Judgment :- 1. This suit has been filed by the plaintiff for recovery of a sum of Rs. 59,75,000/- together with interest at 24% per annum from the date of plaint till realisation and for costs. 2. The plaint averments are as follows: Plaintiff is the sole proprietor of M/s. Sound of Art, engaged in the trade of purchase of Audio rights of leading film songs for local and overseas marketing, acquisition of master spools recording therefrom into audio cassettes, manufacture, sale and distribution of audio cassettes and allied activity. In 1994, the defendant produced a Tamil film ‘Kadalan’ and its negative rights was held by Rachana Pictures, of which the defendant is the sole proprietor. In March 1994, the defendant approached the pl aintiff for the distribution and sale of the sound track and songs of the film ‘Kadalan’, for which an agreement was entered into between the parties on 30.5.1994. Under the said agreement, the defendant had assigned all the rights and interests including the sound recordings in respect of the film ‘Kadalan’ to the plaintiff for a consideration of Rs. 12,50,000/-, which sum was paid by the plaintiff vide cheque dated 9.3.1994. The defendant sought a loan for Rs. 50.00 lakhs from the plaintiff promising to repay the same within four mon ths. The plaintiff disbursed the said loan of Rs. 50.00 lakhs by way of ten cheques each for Rs. 5.00 lakhs dated 16.5.94 and 8.6.94 respectively. After the expiry of four months, the plaintiff contacted the defendant in October 1994 and requested him to repay the said loan. A legal notice was issued on 20.9.1995, in this regard. The defendant sent a reply dated 7.10.1995, alleging that he had not taken any loan and the amount of Rs. 62.50 lakhs received from the plaintiff was only towards staggered pay ments for overseas rights of the film ‘kadalan’, and that though the consideration agreed upon orally was Rs. 1.00 crore, it was restricted to Rs. 12.50 lakhs. The loan of Rs. 50.00 lakhs is totally separate, from and independent of the purchase of audio rights of ‘Kadalan’. Hence the suit. 3. In the written statement filed by the defendant, it is alleged that the plaint does not disclose any cause of action against the defendant. 1.00 crore, it was restricted to Rs. 12.50 lakhs. The loan of Rs. 50.00 lakhs is totally separate, from and independent of the purchase of audio rights of ‘Kadalan’. Hence the suit. 3. In the written statement filed by the defendant, it is alleged that the plaint does not disclose any cause of action against the defendant. The agent has no locus standi to and cannot institute the suit against the defendant on the basis of the alleged power. The defendant did not want a loan of Rs. 50.00 lakhs for his film business from the plaintiff. He is not liable to pay the suit claim. The Audio rights of the movie Kadalan could not have been sold to the plaintiff, since they were selling on all time high and it was not sold to the plaintiff for Rs. 12.50 lakhs. The plaintiff agreed to pay a total consideration of Rs. 1.00 crore as price for the audio/CDs rights of the said movie. The plaintiff assured the defendant that as he was not sure of the market condition and the potential for the cassettes he is not putting the whole amount in writing but agreed to pay the amount originally bargained in staggered instalments and made the first payment. In this context only the agreement was entered into between the parties. The amount of Rs. 50.00 lakhs was not received as a loan but was a part of the payment due to the defendant. It is inconceivable that the parties who have no prior transactions between them, could have entered into a loan transaction and that the plaintiff could have given such a huge amount without taking any loan document and security. The payment was not a loan and hence no interest is payable much less at 12% p.a. from the date of payment and at 24% p.a. after the suit. In pursuance of the agreed terms, between the parties during March, May and June, 1994, the plaintiff is bound to pay to the defendant the remaining amount of Rs. 37,50,000/- being the balance of the sale price for the audio and CDs rights. He is also liable to pay interest on the balance amount at 12% per annum. Though the defendant is entitled to claim interest from October 1994, he is restricting his claim for interest to the period from October 1995. 37,50,000/- being the balance of the sale price for the audio and CDs rights. He is also liable to pay interest on the balance amount at 12% per annum. Though the defendant is entitled to claim interest from October 1994, he is restricting his claim for interest to the period from October 1995. The defendant makes a counter claim which the plaintiff is bound to pay with interest at 12% p.a. Hence the suit filed by the plaintiff may be dismissed with costs and the counter claim of the defendant for Rs. 40,50,000/- together with interest at 12% per annum from the date of counter claim till realisation may be decreed. 4. On the above pleadings, the following issues were framed: 1) Whether the defendant had borrowed a sum of Rs. 50,00,000/- from the plaintiff under 10 cheques, each for a sum of Rs. 5,00,000/-? 2) Whether there could be an oral agreement contrary to the terms and conditions of the assignment agreement dated 30.5.1994 in and by which the plaintiff agreed to pay a sum of Rs. 12,50,000/- to the defendant for the audio rights of the film Kadalan? 3) Whether the sum of Rs. 62,50,000/- has been received by the defendant towards the staggered payment of consideration for the overseas rights of the film Kadalan? 4) Whether the plaintiff is entitled to a decree for the recovery of Rs. 59,75,000/- together with interest at the rate of 12% per annum from the date of plaint till date of realisation? 5) Whether the defendant is entitled to a decree for Rs. 37,50,000/- as pleaded by him in the written statement as counter claim? 5. ISSUES 1 to 5: — The plaintiff has filed this suit seeking for a decree for a sum of Rs. 59,75,000/-with subsequent interest alleging that the defendant got a loan of Rs. 50.00 lakhs from the plaintiff promising to repay within four months time, which he did not and hence he has filed the suit for recovery of the said sum with subsequent interest. Contesting the said claim by the plaintiff, the defendant has made a counter claim seeking a decree against the plaintiff for a sum of Rs. 40.50 lakhs toge ther with subsequent interest. 6. The plaintiff examined himself as P.W.1. He would depose that the defendant was introduced to him by singer K.J. Jesudoss in 1994. Contesting the said claim by the plaintiff, the defendant has made a counter claim seeking a decree against the plaintiff for a sum of Rs. 40.50 lakhs toge ther with subsequent interest. 