HON'BLE SRI JUSTICE SUBBA REDDY SATTI
APPEAL SUIT No.2159 of 2001
JUDGMENT:-
Assailing the judgment and decree, dated 29.06.2001
passed in O.S.No.56 of 1999 on the file of learned Senior Civil
Judge, Nandigama, defendant No.2 filed the present appeal.
2. For the sake of convenience and brevity, the parties shall
be referred to as they are arrayed in O.S.No.56 of 1999.
3. Originally suit O.S.No.212 of 1995 was filed on the file of
First Additional Sub-ordinate Judge, Vijayawada, against the
defendants for recovery of an amount of Rs.1,72,000/- principal
being Rs.1,00,000/-. Thereafter, the suit was transferred to
Senior Civil Judge, Nandigama and renumbered as O.S.No.56 of
1999.
4. The averments of the plaint, in brief, are that defendant
No.1 firm represented by defendant No.2 borrowed an amount of
Rs.1,00,000/- from the plaintiff on 25.02.1992 at Nandigama
promising to repay the amount with interest at 24% per annum.
Defendant No.2 having received consideration of Rs.1,00,000/-
executed hand letter on the letterhead of defendant No.1 on its
behalf and affixed stamp of the firm. The said amount was
borrowed in the presence of Boggavarapu Narasimha Rao and
Tirumalasetti Nagasatyanarayana and they signed as attestors.
Defendant No.2 represented that he would repay the amount
within a short period. Since the amount was not repaid, the
plaintiff demanded for repayment of the amount, but none of the
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defendants had paid the amount. Apart from the suit debt,
defendant No.1 represented by another partner, defendant No.3
borrowed several amounts from the plaintiff under the
letterhead of defendant No.1. Hence, suit was filed for recovery
of amount.
5. Defendant Nos.1 and 3 remained ex parte and the claim
against defendant Nos.4 and 5 was given up by the plaintiff.
6. Defendant No.2 filed written statement and contended
inter alia that hand letter, dated 25.02.1992 is not valid and not
enforceable in the Court of law as it is inadequately stamped;
that defendant No.2 is no way concerned with defendant No.1
firm and the suit is bad for non-joinder of parties; that
defendant No.2 got acquaintance with the plaintiff; that on
25.02.1992, the plaintiff approached defendant No.2 and
requested him to execute nominal promissory note for his
personal purpose for which defendant No.2 did not accept; that
the plaintiff later brought one letterhead of M/s. Sri Annapurna
Fertilizers and one rubber stamp of the firm and requested
defendant No.2 to execute promissory note on the paper without
stamp so that the same will not bind him in future; that since
the document neither binds him nor enforceable, to
accommodate the plaintiff he executed the document; that no
consideration was paid; that no attestors were present at the
time of execution of the said document; that on receiving
summons, defendant No.2 came to know that the plaintiff
deceived defendant No.2 and made use of the document for
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unlawful gain; that no demand was made by the plaintiff at any
point of time and prayed the Court to dismiss the suit.
7. Defendant No.5 filed written statement and the same was
adopted by defendant No.4. In the written statement of
defendant No.5, it was inter alia contended that defendant No.2
is no way concerned with defendant No.1 firm and he is not
partner of the said firm; that defendant No.3 is Managing
Partner and defendant Nos. 4 to 6 are partners of defendant
No.1 firm; that the receipt issued by defendant No.2 on behalf of
defendant No.1 does not bind defendant No.1 firm and its
partners; that defendant No.3, who is Managing Partner of
defendant No.1 is close friend of the plaintiff; that disputes
arose between the Managing Partner and other partners of the
firm due to which defendant No.3 created the alleged hand letter
in collusion with defendant No.2; that the plaintiff did not issue
any notice prior to the filing of the suit and prayed the Court to
dismiss the suit.
8. Basing on the above pleadings, the lower Court framed the
issues and additional issues:
1. Whether the plaintiff is entitled for the suit amount as
prayed for?
2. Whether the 2nd defendant executed the suit pronote
without consideration and out of friendship with the
plaintiff at the request of the latter?
3. To what relief?
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Additional issues, dated 04.08.2000:
1. Whether the fourth and fifth defendants are liable to
discharge the suit amount as prayed for?
2. To what relief?
Additional issues, dated 01.12.2000:
1. Whether the second defendant is a party to the 1st
defendant firm?
