THE HON'BLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.1612 of 2004
JUDGMENT:
This appeal is filed aggrieved by the judgment of the Appellate Court in A.S.No.24 of 2002 dated 19.01.2004, in which the judgment passed by the trial Court in O.S.No.300 of 1999, dated 28.02.2002, was confirmed.
2. O.S.No.300 of 1999 was filed by the plaintiff/Y.Suryanarayana against the defendants/
Abbaiah and Sulochana, wife of Abbaiah for recovery of amount. Plaintiff stated that himself and defendants are well acquainted with each other and out of the said acquaintance, defendants approached him and requested for hand loan of Rs.22,000/- and accordingly he advanced the loan on 29.05.1997. After receiving the amount, defendants jointly executed promissory note in favour of the plaintiff on the same day and they have also promised to repay the amount with interest @ 24% per annum, but failed to repay the same. In-spite of several demands they were postponing the payment till 14.05.1999 and finally they refused to repay the amount. As such, he filed the SA.No1612of 2004 2 suit for recovery of the amount of Rs.32,560/- with interest at the rate of 24% per annum.
3. In the written statement filed by Defendant No.1 and 2, they have admitted acquaintance with the plaintiff but denied the other factors. They stated that they never borrowed any amount and never executed any promissory note in favour of the plaintiff. As such, there is no occasion for plaintiff to demand the amount on 14.05.1999. They also stated that plaintiff is a Government servant, he is running Sri Tirumala Sai Finance and he has lent amount to defendant No.1 on two occasions prior to 29.05.1997 and he has repaid the entire amount on 28.05.1998 and after that date defendant No.1 is not due of any amount to the plaintiff. Plaintiff also lent amount to one Boring Anjaiah of Mallaram village and several other persons, as he is doing money lending business without having license. Plaintiff used to write on chits and give it to the parties and he never used to pass any receipts for payments, but he used to account on small chits and took the amount without passing any receipt recording the payment. Defendant No.1 did not SA.No1612of 2004 3 borrow any amount after 28.12.1996 from the plaintiff and he has repaid the said amount on 25.05.1998 and on that day plaintiff gave a slip in token of Rs.27,260/-. In the promissory note, the signatures of Defendant No.1 and 2 did not appear and it is a forged and scribed by the plaintiff to set up a false claim. They sent it for hand writing expert for comparison of the signature of Defendant No.1 and thumb impression of Defendant No.2 and it is not a promissory note as it is not properly stamped, as such it cannot be looked into.
4. Plaintiff examined himself as PW1 and got marked Ex.A1. Defendant No.1 examined himself as DW1 and his wife was examined as DW2 and got marked Ex.B1. Ex.A1 is the promissory note on Rs.100/- Non Judicial Stamp. Ex.B1 is the acknowledgement slip dated 28.12.1997 for Rs.27,260/- in the hand writing of plaintiff.
5. A Perusal of Ex.A1/promissory note shows that Defendant Nos.1 and 2 borrowed Rs.22,000/- on 29.5.1997 from the plaintiff with interest at the rate of 24% per annum and it was signed by 1st defendant and thumb impression of the 2nd defendant was affixed on it.
SA.No1612of 2004 4 Initially an objection was taken regarding validity of the promissory note. An Interlocutory Application was also filed to send Ex.A1 to the Revenue Divisional Officer for impounding it with necessary stamp duty penalty. After hearing both the parties, the trial Court held that Ex.A1 was scribed on Rs.100/- Non-Judicial stamp paper, as such it does not require any stamp duty penalty and is valid as it was not challenged, it attained finality. As such, now this Court need not go into the details of the validity of the promissory note. Ex.B1 is the acknowledgement slip dated 28.12.1997 for Rs.27,260/- in the hand writing of plaintiff and there are two dates on Ex.B1 i.e. 28.12.1997 on the top and in the bottom it was mentioned as 28.05.1998. The signature of the plaintiff was there and the amount of Rs.27,260/- was also mentioned clearly and the name of Abbanna Mallaram was mentioned on Ex.B1. Plaintiff stated that he gave calculation of the amount to be paid by the defendant as the defendant stated that he would pay the amount on 28.05.1998.