6. The plaintiff examined himself as P.W.1. He would depose that the defendant was introduced to him by singer K.J. Jesudoss in 1994. He purchased audio rights for Tamil film Kadalan from the defendant, for which he paid Rs. 12.50 lakhs to the defendant, by way of cheque dated 9.3.1994. He appointed Mr. T. Venkatachalam as his power of attorney and he signed the agreement on his behalf. The defendant approached him for a loan of Rs. 50.00 lakhs and he gave him the said loan. The defendant promised to repay the loan within four months. On 16.5.94 he gave five cheques each for Rs. 5.00 lakhs and another five cheques each for Rs. 5.00 lakhs in the month of June. The defendant has encashed all the ten cheques and the amount has been credited from his account. They did not repay the amount as promised by him. Hence he sent a legal notice on 20.9.1995. The defendant sent a reply stating that the plaintiff obtained overseas right for the film Kadalan for a sum of Rs. 1.00 crore and he owed to him Rs. 37.50 lakhs. Ex.A1 is the power of attorney executed in favour of Venkatachalam. The registered agreement dated 30.5.1994 is marked as Ex. A2. Ex. A3 is the memo attached to the cheque book showing the details of the cheques and the amount. Ex. A4 is the copy of the notice issued by the plaintiff. The reply sent by the defendant is marked as Ex.A5. Ex. A6 is the power of attorney given to the plaintiff authorising to file the suit. 7. The defendant examined himself as D.W.1. He would state that the plaintiff was introduced to him by Mr. Mahesh George at Chennai, who was in the audio business. When the defendant was discussing with the plaintiff regarding the audio rights of Kadalan Mr. Magesh George was also there. The plaintiff told him that he was interested only in getting overseas rights for the movie and that he would give Rs. 1.00 crore for getting the said audio rights. The defendant wanted the said amount of Rs. 1.00 crore viz. Rs. 25 lakhs as cheque or DD and the balance of Rs. Magesh George was also there. The plaintiff told him that he was interested only in getting overseas rights for the movie and that he would give Rs. 1.00 crore for getting the said audio rights. The defendant wanted the said amount of Rs. 1.00 crore viz. Rs. 25 lakhs as cheque or DD and the balance of Rs. 75.00 lakhs in the form of cash in order to avoid income tax problem. The plaintiff told him that he would give Rs. 12.50 lakhs only as cheque and the balance in the form of cash. He gave Rs. 12.50 lakhs by way of cheque. After the agreement, the plaintiff changed his stand and told him that he would give the balance amount also in the form of cheque and gave him Rs. 50.00 lakhs by way of cheque. When the defendant refused to receive the same, the plaintiff told him that he would have a problem with the bank authorities if the amount is paid by way of cash. The defendant has showed the said amount of Rs. 50.00 lakhs as income in his income tax statement. 8. Arguing for the plaintiff, the learned counsel would submit that the plaintiff has filed the suit for recovery of Rs. 50.00 lakhs advanced to the defendant by the plaintiff as loan, that the plaintiff was introduced to the defendant by the famous singer Jesudoss; that in March 1994 the plaintiff agreed to purchase the audio rights of the Tamil film Kadalan from the defendant for a sum of Rs. 12.50 lakhs and also paid the same by way of a cheque on 9.3.94; that thereafter the defendant approached the plaintiff for a loan of Rs. 50.00 lakhs; that the plaintiff a resident of the United Arab Emirates was informed by his employees that the defendant was a very successful producer and in order to have the further business with the defendant, the plaintiff gave the said loan amount; that the plaintiff who was not familiar with the Indian film industry, trusted the defendant and gave the loan as requested by him; that the loan was given in two instalments of Rs. 25.00 lakhs each on 16.5.1994 and 8.6.1994; that the plaintiff executed a power of attorney in favour of one Venkatachalam authorising him to enter into the agreement with the defendant in respect of the audio rights; that the agreement was entered into and executed between the power of attorney and the defendant on 30.5.1994; that the agreement could not be signed on 9.3.94 when the consideration was paid, as the plaintiff was in a hurry to leave India, which fact has been deposed to by the plaintiff; that the defendant who promised to pay the amount within the stipulated time of four months failed to do so; that the defendant also started avoiding the plaintiff; that the plaintiff had no option than to issue a legal notice on 20.9.1995 demanding the repayment; that the defendant issued reply on 7.10.95, wherein he falsely contended that the total sale consideration of the audio rights was Rs. 1.00 crore and Rs. 50.00 lakhs was paid only as a part payment of the consideration; that it is pertinent to note that the defendant who came forward with his defence had received the sum of Rs. 25.00 lakhs on 16.5.94 and had executed an agreement on 30.5.94 agreeing that the total consideration for the audio rights was only Rs. 12.50 lakhs; that the defence was raised for the first time by the defendant only in his reply notice to get over his liability; that the agreement dated 30.5.1994 is a registered agreement and was executed by the defendant himself after reading and understanding the contents therein, and in his evidence has categorically admitted that the agreement was scrutinised by the staff and thereafter he himself perused the same, after which he signed; that he has also stated that he was the final authority in all such matters; that Ex. A2 agreement clearly stipulated that the sale consideration was only Rs. 12.50 lakhs and the clause 9 of the agreement further stipulates that any modification or alteration or variation of the agreement should be valid and binding on the parties only if it was reduced into writing. Added further the learned counsel that Ss. A2 agreement clearly stipulated that the sale consideration was only Rs. 12.50 lakhs and the clause 9 of the agreement further stipulates that any modification or alteration or variation of the agreement should be valid and binding on the parties only if it was reduced into writing. Added further the learned counsel that Ss. 91 and 92 of the Evidence Act clearly prohibit any oral evidence, which would run contrary to the terms and conditions of the contract; that in support of his contention, the learned counsel relied on 1) AIR 1928 Madras 546; 2) AIR 1930 Madras 659; 3) 1955 (1) MLJ 221 ; 4) AIR 1958 S.C. 448 and 5) AIR 1961 Madras 28; that the case of the defendant