2. Whether the second defendant borrowed the suit amount
on behalf of 1st defendant firm?
3. Whether the plaintiff is entitled to ask any relief against
the 1st defendant firm?
4. To what relief?
9. During the course of trial, plaintiff examined himself as
PW1 besides examining PW2, one of the attestors and got
marked Ex.A1. On behalf of the defendants, defendant No.2
examined himself as DW1 and also got examined DW2.
However, no documents were marked.
10. The lower Court, on consideration of oral and
documentary evidence decreed the suit with costs against
defendant No.2 only. The suit against defendant Nos.1, 3 and 6
is dismissed. Aggrieved by the said judgment and decree, the
above appeal is filed.
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11. Heard Sri P. Prabhakar Rao, learned counsel for the
appellant/defendant No.2 and Sri Ambadipudi Satyanaryana,
learned counsel for respondent No.1/plaintiff.
12. Learned counsel for the appellant/D2 would contend that Ex.A1 letter is not valid and un-enforceable since it requires stamp duty and no consideration was passed under Ex.A1. He also would contend that the pleadings of the plaintiff are contrary to the evidence on record and hence the lower Court ought not to have decreed the suit against defendant No.2 contrary to the pleadings. He would further contend that the entire case of the plaintiff is that defendant No.2 being the Managing Partner of the defendant No.1 firm borrowed the amount. In fact he asserted the same in his pleadings and evidence. Hence passing decree against defendant No.2 alone is not correct, since it was proved that defendant No.2 is not partner of the said firm.
13. Learned counsel for appellant/D2 relied upon Allam Gangadhara Rao v. Gollapalli Gangarao1 and Bachhaj Nahar v. Nilima Mandal and another2.
14. Learned counsel for the 1st respondent/plaintiff would contend that the trial Court rightly decreed the suit against defendant No.2 being the borrower of the amount and he supported the judgment of the trial Court. He relied upon Devji @ Devji Shivji vs. Maganlal R. Athrana & Others3. 1 AIR 1968 AP 291 2 2008 (17) SCC 491 3 AIR 1965 SC 139 6
15. In the light of the contentions raised on either side, the following points arise for consideration:
1. Whether Ex.A1, letter is legally enforceable and basing on the said letter, the suit is maintainable for recovery of amount?
2. Whether the appellant/defendant No.2 is partner of defendant No.1 firm?
3. Whether appellant/defendant No.2 borrowed the amount on behalf of defendant No.1 firm?
4. Whether the judgment and decree under appeal are to be interfered with?
5. To what relief?
Point Nos.1 to 4 Since point Nos.1 to 4 are interrelated they are dealt with together.
16. Ex.A1 letter was scribed by defendant No.2 in his own handwriting on 25.02.1992. A perusal of Ex.A1 reveals that defendant No.2 scribed the said letter and the recitals therein are to the said effect that, he borrowed an amount of Rs.1,00,000/- on 25.02.1992 and agreed to pay interest at 24% per annum. The same was attested by two witnesses. Defendant No.2 scribed the same on the letterhead of M/s. Sri Annapurna Fertilizers. During the trial, Ex.A1/letter was impounded by collecting stamp duty and penalty. Hence, the contention of 7 defendant No.2 that Ex.A1 could not have been marked without proper stamp duty is not correct, since appropriate stamp duty was already collected with penalty by impounding the same during the course of trial.
17. The trial Court treated Ex.A1 as letter and accordingly the same was impounded as stated supra. The recitals of Ex.A1 also make it clear that it is only a letter but not promissory note. Apart from examining himself as PW1, the plaintiff also got examined one of the attestors as PW2 to prove execution of the document. A perusal of the Ex.A1 manifests that it is only a letter executed by 2nd defendant at the time of borrowing the amount from the plaintiff. Since it was impounded by paying stamp duty and penalty it is enforceable and hence the contention of the learned counsel qua the admissibility of Ex A- 1 is negatived.
18. Whether defendant No.2 is partner of defendant No.1 firm and whether he borrowed the amount in his individual capacity or as partner of the firm will be considered infra.
19. In the plaint it was pleaded that defendant No.1 represented by defendant No.2 borrowed a sum of Rs.1,00,000/- and having received the consideration, defendant No.2 executed a letter on behalf of defendant No.1 firm on its letterhead and affixed stamp of the firm in the presence of the attestors. It was further averred that defendant No.2 represented that he would repay the amount within a short period and failed to repay the same.
