, dated 10.06.2017 for
                                   a sum of Rs.10 lakhs



                                                                                          23.06.2025




                                                         SENTHILKUMAR RAMAMOORTHY,J



                                                                                                      kj









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                                                                                   23.06.2025









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