that the total sale consideration was Rs. 1.00 crore and he wanted the balance of Rs. 87.50 lakhs by cash is opposed to public policy and the alleged oral agreement put forward by the defendant and even if found to be true, it is unenforceable in law and hit by S. 23 of the Contract Act; that any agreement plays fraud on the revenue or generates black money would be considered to be sufficiently tainted so as to disentitle such a person from enforcing the contract; that the fact that the said sale consideration for the audio rights was only Rs. 12.50 lakhs is fortified in view of the agreement found under Ex. A2 which shows the consideration of Rs. 12.50 lakhs; that the contention of the defendant that the balance of consideration was agreed to be paid by cash has to be rejected as the first instalment of Rs. 25.00 lakhs and the second instalment of Rs. 25.00 lakhs were received by him only by way of 10 cheques, which would clearly indicate that there could not have been any agreement for the receipt of the balance of consideration by way of cash, since all these amounts were received by way of cheques and they were given credit to in his account; that if this Rs. 25.00 lakhs were received by him only by way of 10 cheques, which would clearly indicate that there could not have been any agreement for the receipt of the balance of consideration by way of cash, since all these amounts were received by way of cheques and they were given credit to in his account; that if this Rs. 25.00 lakhs was received on 16.5.1994 towards the sale consideration, the same would have been included in the agreement itself; that the defendant has not produced his income tax returns and account books, though he has filed an application to reopen and mark those documents; that it is pertinent to note that at the time cross-examination he has undertaken to produce the same also; that the non-production of the same would lead to the presumption that the defendant has suppressed the best evidence available in his hand and lead to the presumption of adverse inference; that even according to the defendant, the plaintiff had received the master copies of the audio rights and had made profits in crores and if so the defendant would not have kept quiet for one and half years, after the agreement was signed without getting the huge amounts of money towards the balance as per the agreement, but he has raised the false story for the first time only in his reply notice, after the demand was made by the plaintiff for the recovery of his loan; that the defendant also refused to answer material questions like the date of release of the picture, the sale price of the other films, etc., that regarding the questions to why the plaintiff had not entered into an agreement on 9.3.1994 when he gave the amount of Rs. 12.50 lakhs the plaintiff would submit that he was to return urgently to his country; that it is true that the recital in Ex. A2 states that the plaintiff agreed to pay a sum of Rs. 12.50 lakhs; that the payment has already been made on 9.3.1994; that the agreement was prepared by his power of attorney agent and the defendant and the plaintiff had no opportunity to scrutinise the document and apart from that the defendant himself has admitted the receipt of the amount on 9.3.1994; that from Ex. P2 agreement it would be clear that the consideration for the audio rights was only Rs. P2 agreement it would be clear that the consideration for the audio rights was only Rs. 12.50 lakhs and in so far as Rs. 50.00 lakhs was concerned, the defendant has admitted the receipt of the same and hence the burden of proving that the amount was received only as a part of the consideration of the audio rights lies only on the defendant, which the defendant has miserably failed to prove; that though the defendant has come forward with the counter claim of Rs. 37.50 lakhs, he has not adduced any evidence to prove the same and thus from the available evidence, it would be clear that the defendant has borrowed a loan of Rs. 50.00 lakhs from the plaintiff, which he is liable to pay with the interest and the counter claim made by the defendant has got to be rejected as false. 9. Vehemently opposing each and every one of the above contentions of the plaintiffs side, the learned counsel for the defendant would submit that the claim for recovery of Rs. 50.00 lakhs with interest is false and contrary to the agreement between the parties; that the plaintiff has filed the suit stating that he trusted and gave the loan to the defendant; that no document is filed to substantiate the same except the oral evidence of the plaintiff; that it is pertinent to note that there is a specific averment in the plaint that it was a loan, but it was changed to hand loan at the time of evidence, which would indicate the lack of evidence; that it was agreed between the parties that the consideration for the audio rights was Rs. 1.00 crore; that a sum of Rs. 12.50 lakhs found in Ex. A2 agreement represents only the advance for the audio rights; that the payment of Rs. 50.00 lakhs was part of the bargain of the contract of Rs. 1.00 crore; that the defendant was having surplus funds during the relevant time and therefore, there was no necessity to avail loan or borrow from anybody; that the plaintiff who owed Rs. 37.50 lakhs to the defendant being the balance of the agreed price, instead of making the payment has come forward with the false claim for Rs. 1.00 crore; that the defendant was having surplus funds during the relevant time and therefore, there was no necessity to avail loan or borrow from anybody; that the plaintiff who owed Rs. 37.50 lakhs to the defendant being the balance of the agreed price, instead of making the payment has come forward with the false claim for Rs. 50.00 lakhs and interest; that the plaintiff admittedly a stranger to India and to business transactions and to the defendant also could not have without any document lent any money and that too the large sum of Rs. 50.00 lakhs and especially when he took pains to register the agreement under Ex. A2 and power deeds Exs. A1 and A6; that it is pertinent to note that these documents are not compulsorily registerable under Sec. 17 of the Registration Act; that no ordinary prudent businessman would lend Rs. 50.00 lakhs that too in two instalments without any record and document whatsoever; that a perusal of the cheque leaves would show that he had signed them in English while in all other documents like the two powers of attorney he has signed in language not known; that the address given by the plaintiff in the power deeds are not known to him; that it is pertinent to note that he never stayed in India and he has no friends in India also; that it is