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20. Plaintiff examined himself as PW1. The chief-affidavit of the plaintiff is nothing but replica of the plaint. He further deposed in chief-examination that the plaintiff is having business friendship with defendant No.2 and there were previous transactions between them. During the course of cross-examination, he deposed that defendant No.2 is one of the partners of defendant No.1 firm. He further deposed that letter, Ex.A1 discloses that defendant No.3 is the Managing Partner of defendant No.1 firm and he denied the suggestion that defendant No.2 is not partner of defendant No.1 firm. He further deposed that all the defendants are close friends and he got acquaintance with them for the last twenty years. When a suggestion was put to PW1 with regard to non-payment of consideration under Ex.A1, he denied the same and also denied the suggestion that the suit was filed in collusion with defendant No.3 in view of the disputes between defendant No.3 on one side and other partners of defendant No.1 firm on the other side. He also deposed that he does not know whether defendant No.2 borrowed the amount for his personal purpose or on behalf of the firm and that defendant No.1 firm is a busy shop with customers.
21. Against the said pleadings and evidence defendant No.2 examined him as DW1. Defendant No.2, in his written statement contended that he is not partner of defendant No.1 firm and that he executed Ex.A1 on the request made by the plaintiff and no consideration was passed. According to defendant No.2 plaintiff never demanded to repay the amount. In the cross-examination, 9 he admitted that he did fertilizers business for some time under the name and style of M/s. Annapurna Agro Agencies, Nandigama. Ex.A1 was scribed on the letterhead of M/s. Sri Annapurna Fertilizers, Nandigama, whereas he is Managing Partner of M/s. Annapurna Agro Agencies. He further admitted in his cross-examination that defendant No.1 firm was in the same premises where M/s. Annapurna Agro Agencies is located. He also admitted that in the said M/s. Annapurna Agro Agencies, apart from himself, one Mandadapu Venkateswarlu, Chava Mangamma and Ganta Janaki Rammaiah were partners and Chava Mangamma is wife and Ganta Janaki is father-in-law of defendant No.3 in the present suit. Defendant No.4 in the present suit is his brother and defendant No.5 is wife of defendant No.4. He also admitted that his father is a partner of M/s. Sri Annapurana Fertilizers.
22. M/s. Annapurna Agro Agencies and M/s. Sri Annapurna Fertilizers are located in the same premises and the partners in both the firms are closely related. The plea of plaintiff that defendant No.2 borrowed the amount representing himself as partner of defendant No.1 firm, in the absence of any positive proof that defendant No.2 is partner of defendant No.1, may not absolve the liability of defendant No.2 from discharging the debt. In other words, merely because defendant No.2 is not partner of defendant No.1, plaintiff will not be non-suited on that ground alone, still defendant No.2 is personally liable to discharge the debt. As stated supra the name of defendant No.1 is M/s. Sri Annapurna Fertilizers and defendant No.2 is Managing Partner 10 in M/s. Annapurna Agro Agencies. Both the firms are located in the same premises by carrying same kind of business. In view of the similar names and carrying on similar type of business, defendant No.2 might have represented before the plaintiff that he is borrowing amount on behalf of defendant No.1 firm posing himself as partner of defendant No.1. Of course it was pleaded by defendant Nos.4 and 5 as also by defendant No.2 that defendant No.2 is nothing to with defendant No.1 firm.
23. Defendant No.2 admitted execution of Ex.A1. In fact defendant No.2 himself scribed Ex.A1. When defendant No.2 himself scribed Ex.A1, he has to explain under what circumstances, he executed Ex.A1. Appellant/Defendant No.2 tried to explain in his written statement that the plaintiff approached him with a request to execute a nominal promissory note and out of friendship to accommodate the plaintiff, he executed Ex.A1. He further stated in his written statement that the document does not bind him and it is unenforceable against him.