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6. The main contention of the appellant herein is that the appellate Court while answering the third point, it was mentioned as follows:
As per evidence of defendants, D1 borrowed for Rs.20,000/- (Rupees Twenty thousand only) on 28-12-96 and repaid that amount with interest on 28-5-1998 under Ex.B1. Ex.B1 is a slip which is as follows:
28-12-1997 Abbanna
27,260/- Mallaram
(Twenty Seven thousands two hundred and sixty rupees only) Dt.28-5-1998 Sd/-
Surya Kanth.
Surya Kanth is plaintiff, Abbanna is the D1.
He argued that when defendant No.1 specifically admitted that he repaid the amount, it gives a presumption that he has taken the amount from the plaintiff, but the trial Court and appellate Court observed that plaintiff has not examined the scribe or attestor of the promissory note and he failed to prove his promissory note and as such, he is not entitled for recovery of suit claim from the defendants and dismissed the suit.
7. Heard arguments of both sides. Perused the evidence on record.
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8. Plaintiff stated that defendants borrowed an amount of Rs.22,000/- on 29.5.1997 and jointly executed a demand promissory note on stamp paper worth Rs.100/- agreeing to pay the same with interest at the rate of 24% per annum and when he demanded to pay Rs.32,560/- with interest, they refused to pay the same and as such he filed the suit for recovery of amount. He further stated prior to this transaction he has also advanced loan on two occasions to the defendants with a gap of one year to those two loans. Prior to this transaction he also lent an amount of Rs.22,000/- and odd to the defendants. He admitted his writing and signature on Ex.B1. He further explained that on Ex.B1, the date of document was mentioned as 28.12.1997 and date of payment of amount as 28.5.1998. He further admitted that the English writing on Ex.A1 as LTI of Sulochana was written by him. During the pendency of proceedings, Ex.A1 was sent to the hand writing expert by duly taking signatures and thumb impressions of D1 and D2, but the expert could not give his opinion, as the said signature and thumb impressions are not clear for comparison. When the defendants clearly stated that Ex.A1 is a forged document, the burden shifts SA.No1612of 2004 7 upon them and it is for them to prove that the document is a forged one. Atleast, they might have taken further steps by sending the document to the expert again, but they failed to do so.
9. Defendants in the written statement stated that previously defendant No.1 has taken loan amount from the plaintiff twice, but he has not taken loan from the plaintiff after 28.12.1996. He further stated that he repaid the amount taken by him prior to 28.12.1996. There is no dispute regarding the averments between plaintiff and defendants and it is also an admitted fact that defendant No.1 borrowed hand loan from the plaintiff previously on two occasions. When it is the case of the defendant No.1 that he has repaid the entire amount, and he failed to prove that A1 is a forged document, plaintiff is entitled for presumption under Section 118 of the Negotiable Instruments Act. Initially, defendant No.1 stated that he never obtained any loan and later stated that he has obtained hand loan from the plaintiff twice on previous occasions and repaid the said amount, but he has disputed Ex.A1. The case of the plaintiff is that the SA.No1612of 2004 8 defendants have taken a hand loan of Rs.22,000/- on 29.05.1997 with interest at the rate of 24% per annum. The appellate Court calculated the interest for the said period and stated that the amount claimed by the plaintiff is nearer to the calculation. The trial Court erred in arriving to the conclusion that plaintiff failed to prove the promissory note and could not appreciate Ex.B1 acknowledgement slip and dismissed the suit. The Appellate Court without appreciating the facts properly confirmed the judgment of trial Court.
Respondents/defendants did not turn up on 8.8.2023 and also on 11.8.2023, as such it is treated that there are no arguments on their behalf.
10. Considering the arguments of the appellant counsel and the documents filed by him and also the admission of the defendants, this Court finds that it is just and reasonable to set aside the judgment of the Appellate Court and to allow the second appeal.
11. In the result, Second Appeal is allowed by setting aside the judgment of the First Appellate Court passed in A.S.No.24 of 2002 dated 19.1.2004 as well as the SA.No1612of 2004 9 judgment of the trial Court passed in O.S.No.300 of 1999 dated 28.02.2002. Plaintiff is entitled for recovery of Rs.32,560/- with interest at the rate of 12% per annum from the date of filing the suit till the date of the decree and 6% per annum from the date of decree till the date of realization. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA Date: 19.09.2023 BV