also pertinent to note that he had not made any enquiries about the financial position and status of the defendant nor had he called for particulars of information like balance sheet, etc., before March 1994 and under such circumstances no one like the plaintiff, a businessman could have lent any money whatsoever; that Ex. A2 agreement did not reflect the correct position; since the price given in the agreement was wrong; that the factual position regarding the amount was not mentioned when especially two payments were made only on 9.3.94 and 16.5.94; that the words used in the agreement was “agrees to pay Rs. 12.50 lakhs” as consideration and the amount of Rs. 12.50 lakhs as per cinema practice could not be the correct amount as full amount would not be put. 12.50 lakhs” as consideration and the amount of Rs. 12.50 lakhs as per cinema practice could not be the correct amount as full amount would not be put. Advancing his arguments further, the learned counsel would submit that in the absence of any document for loan, there cannot be any presumption of loan in respect of the transaction in question; that the burden of proving that it was a loan was heavily on the plaintiff but he has not discharged the same and under any circumstance the onus of proof has not shifted to the defendant; that the plaintiff cannot state that his claim for Rs. 50.00 lakhs and interest was proved in the absence of proof of the defence; that the plaintiff should succeed or fail on his own pleadings or documents and cannot take advantage of the defect or weakness in the defence to prove his claim; that the plaintiff has failed to send a rejoinder to the reply under Ex. A4, wherein it has been categorically stated that it was the plaintiff who was liable to pay Rs. 37.50 lakhs to the defendant; that it is pertinent to note that no reply statement has also been filed to the counter-claim; that the contention of the plaintiffs side that the plaintiff being a foreigner has not understood the trade practice in India cannot be accepted, since the plaintiff a foreigner did not clothe him with any special status; that the signing of the agreement for Rs. 12.50 lakhs when the agreed price was for Rs. 12.50 lakhs when the agreed price was for Rs. 1.00 crore, was as per the prevalent cinema practice; that a scrutiny of the evidence of the plaintiff would clearly reveal that he has not come out with the truth while the evidence of the defendant speaks of frankness and honesty; that the admission of the defendant that in all the cinema transactions black money was involved was not an illegal act as projected and that such moneys are accounted for in other ways and it cannot be a ground to disbelieve him; that on the contrary it shows the brutal frankness of the defendant; that Ex.A2 cannot be used to prove the plaintiffs claim; that when it was not available for the defendant under Sec. 92 of the Evidence Act, it cannot be in the same breath, be available to the plaintiff to say that it is a loan; that the non-production of the income tax records can at best be considered as the defendants failure to substantiate his case, but it cannot be used against the defendant or to prove the plaintiffs claim and hence no adverse inference can be drawn; that the non-production of the copy of the demand notice for the balance of Rs. 37.50 lakhs from the defendant could not be a ground for the plaintiff to say that his claim was proved and a demand in fact was made on 14.7.1995 which was not denied by the plaintiff; that it is pertinent to note that the letter on 14.7.1995 was well referred to in the reply notice under Ex.A4; that it is significant to note that there was no suggestion by the plaintiff that the defendant was not having surplus funds during the relevant period and the suggestion in the cross-examination would indicate the mega success of the movies both on popularity and on collection accounts; that the oral evidence of P.W.1 against the oral evidence of D.W.1 is to be weighed; that the version given by D.W.1 is more reliable and hence the probable and possible position in the light of the oral and documentary evidence could be that Ex.A2 did not reflect the correct amount; that there was much more than what meets the eye; that both the plaintiff and the defendant were businessman and they do not act on trust; that this Rs. 25.00 lakhs paid on 16.5.1994 could only be a part of the deal before Ex.A2; that the defendant had surplus funds which was not denied; that there was no necessity for the defendant to borrow or take any loan; and that the subsequent payment of Rs. 25.00 lakhs could only be a part of the deal and in view of all the above, the plaintiffs claim has got to be rejected and the counter claim has got to be allowed with costs. 10. As seen above, the facts admitted by the parties are that the plaintiff, a resident of United Arab Emirates is a businessman engaged in the trade of purchase of audio rights of leading film songs for local and overseas marketing, acquisition of master spools recording therefrom into audio cassettes, manufacture, sale and distribution of audio cassettes and allied activity; that the defendant is carrying on his business of film making in Tamil Nadu and he produced the Tamil film Kadalan in the year 1994 and the negative rights in respect of the said film was held by Rachana Pictures a proprietary concern of the defendant; that in pursuance of a meeting between the plaintiff and the defendant in March 1994, an agreement for the distribution and sale of the sound track and songs of the said film Kadalan was entered into on 30.5.1994 and it was registered, marked as Ex.A2; that as per the said agreement, the defendant had assigned all the rights and interest including the sound recordings in respect of the said film to the plaintiff. The plaintiff gave a cheque to the defendant on 9.3.1994 for a sum of Rs 12.50 lakhs drawn on Hongkong & Shanghai Banking Corporation Limited which was encashed by the defendant. Under Ex.A2 registered agreement, the consideration for the assignment of all the rights and interest in respect of the said film is found as Rs. 12.50 lakhs. It is not in dispute that the consideration of Rs. 12.50 lakhs found under the agreement dated 30.5.1994 was received by way of a cheque dated 9.3.1994 as stated above. 