THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.135 of 2022
JUDGMENT:
Defendant in the suit filed the above second appeal aggrieved by the judgment and decree dated 18.11.2021 in A.S.No.56 of 2019 on the file of III Additional District Judge, Kurnool at Nandyal, confirming the judgment and decree dated 04.06.2019 in O.S.No.440 of 2017 on the file of Principal Junior Civil Judge, Nandyal.
2. For the sake of convenience and brevity, parties to this judgment are referred to as per their array in suit.
3. Plaintiff filed the suit O.S.No.440 of 2017 for recovery of an amount Rs.2,73,000/-, principal being Rs.2,25,000/- from the defendant on the strength of promissory note dated 20.10.2016.
4. The averments of the plaint, in brief, are that that defendant borrowed an amount of Rs.2,25,000/- on 20.10.2016 for his family and business necessities and executed a promissory note agreeing to repay the same with interest @ 24% per annum. In spite of demands made by 2 plaintiff, defendant failed to repay the same. Plaintiff got issued legal notice dated 12.06.2017. Having received legal notice, however defendant did not give any reply. Hence, the suit was filed.
5. Defendant filed written statement and admitted about borrowing of Rs.2,25,000/-. He further pleaded that he used to pay the amount regularly to the plaintiff and for that purpose, he maintained book, which contained signatures of plaintiff. He also made some part payments by depositing amount in the bank account of plaintiff and he paid total amount of Rs.62,000/- out of the amount borrowed and thus, prayed to dismiss the suit.
6. Basing on the above pleadings, the trial Court framed the following issues:
(1) Whether the defendant made a part payment of Rs.62,000/- to the plaintiff towards the suit promissory note debt?
(2) Whether the defendant made payments towards the suit debt as pleaded?
(3) Whether the plaintiff is entitled for the entire suit claim?
(4) To what relief?3
7. During the trial, plaintiff examined himself as P.W.1 and got marked Exs.A-1 to A-3. On behalf of defendant, he examined himself as D.W.1 and got marked Ex.B-1.
8. Trial Court on consideration of both oral and documentary evidence, decreed the suit with costs by judgment and decree dated 04.06.2019. Aggrieved by the same, defendant filed appeal A.S.No.56 of 2019 on the file of III Additional District Judge, Kurnool at Adoni. Lower appellate Court being the final fact finding Court, after framing necessary points for consideration and on consideration of oral and documentary evidence, dismissed the appeal vide judgment and decree dated 18.11.2021. Assailing the same, the present second appeal is filed.
9. Heard Sri T.C.Krishnan, learned counsel for the appellant/defendant.
10. Learned counsel for appellant would submit that the appellant paid an amount of Rs.62,000/- and in proof of the same, he filed Ex.B-1. However the Courts below failed to take note of the same. He also would submit that P.W.1 in his cross examination admitted about defendant sending 4 amount to his account, but the same was not properly considered by the Courts below.
11. A perusal of the pleadings and evidence on record, undisputed facts are that defendant borrowed an amount of Rs.2,25,000/- from the plaintiff in 20.10.2016 and executed Ex.A-1 promissory note. When defendant failed to repay the same, plaintiff issued Ex.A-2 legal notice dated 12.06.2017.
12. Defendant admitted about execution of suit promissory note Ex.A-1. Once the defendant admitted execution of suit promissory note, presumption under Section 118 (a) of the Negotiable Instruments Act, 1881 attracts arise. The said presumption is rebuttable and the defendant had to prove that he paid Rs.62,000/- towards part payment in connection with Ex.A-1.
13. The defendant is a retired bank manager. He admitted that he is having acquaintance with the plaintiff for the last 25 years. He also admitted that he never mentioned the dates of part payments made by him towards suit promissory note to the plaintiff. Though it was pleaded by the defendant that he paid Rs.62,000/-, he failed to link up the said part 5 payments towards discharge of debt under Ex.A-1. He also failed to examine the maternal uncle of plaintiff to prove that part payments were made by him as per his instructions.
14. In Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal1, the Hon'ble Apex Court was held thus:
"Once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any 1 (1999) 3 SCC 35 6 defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
15. In G.Venkata Rama Subbaiah Vs. D.Rasool Naik2, the composite High Court of Andhra Pradesh held thus:
"Once the execution of the promissory note is admitted or proved, then it is presumed to be supported by consideration unless contrary is proved. The burden is on the defendant to rebut the same by adducing convincing evidence. Unless the defendant rebuts the presumption by adducing convincing rebuttal evidence, the evidential burden would not shift back to the plaintiff who has legal burden only after adducing such convincing rebuttal evidence, it can be held that thereafter the presumption under Section 118 does not come to the rescue of the plaintiff."
16. Trial Court on appreciation of evidence on record, decreed the suit. Lower appellate Court, being the final fact finding Court also considered the evidence on record and dismissed the appeal. It is pertinent to mention here that in Ex.B-1 note book, it was mentioned that an amount of Rs.2,25,000/- was borrowed on 30.10.2016, whereas suit promissory note is dated 20.10.2016. If any part payment is 2 2003 (4) ALT 414 7 made in the natural course, payment endorsements will be scribed on the backside of the promissory note by giving date and details of amount paid. The endorsements will be signed by executant. D.W.1, a former bank manager, relied upon the entries in Ex.B-1. In the opinion of this Court, Ex B-1 is self- serving document without any authentication and hence it cannot be relied upon. In the absence of Ex B-1, in view of the admission made by D.W.1, no amount was paid towards the debt and hence the findings recorded by Court do not call for any interference from this Court.
17. Regarding scope of Section 100 CPC, the Hon'ble Apex Court in Hero Vinoth Vs. Seshammal3, held that:
"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being 3 AIR 2009 SC 1481 8 contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-
(i) ...
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."
18. The Hon'ble Apex Court in Randhir Kaur Vs. Prithvi Pal Singh and Ors.4, held thus:
"16. ....A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only 4 (2019) 17 SCC 71 9 where there is an error in law or procedure and not merely an error on a question of fact."
19. The findings of the facts recorded by the Courts below are based on appreciation of both oral and documentary evidence. Unless, the appellant demonstrates that substantial question of law involved in the second appeal, interference of this Court in exercise of jurisdiction under Section 100 of CPC is not warranted. In this case on hand, as observed supra, no questions of law much less substantial questions of law arose in the appeal. Hence, the second appeal is liable to be dismissed, however, without costs.
20. Accordingly, the second appeal is dismissed at admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 14th October, 2022 PVD