24. It is pertinent to mention here that Defendant No.2 is not innocent or gullible person. He knows the consequences of execution of Ex.A1 in view of his rich experience in court litigation. According to him, being Managing Partner of M/s. Annapurna Agro Agencies, he filed nearly 120 suits in Nandigama Munsif Courts and Vijayawada Sub-Courts. Hence, he is aware of the implications of Ex.A1. He also deposed in his cross-examination that he gave evidence in all the suits and 11 concerned execution petitions on behalf of M/s. Annapurna Agro Agencies. He also admitted that he got Court knowledge. He further admitted that in the suits filed by him on behalf of M/s. Annapurna Agro Agencies, Chava Suryaprakash, defendant No.3 used to scribe batta memos, petitions, execution petitions, etc., if necessary. He also further admitted that said defendant No.3 used to collect E.P. amounts and he used to look after execution of warrants for the firm. This apart the evidence of DW2, makes the thing more than discernable that defendant No.2 is conscious of the implications in executing Ex.A1. Having been executed Ex.A1 on a letterhead of M/s. Sri Annapurna Fertilizers, in which firm he is not partner, is trying to take advantage. A person who filed nearly 120 suits and having court experience in a normal course may not execute such letter like Ex A1 unless he borrows amount. The contentions of defendant No.2 that he has not borrowed the amount and in fact the plaintiff brought paper and rubber stamp are unbelievable. As noticed, both the firms are run in the same premises and partners in both the firms are closely related. Thus, on a careful consideration of evidence on record, this Court comes to the conclusion that appellant/2nd defendant, though not partner of defendant No.1 firm executed letter on the letterhead of defendant No.1 firm at the time of borrowing of amount.
25. Since defendant No.2 is not partner in defendant No.1 firm, defendant No.1 firm is not liable to pay the amount under Ex.A1. Defendant No.2 having borrowed the amount in his individual capacity is liable to pay the amount. Though 12 defendant No.2 examined DW2, one of the attestors of Ex.A1, his evidence does not inspire confidence of this Court.
26. On a careful evaluation of pleadings and evidence, it seems, appellant/2nd defendant is trying to take advantage of his own wrong which is impressible. It is settled principle of law, that no person shall take advantage of his own. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. To put it differently, "a wrong doer ought not to be permitted to make a profit out of his own wrong
27. In Mrutunjay Pani and Anr. Vs. Narmade Bala Sasmal and Anr.4, it was held that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin Maxim 'Commodum ex injuria sua nemo habere debet' (No party can take undue advantage of his own wrong).
28. In Ashok Kapil Vs. Sana Ullah5, it was held as under:
"7. .... The maxim "Nulls commode copier potest de injuries sua propriety" (No one can take advantage of his own wrong) is one of the salient tenets of equity.
Hence, in the normal course, appellant/D2 cannot secure the assistance of a court of law for enjoying the fruit of his own wrong.
4 1962 (1) SCR 290 5 1996 (6) SCC 342 13
29. The other contention raised by learned counsel for defendant No.2 that the pleading of the plaintiff is consistent that defendant No.2 borrowed amount on behalf of defendant No.1 firm and hence, if the plaintiff failed to prove that defendant No.2 is partner of defendant No.1 firm, the suit is liable to be dismissed. In support of his contention, he relied upon Allam Gangadhara Rao v. Gollapalli Gangarao.
30. It is settled principle of law that a party can succeed according to what is alleged and proved and no relief can be granted on the facts and documents not disclosed in the plaint. The suit based on one cause of action cannot be decreed on another cause of action. A party can only succeed according to what was alleged and proved secundum allegate et probate.
31. Though it was pleaded in the plaint that defendant No.2 borrowed the amount on behalf of defendant No.1, as explained supra, the names of both the firms are almost similar and both the firms are located in the same premises. Defendant No.2 cannot take advantage of his own wrong and on that ground the plaintiff would not be non-suited. The suit is one filed for recovery of amount on the strength of Ex.A1 scribed by defendant No.2. Since it was proved that appellant/D2 borrowed the amount and scribed Ex.A1, he is personally liable to pay amount. The evidence on record probablizes that defendant No.2 borrowed the amount in individual capacity, but not on behalf of defendant No.1 firm. In fact, appellant/D2 is not partner of 1st defendant firm. Therefore, other defendants 14 are not liable to pay the amount. The decisions relied upon by learned counsel for appellant/defendant No.2 will not apply to the facts of the present case. Thus, the appeal is liable to be dismissed.
Point No.5:
32. In view of the above discussion, the judgment and decree of the trial Court do not call for interference of this Court and hence, the appeal is liable to be dismissed.
33. In the result, the appeal is dismissed with costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_______________________________ JUSTICE SUBBA REDDY SATTI Date : 30.04.2022 IKN 15 HON'BLE SRI JUSTICE SUBBA REDDY SATTI APPEAL SUIT No.2159 of 2001 30.04.2022 IKN