11. While the admitted facts are so, the plaintiff has come forward with the civil action for recovery of the said sum alleging that the defendant borrowed from him Rs. 50.00 lakhs i.e. Rs. 25.00 lakhs on 16.5.1994 by way of five cheques each for Rs. 5.00 lakhs and Rs. 11. While the admitted facts are so, the plaintiff has come forward with the civil action for recovery of the said sum alleging that the defendant borrowed from him Rs. 50.00 lakhs i.e. Rs. 25.00 lakhs on 16.5.1994 by way of five cheques each for Rs. 5.00 lakhs and Rs. 25.00 lakhs on 8.6.94 by way of five cheques each for Rs. 5.00 lakhs. Vehemently opposing the said claim, the defendant has come with the counter claim specifically stating that the plaintiff agreed to pay a total consideration of Rs. 1.00 crore as price for the audio/CD. rights of the movie Kadalan and apart from the receipt of Rs. 12.50 lakhs on 9.3.1994, the above 10 cheques for Rs. 50.00 lakhs were received as the part payment due to the defendant and thus the plaintiff is bound to pay to the defendant the remaining amount of Rs. 37.50 lakhs being the balance of the sale price, as per the agreement between the parties. Thus the first controversy between the parties is as to the sale consideration for the audio/CD. rights in respect of the film Kadalan to the plaintiff. It is specifically contended by the plaintiffs side that the consideration was only Rs. 12.50 lakhs. But according to the defendant it was Rs. 1.00 crore. It is an admitted position that the plaintiff paid to the defendant Rs. 12.50 lakhs on 9.3.1994 by a cheque and an agreement was also entered into under Ex.A2 on 30.5.1994. The contention putforth by the plaintiffs side that the payment of Rs. 12.50 lakhs made by the plaintiff on 9.3.1994 to the defendant is the amount found under Ex.A2 agreement dated 30.5.1994 is not disputed by the defendants side. At this juncture it would be more appropriate and advantageous to refer to the relevant part of the agreement dated 30.5.1994 marked as Ex.A2, which is as follows: “.O: — Consideration: As consideration for the assignor assigning the right to assignee as set out in clause 3 above the assignee agrees to pay a sum of Rs. 12,50,000/- (Rupees Twelve lakhs and Fifty thousand only) for the above mentioned releases.” As seen above, the agreement clearly stipulates that the sale consideration was only Rs. 12.50 lakhs and nothing more. 12,50,000/- (Rupees Twelve lakhs and Fifty thousand only) for the above mentioned releases.” As seen above, the agreement clearly stipulates that the sale consideration was only Rs. 12.50 lakhs and nothing more. Further clause 9 of the agreement under Ex.A2 reads as follows: “9.O: Miscellaneous: 9.1 The parties herein hereby specifically agree that in respect of disputes arising out of this agreement in its entirety and any amendment, modification or alternation thereof shall be valid and binding only if reduced into writing and executed by both parties.” By this clause the parties have already agreed that any variation of the agreement shall not be valid and binding on the parties if it was not reduced into writing. In the instant case in so far as the assignment transaction between the parties in respect of the audio rights in question is concerned, no document except Ex.A2 agreement is available. Thus the contention of the plaintiffs side that the consideration for the assignment transaction of the audio rights was only Rs. 12.50 lakhs is fully fortified by the recitals under Ex.A2 agreement. But it would be very difficult to hold that there was an agreement for a total consideration of Rs. 1.00 crore as price for the audio/CD rights of the movie Kadalan in the absence of any material, except the interested and uncorroborated testimony of the defendant. As rightly contended by the learned counsel appearing for the plaintiff, Ss 91 and 92 of the Evidence Act would go into play clearly prohibiting the oral evidence, which is placed by the defendants side contrary to the terms and conditions of the written agreement under Ex.A2. Sec 91 of the Evidence Act based on “best evidence rule” can be called as an exclusive rule, since it excludes the admission of oral evidence for proving the contends of the documents, except in cases where the secondary evidence is allowed to be let in under the relevant provisions of the Evidence Act. Needless to say that the best evidence about the contents of the document is the document itself and the production of the document what is required under Sec. 91 is in proof of the contents. Sec. 92 of the Evidence Act does not bar the consideration of any document. But it prohibits the admission of oral evidence which would be contrary to the terms of the agreement. Sec. 92 of the Evidence Act does not bar the consideration of any document. But it prohibits the admission of oral evidence which would be contrary to the terms of the agreement. Undoubtedly Ss 91 and 92 of the Evidence Act lay a complete bar to set up a case that the consideration for the transaction mentioned in the agreement is more than what is found in the conveyance or in the contract. The first Bench of this Court had an occasion to consider this aspect in a decision reported in AIR 1965 Madras 147 = (1964) 77 L.W. 622 (K.S. Narasimhachari v. The Indo Commercial Bank Ltd and another) and held that the party may be entitled to show that the consideration was different kind from the consideration shown in the document or that the full consideration shown in the document has not been paid or there was a failure of consideration, but he is not entitled to state that the real consideration was more or less the consideration shown in the agreement. It is admissible in evidence to prove the existence of a separate oral agreement as to any matter of which the document is silent, provided the said oral agreement is not inconsistent with the terms of the contract. If the document is not silent on any particular matter, a party cannot be permitted to adduce oral evidence to prove the existence of a separate oral agreement, since the same is not admissible in evidence. In the said decision relied on by the plaintiffs side and reported in AIR 1965 Madras 147, = (1964) 77 L.W. 622 the First bench of this Court has held thus; “Under the terms of the proviso (1) of S. 92 of Evidence Act, while it will be competent to the party to a contract to adduce evidence to prove want of consideration or failure of consideration or a difference in kind of consideration specified in the document, it will not be competent for him to prove a variation of the consideration recited in the document. Consideration specified in a document will be one of the terms of the contract evidenced by it. Thus, where consideration although specified to be of a particular kind; e.g. cash, can and will be shown to be for different kind or it can be shown that it is false and that there was really no consideration. Consideration specified in a document will be one of the terms of the contract evidenced by it. Thus, where consideration although specified to be of a particular kind; e.g. cash, can and will be shown to be for different