Present: Lyall Grant and Akbar JJ.

NUGAWELA  v. GEORGE

20- D. C. Kandy, 34,559

    Sale-Action for purchase price-Plea of failure of consideration- Warranty of title-Vacant possession.

Where the plaintiff sued the defendant on a cheque given for the purchase price of an interest in land, it is open to the defendant to raise the defence of failure of consideration on the ground that the plaintiff had no title to the land sold by him.

PLAINTIFF sued defendant on a cheque which had been given as the purchase price of certain rights in land, but payment of which had been subsequently stopped. Defendant pleaded that there was a total failure of consideration, in that plaintiff had no right, title, or interest in the land. At the trial Counsel for defendant sought to raise certain issues with a view to proving this, but the District Judge disallowed them on the ground that on the execution of the deed plaintiff was entitled to immediate payment. Defendant appealed.

H. V. Perera, for defendant, appellant.-When a person is sued on a bill of exchange or cheque he can plead total failure of consideration. English law must apply (Chalmer's Bill