Telangana High Court
Edla Venkatrajam vs Dr. Pothula Yellesh on 19 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.50 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree, dated 21.11.2023, passed in A.S.No.76 of 2021 on the file of the Court of Principal District Judge, Hanumakonda, whereunder and whereby the judgment and decree, dated 28.11.2019, passed by the I Additional Senior Civil Judge, Warangal, in O.S.No.423 of 2013, was confirmed.
2. The appellants are the defendants and the respondent is the plaintiff in the suit. For convenience, hereinafter the parties are referred to as they are arrayed before the trial Court.
3. The facts of the case in brief, which led to filing of the present Second Appeal, are that the plaintiff filed the above said suit for recovery of money alleging that due to acquaintance with him, the defendants, on 04.07.2010, borrowed a sum of Rs.3,00,000/- for their family necessities and they executed joint promissory note agreeing to repay the said amount together with interest at 1 % per month in favour of the plaintiff. But, in spite of repeated demands and legal notice, the defendants did not repay the 2 LNA, J S.A.No.50 of 2024 said due amount and did not even respond to the said legal notice. Hence, the suit.
4. The defendants filed a common written statement inter alia contending that the suit promissory note is a fabricated one. The defendants did not sign on the postal acknowledgment cards pertaining to the said legal notice. They never had such necessity to borrow such huge amount and there is no consideration for the alleged promissory note. The alleged General Power of Attorney Holder of the plaintiff i.e., Pothula Nuthan never had such locus standi to represent the plaintiff and lend the money on the alleged date of the promissory note and prayed to dismiss the suit with costs.
5. On the basis of the above pleadings, the trial court framed the following issues for trial:-
"(1) Whether the promissory note dated 04.07.2010 is true, valid and binding on the defendants?
(2) Whether the suit promissory note is not supported by consideration?
(3) Whether the plaintiff is entitled to the suit amount? (4) To what relief?3
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6. On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-7 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined, but no documentary evidence was adduced.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, vide judgment dated 28.11.2019, observed that the evidence of D.Ws.1 to 3 goes to show that that defendants evaded to repay the suit amount and accordingly, decreed the suit.
8. On an appeal being filed, the first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record and observed that the plaintiff filed Ex.A-7-GPA given to his son i.e., P.W-1 and therefore, P.W-1 had authority to represent the plaintiff and to proceed with the case. It further observed that the defendants borrowed the amount mentioned in Ex.A-1-promissory note from the plaintiff and failed to repay the same and accordingly, dismissed the appeal vide judgment dated 21.11.2023.
9. Heard Sri S.Lakshmikanth, learned counsel for the appellants and Sri Pasham Ravinder Reddy, learned counsel 4 LNA, J S.A.No.50 of 2024 representing Sri N.Narayana, learned counsel on record for the respondent. Perused the record.
10. Learned counsel for the appellants relied upon the decisions of the Madurai Bench of Madras High Court in A.Thirumoorthy & another Vs. S.Bastin 1, this Court's judgment in CRP.No.4339 of 2018, dated 18.02.2021, the decision of the Hon'ble Apex Court in Mohinder Kaur Vs. Sant Paul Singh 2 and the decision of the erstwhile High Court of Andhra Pradesh in Katta Nageswara Rao and another Vs. Reddi Saraswath 3.
11. In A.Thirumoorhty's case (1st cited supra), there is a clear interpolation and insertion of the number '4' in the year '2004' and also corresponding alteration in the year in vernacular language.
12. In the present case, the only contention raised by the defendants is that they are illiterate and they have no habit of putting dates under signature. Therefore, the signatures on Ex.A-1 do not belong to the appellants herein. Thus, there is no alteration or interpolation or insertion of any word or letter in the suit 1 2014 SCC Online Mad 10785 2 (2019) 9 SCC 358 3 (1992) 1 APLJ 60 (HC) 5 LNA, J S.A.No.50 of 2024 promissory note. Furthermore, admittedly, the defendants have not taken any steps for sending Ex.A-1 to Handwriting expert. Therefore, the aforesaid judgment is not applicable to the facts of the present case.
13. The facts of the case on hand are entirely different from the facts of the case in Mohinder Kaur's case (2nd cited supra), hence, the said judgment does not aid the appellants in any manner.
14. Further, there is no quarrel with regard to the ratio laid down in Katta Nageswara Rao's case (3rd cited supra). It is apposite to note that the first Appellate Court has framed four points for consideration and answered the same duly considering the evidence on record. Therefore, it is to be held that in the instant case the first Appellate Court has scrupulously followed the ratio laid down in Katta Nageswara Rao's case.
15. In the present case, GPA was given by the plaintiff to his son-P.W-1. P.W-1 was present at the time of execution of the suit promissory note and thus, he has personal knowledge about the suit transaction. Therefore, P.W-1 is competent to give evidence. 6
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16. The facts of the case in the order dated 18.02.2021 passed by this Court in Civil Revision Petition No.4339 of 2018 are distinct to the present case. Therefore, the said order is not applicable to the present case.
17. Having thoroughly gone through the aforesaid judgments of various courts, this Court finds that the facts and circumstances of the said decisions are entirely different with the facts and circumstances of the case on hand. Therefore, the said decisions are not applicable to the present case and no way helpful to the appellants.
18. The trial Court in its judgment dated 28.11.2019 observed as under:-
"The defendants did not take any steps regarding forgery of promissory note and hence, adverse inference was raised against the evidence of D.W.1. D.W.2 admitted his signatures on Ex.A-5 and Ex.A-6 and he did not inform to his parents about the said notice and hence, it shows that the plaintiff issued legal notice and it was received by son of the defendants and as the defendants did not issue reply notice it shows that they were intending to evade repayment of suit amount."7
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19. The first Appellate Court in the impugned judgment observed as under:-
"The defendants did not take any steps for sending Ex.A-1 to handwriting expert for comparison and opinion whether the pronote was signed by defendants and whether the date 04.07.2010 was put by them or not."
19.1. The first Appellate Court further observed as under:-
"In view of the consistent evidence of PWs.1 and 2 and Ex A-1, the borrowing of amount by the defendants from the plaintiffs is established clearly. This court observed the admitted signatures of defendants in written statement and vakalathnama and the signatures on Ex.A-1 which were disputed by the defendants and this court did not find any circumstance to say that the signatures of Ex A-1 do not belong to defendants.
20. Thus, a perusal of the record discloses that both the trial Court and the lower Appellate Court concurrently held that the evidence on record clearly establishes that the defendants borrowed the amount from the plaintiff, executed Ex.A-1-promissory note, dated 04.07.2010, and failed to repay the same.
21. Learned counsel for appellant vehemently argued that the trial Court decreed the suit without proper appreciation of the 8 LNA, J S.A.No.50 of 2024 evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
22. However, learned counsel for appellant failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
23. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
24. Further, in Gurdev Kaur v. Kaki 4, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
4 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.50 of 2024
25. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
26. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
27. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY 19.02.2024 dr