kind or it can be shown that it is false and that there was really no consideration. But this is different from a case where the party admits the passing of consideration specified in the document, but attempts to show that the consideration was either less or more than what is specified. This, the party is not allowed to do.” 12. It is not the case where the defendant has come forward to state that the said agreement under Ex.A2 is tainted with any one of the invalidating factors like fraud, cheating, undue influence, coercion, etc. But on the contrary, the defendant has categorically admitted that the agreement was scrutinised by his staff and thereafter, he perused the document, after which he signed the same. He would further add that he was the final authority in all such matters. It is not his evidence that he signed the document without seeing or understanding the contents of the same. Though a sum of Rs. 12.50 lakhs was paid by the plaintiff on 9.3.94, towards the said transaction, the agreement was not entered into on the said date. The plaintiff has stated that the agreement could not be entered into that day because he was in hurry to leave India. While it is not disputed that the payment of Rs. 12.50 lakhs made on 9.3.94 was exactly the amount incorporated under Ex. P2 agreement, the defendant had no explanation to offer how he got Rs. 25.00 lakhs on 16.5.1994. Had the contention of the defendants side that the consideration was Rs. 1.00 crore is true, this payment of Rs. 25.00 lakhs on 16.5.1994 admittedly received by the defendant even before the date of Ex. A2 viz. 30.5.1994 could have also been mentioned in the agreement. It is not the case of the defendant that there was any other transaction between the parties except the transaction of assignment of audio rights in favour of the plaintiff. The defendant has also specifically pleaded and adduced evidence stating that Rs. 50.00 lakhs claimed by the plaintiff was only a part of the contract of the assignment transaction. In order to prove that this payment of Rs. The defendant has also specifically pleaded and adduced evidence stating that Rs. 50.00 lakhs claimed by the plaintiff was only a part of the contract of the assignment transaction. In order to prove that this payment of Rs. 50.00 lakhs by the plaintiff to the defendant was an independent loan transaction, apart from his oral testimony, the plaintiff has proved the payment of Rs. 50.00 lakhs to the defendant on two dates by way of 10 cheques 13. In pursuance of a meeting that took place in March 1994, the transaction in respect of the assignment of audio rights by the defendant in favour of the plaintiff has culminated in the agreement Ex. A2. Admittedly on 9.3.1994 a sum of Rs. 12.50 lakhs was paid by the plaintiff to the defendant which found place under Ex. A2 agreement. The plaintiff has paid Rs. 25.00 lakhs by way of five cheques on 16.5.94 and Rs. 25.00 lakhs on 8.6.94 by way of another five cheques. If the consideration of Rs. 1.00 crore was true, the balance to which the defendant was entitled to receive from the plaintiff as on 8.6.94 was Rs. 37.50 lakhs. From the evidence of the defendant, it would be clear that he has given the master copies of the audio rights to the plaintiff with which he had made profits in crores. The defendant has not made any demand on the plaintiff in order to recover the alleged balance of Rs. 37.50 lakhs for a period of one and half years. It remains to be stated that it was the plaintiff who issued a legal notice calling for the loan of Rs. 50.00 lakhs from the defendant. The defendant while replying the said demand, for the first time has stated that the sale consideration was Rs. 1.00 crore and the plaintiff was to pay Rs. 37.50 lakhs. The contention of the defendants side that demanding the said sum of Rs. 37.50 lakhs, a letter was addressed to the plaintiff on 14.7.1995 cannot be countenanced for the simple reason that not even a copy of the said letter is filed into the court. All the above would be indicative of the fact that the contention of the plaintiffs side that the consideration for the assignment of the audio rights by the defendant to the plaintiff was only Rs. 12.50 lakhs as found under Ex. All the above would be indicative of the fact that the contention of the plaintiffs side that the consideration for the assignment of the audio rights by the defendant to the plaintiff was only Rs. 12.50 lakhs as found under Ex. A2 agreement and not Rs. 1.00 crore as contended by the defendants side. 14. It is the specific case of the plaintiff that the plaintiff advanced a loan of Rs. 50.00 lakhs to the defendant. The plaintiff in his averments in the plaint has stated that on 16.5.94, he gave 5 cheques each for Rs. 5 lakhs and on 8.6.94 five cheques each for 5.00 lakhs and has given all necessary particulars. The defendant has also admitted that he received all the cheques from the plaintiff and encashed the same. Thus it would be clear that he has received the said sum of Rs. 50.00 lakhs by way of 10 cheques. It cannot be stated that it is a case where it lacks evidence in respect of the payment by the plaintiff and the receipt by the defendant in view of the above said piece of evidence. Now the question would be whether this amount of Rs. 50.00 lakhs was a loan advanced by the plaintiff or the part of the consideration for the assignment transaction between the parties. P.W.1 has deposed that he came to know the plaintiff and his film productions and in his acquaintance he reposed confidence and gave this Rs. 50.00 lakhs as loan when there was a request from the defendant for the same. It is true that the plaintiffs evidence that he gave this Rs. 50.00 lakhs to the defendant as loan is not corroborated by any other evidence except the documentary evidence through which the payments were made. At this juncture it remains to be stated that the defendant who admits the receipt of Rs. 50.00 lakhs comes forward with a defence to state that this Rs. 50.00 lakhs would represent only the part of the consideration of the assignment transaction. The court may hasten to say that the burden of proving that this amount of Rs. 50.00 lakhs was received by the defendant only as a part of the consideration of the assignment transaction would rest only on the defendant. Except the parties, the only one person who could speak about the assignment transaction was Mr. The court may hasten to say that the burden of proving that this amount of Rs. 50.00 lakhs was received by the defendant only as a part of the consideration of the assignment transaction would rest only on the defendant. Except the parties, the only one person who could speak about the assignment transaction was Mr. Magesh George one of the witnesses to Ex. A2 agreement. The plaintiff has stated that Magesh George is the person who is acquainted to the defendant. The defendant has admitted that he knew Magesh George in the Malayalam film as a business man and was dealing with him in cassette business. Thus from the above piece of evidence, it would be very clear that Mr. Magesh George who was very well acquainted with the defendant, his business and dealings and present at the time of the discussions between the plaintiff and the defendant in respect of the assignment transactions and who was also one of the witnesses to the document, has not been examined by the defendant for the reasons best known to him. The defendant after his assertion in his evidence that this amount of Rs. 50.00 lakhs received from the plaintiff was shown only as income in his Income Tax returns and the return was accepted by the income tax authorities and have passed assessment orders, made an Application in No. 2934/2001 seeking permission of this Court to examine himself and for production of the income tax documents. In his affidavit in support of the said application, the defendant has stated that he has disclosed the said amount of Rs. 50.00 lakhs as income and the tax authorities have accepted the same and he would submit the relevant income tax records. The said application was allowed on 10.7.2001 permitting the defendant to be recalled for the production of the said documents. Neither the defendant was recalled nor has he produced the income tax returns, account books and orders passed thereon. The defendant who has specifically stated in his evidence that the receipt of Rs. 50.00 lakhs from the plaintiff was shown only as an income and accounts, returns and orders in that regard are also available has suppressed to produce the same before the court despite an opportunity was given to him by allowing the application filed by him. The defendant who has specifically stated in his evidence that the receipt of Rs. 50.00 lakhs from the plaintiff was shown only as an income and accounts, returns and orders in that regard are also available has suppressed to produce the same before the court despite an opportunity was given to him by allowing the application filed by him. In view of the suppression of the available documentary evidence, the court has to necessarily draw an adverse inference that if those documents are made available, it would certainly act against the defence theory that the said Rs. 50.00 lakhs was treated only as an income during the relevant period. 15. One of the strong circumstances which speaks of the falsity of the defence that the said sum of Rs. 50.00 lakhs was paid as a part of the consideration is that the defendant has received Rs. 50.00 lakhs by way of 10 cheques from the plaintiff which were given credit to in the defendants account. It is contended by the defendants side that though the consideration agreed was Rs. 1.00 crore, only Rs. 12.50 lakhs was shown in Ex. P1 agreement and the balance was to be paid in cash in order to avoid income tax problem. The defendant has admitted that normally black money was paid in cash. But the defendant has no explanation to offer how and under what circumstances he received Rs. 50.00 lakhs by way of 10 cheques and credited in his account and made a deviation from the usual practice. The said receipt of Rs. 50.00 lakhs by way of 10 cheques would be indicative of the fact that it could not have been the part of the consideration for the assignment transaction. The contention of the defendants side that Ex. A2 did not reflect the correct position has to be rejected as one without merit whatsoever. Thus the defendant has miserably failed to prove that the payment of Rs. 50.00 lakhs by the plaintiff to the defendant by way of 10 cheques was only a part of the consideration of the assignment transaction, but on the contrary all the available evidence would indicate that it was only a loan transaction independent from the audio assignment transaction. 16. In order to substantiate the contention of the plaintiffs side that the consideration for assignment transaction of audio rights was only Rs. 16. In order to substantiate the contention of the plaintiffs side that the consideration for assignment transaction of audio rights was only Rs. 12.50 lakhs, the plaintiff has relied on Ex. A2 agreement. As stated above, the recitals would indicate the same. In so far as the contention of the defendant that the consideration was Rs. 1.00 crore is concerned, it is not supported by any evidence except the uncorroborated and interested testimony of P.W.1. Apart from that the said contention cannot also be accepted since it would be contrary to Ex. A2 agreement. It remains to be stated that the defendant has well admitted the receipt of Rs. 25.00 lakhs on 16.5.94 and Rs. 25.00 lakhs on 8.6.94 by way of 10 cheques. In the absence of any proof to hold that this Rs. 50.00 lakhs represent the part of the consideration of the contract of audio rights and in the absence of any other transaction between the parties, it has to be necessarily held that it was only a loan transaction independent of the contract of audio rights, as putforth by the plaintiff. The learned counsel for the defendant would submit that the plaintiff a stranger to India and to business transactions and to the defendant could not have lent any money without any document and especially when he got the assignment agreement under Ex. A2 registered. He would further add that any ordinary prudent businessman would not have lent Rs. 50.00 lakhs without any record and even making any enquiry about the financial position and status of the defendant. It is true that the plaintiff is a foreigner who came to be introduced to the defendant, visited India and he was advised by his men to enter into early negotiation of the purchase of the audio rights in view of the competitions. Under such circumstances he has paid Rs. 12.50 lakhs on 9.3.94 even without entering into any agreement. This fact of receipt of Rs. 12.50 lakhs on 9.3.94 is admitted by the defendant. This would indicate the trust of the plaintiff reposed on the defendant and his urge to purchase the audio rights immediately in view of the competitions. From the evidence of P.W.1 it would be clear that from March 1994 to May 1994, he made a few visits to India. During those visits he should have had contacts with the defendant. This would indicate the trust of the plaintiff reposed on the defendant and his urge to purchase the audio rights immediately in view of the competitions. From the evidence of P.W.1 it would be clear that from March 1994 to May 1994, he made a few visits to India. During those visits he should have had contacts with the defendant. It is true that Ex. A2 agreement was registered. But the plaintiff has explained that he registered Ex. A2 agreement because it is an overseas right that he had obtained from him and he had to get it registered in Dubai and that he asked for the registration of Ex. A2 because he needed the same for registering his rights in his country. It has got to be borne in mind that the plaintiff did not part with this Rs. 50.00 lakhs to the defendant in cash, but he has given 10 cheques each for Rs. 5.00 lakhs and those amounts have also been encashed by the defendant through his account. 17. The contention of the defendants side that in the absence of any document of loan, the presumption of loan in respect of the transaction like this cannot be drawn cannot be accepted. It is to be borne in mind that in the instant case, the receipt of Rs. 50.00 lakhs is admitted by the defendant. The plaintiff has made payments of those amounts only through cheques and which were encashed by the defendant through his account and the defendant is unable to show that the said sum of Rs. 50.00 lakhs formed part of the assignment transaction. The plaintiff has not obtained any document from the defendant for advancing the said amount. But in view of the available evidence, the defendant cannot be permitted to take advantage of the absence of any document to contend that he did not receive the said sum by way of loan. It is true that the plaintiff has to succeed only on his pleadings and documents, but in the instant case, it is pertinent to note that the defendant has come forward with the counter claim stating that the consideration for the assignment of audio rights was Rs. 1.00 crore and out of the said consideration, the suit claim of Rs. 50.00 lakhs was paid as part of the same. While there is sufficient proof for the payment of Rs. 1.00 crore and out of the said consideration, the suit claim of Rs. 50.00 lakhs was paid as part of the same. While there is sufficient proof for the payment of Rs. 50.00 lakhs by the plaintiff and the receipt of the same by the defendant and in the absence of any proof to show that the said Rs. 50.00 lakhs formed part of the consideration of the assignment transaction, it can be safely concluded that the said Rs. 50.00 lakhs was only a loan independent of the assignment transaction. From the evidence of the plaintiff, it could be seen that he did not make any enquiries about the financial position and status of the defendant nor has he called for any particulars like the balance sheet, etc., during the relevant period. This would go to show not only confidence what the plaintiff reposed on the defendant, but also the ambition and avarice of the plaintiff to make crores of money by continuing his business with the defendant, who was then producing very successful films one after another. At this juncture it is pertinent to note that the plaintiff has parted with a sum of Rs. 12.50 lakhs on 9.3.94 in respect of the assignment transaction without getting any documents from the defendant on that day. It would be futile to contend that the defendant signed the agreement for Rs. 12.50 lakhs when the agreed price was for Rs. 1.00 crore and it was as per the prevalence in cinema practice. In view of Ex. A2 agreement which is unambiguous and leaving no doubt as to the quantum of consideration, any amount of evidence contrary to the terms therein cannot be accepted. The court has clearly pointed out the reasons that the defendant has thoroughly failed to prove the consideration as Rs. 1.00 crore, but on the contrary the consideration was only Rs. 12.50 lakhs as evidenced by Ex. A2. The court is of the view that the non-examination of Magesh George a witness to Ex. A2 agreement and who according to the defendant was well present at the time of the discussion with the plaintiff and the non-production of the income tax returns and assessment order, despite the evidence and the affidavit of the defendant stating that in his incomes tax returns he has shown Rs. A2 agreement and who according to the defendant was well present at the time of the discussion with the plaintiff and the non-production of the income tax returns and assessment order, despite the evidence and the affidavit of the defendant stating that in his incomes tax returns he has shown Rs. 50.00 lakhs only as income and not as loan, has not only affected the defence to a great extent leading to the truth of the counter claim, but also pointing to the truth of the plaintiffs claim. The contention putforth by the defendant in respect of the power of attorney do not merit any acceptance. The learned counsel for the defendant much relied on the oral testimony of the defendant stating that he was having surplus funds during the relevant period and there was no necessity for him to borrow or take loan from outsiders. There is no material to indicate that the defendant had surplus funds during the relevant period. Apart from that it has to be stated that the defendant received Rs. 50.00 lakhs from the plaintiff assuring to pay within 4 months and the said sum has also carried no interest. For the discussions made and reasons stated above, it has to be held that the defendant has borrowed a sum of Rs. 50.00 lakhs from the plaintiff under 10 cheques each for a sum of Rs. 5.00 lakhs as stated in the plaint; that the oral agreement putforth by the defendant contrary to the terms and conditions of Ex. A2 agreement dated 30.5.1994 cannot be accepted; that the contention of the defendant that he received Rs. 62.50 lakhs towards the staggered payment of consideration for the overseas rights of the film Kadalan has to be rejected as false and hence the plaintiff is entitled to get a decree for a sum of Rs. 59.75 lakhs till the date of the plaint and the defendant is not entitled to a decree for Rs. 37.50 lakhs as pleaded by him in his counter claim. The plaintiff has claimed only 12% interest from the date of the receipt of the loan till the date of the plaint. The court is of the view that it is reasonable to award future interest at 12% per annum from the date of plaint till realisation. The above issues are answered accordingly. 18. The plaintiff has claimed only 12% interest from the date of the receipt of the loan till the date of the plaint. The court is of the view that it is reasonable to award future interest at 12% per annum from the date of plaint till realisation. The above issues are answered accordingly. 18. In the result, the plaintiff is given a decree for a sum of Rs. 59,75,000/- with subsequent interest at 12% per annum from the date of plaint till realisation and with costs. The counter claim is dismissed and there shall be no order as to the costs.