Korada Prameela Devi vs Baratam Tyagaraju Died
2021 Latest Caselaw 5500 AP

  THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

                         S.A.No.609 OF 2021

JUDGMENT:-

      Heard Sri Tarlada Rajasekhar Rao, learned counsel for the

appellant.


      2. This second appeal is presented by the defendant in O.S.No.353

of 2015 on the file of the Court of learned Principal Senior Civil Judge,

Srikakulam for recovery of Rs.10,20,800/- on the foot of promissory note

dated 18.10.2012.


      3. It is the contention of the respondents that the appellant has

borrowed Rs.6,00,000/- (Rupees Six Lakhs Only) under the suit

promissory note agreeing to repay, in favour of the 1st and 2nd

respondents on 18.10.2012 with interest at 24 % per annum, who failed

to pay the amount due inspite of demands.

4. The substantial defence of the appellant is one of the denial of

execution of the suit promissory note contending that the 1st and 2nd

respondents are the close relations of her husband who retired as Joint

Director of Agriculture in the year, 2010. She further contended that her

husband was taking care of their family needs and that there was no need

for her to borrow such huge amount. Further defence is that the suit

promissory note is not supported by consideration.

5. The trial Court on the pleadings settled the following issues:-

i. Whether the suit promissory note dated 18.10.2012 is true, correct and duly executed by the defendant in favour of the plaintiffs ?

ii. Whether the suit promissory note is supported by consideration ?

iii. Whether the plaintiffs are entitled for the suit amount ?

iv. To what relief ?

6. The parties went to trial. The 2nd respondent examined himself

as PW1 and one of the attestors to the suit promissory note as PW2, while

relying on Ex A1 suit promissory note in support of their contention. P.W.3

scribe of the suit promissory note was examined at the trial, his evidence

was eschewed.

7. The appellant examined herself as DW1 and DW2 is her husband

who also happened to be another attestor to the suit promissory note. No

documents were produced at trial on behalf of the appellant.

8. Basing on the material and the evidence, the trial Court agreed

with the contention of respondent Nos.1 and 2 rejecting the defence of

the appellant and ultimately the suit was decreed as prayed.

9. In the appeal in A.S.No.42 of 2019 on the file of the learned

Principal District Judge, Srikakulam the appellant was not successful

resulting in dismissal. The appellate Court agreed with the findings

recorded by the trial Court and confirmed the decree so passed.

10. These are the circumstances under which the present second

appeal is filed.

11. Considering the nature of this matter which is purely based on

facts finding no substantial questions of law as such, this second appeal is

being disposed of at this stage. At the same time one question to consider

is rate of interest claimed by the respondent Nos.1 and 2 in the

transaction @ 24% per annum and its effect ex-facie, to treat it as

usurious requiring to scale down the interest.

12. Ex A1 is the suit promissory note relied on by the respondent

Nos.1 and 2 at the trial to prove the suit transaction. Apart from its

intrinsic worth, there is oral evidence of the 2nd respondent as PW1 and

one of the attestors to it as PW2. Both of them deposed in terms of this

transaction and supporting it. No material was brought out through these

witnesses in cross-examination at the trial to discredit their testimony.

Both the Courts relied on their evidence and accepted in proof of Ex A1

transaction.

13. Learned counsel for the appellant contended that PW2 is a

relation of PW1 and hence, he is interested in him. In this context, the

nature of defence set up by the appellant in the written statement shall

not be lost sight of, where she specifically stated that 1st and 2nd

respondents are also their relations through her husband. In this

backdrop, the relationship among the parties or with reference to PW2

cannot have any significant effect.

14. Another interesting feature to consider in this matter is that the

husband of the appellant herself stood as another attestor to Ex A1. The

stand of the appellant throughout the trial was that, her husband was

attending to all her affairs. In such an event his appearance as an attestor

to Ex A2 itself lends certain amount of credibility to the contention of the

1st and 2nd respondents. Further, he did not specifically deny his signature

as an attestor in Ex A1 promissory note.

15. In this context, the role of attestors with reference to a

transaction reduced to writing needs consideration. The parties to such

transaction will invite the attestors in whom they repose confidence and to

vouch the transaction. Viewed from such perspective when undisputedly

DW2 figured himself out as an attestor to Ex A1, the inference drawn on

true nature of Ex A1 transaction above is fortified. This circumstance

alone is sufficient to reject the defence of the appellant.

16. An application in I.A.No.394 of 2018 in O.S.No.353 of 2015

under section 45 of the Indian Evidence Act to forward the suit promissory

note to hand writing expert for his examination was filed in the trial Court.

The judgment of the appellate Court recorded that the above petition was

dismissed on 04.10.2018 on the ground that the contemporaneous

signatures were not made available for the purpose of comparison of the

signature appearing in Ex A1 promissory note. As rightly contended by the

learned counsel for the appellant, trial Court overlooked this fact and

observed as if, no such an attempt was made by the appellant.

17. This situation was corrected by the learned appellate Judge

after referring to the material on record.

18. The trial Court as well as the appellate Court relied on section

73 of the Indian Evidence Act and the trial Court undertook comparison of

signatures appearing on the suit promissory note with the signatures

appearing in the written statement. When earlier application was

dismissed for want of contemporaneous signatures of the appellant, it is

rather strange that the trial Court relied on the signatures of the appellant

in the written statement and to hold that the signatures on Ex A1 as well

as written statements are similar. This view was also supported by the

learned appellate Judge.

19. Nonetheless this factor of comparison of signatures resorted by

the trial Court cannot amount to a substantial question of law for this

Court now to decide. Added to it, it was a hazardous course resorted to by

the trial Court and there is no material as such to show the proficiency of

the trial judge in the science relating to examination and comparison of

hand writings.

20. For the reason recorded above, relating to credibility to attach

to Ex A1 transaction being true and valid when both the Courts below

concurrently held so, this Court cannot re-determine the matter on the

substantial questions sought to be raised on behalf of the appellant.

21. However, one disturbing feature to be noted in this case is

claim of interest @ 24 % per annum by the 1st and 2nd respondents from

the date of the transaction namely, 18.10.2012 till date of filing the suit.

22. As seen from the averments in the plaint, this transaction is

not a commercial transaction and the amount was borrowed under Ex A1

for family needs, to purchase immovable properties by the appellant. In

such circumstance claiming interest @ 24 % per annum is

unconscionable and ex facie usurious. In these circumstances, the Court is

entitled to interfere with the transaction reopening it in terms of section 3

of the Usurious Loans Act and scale down the interest so claimed by the

1st and 2nd respondents. Want of such defence from the appellant is not a

factor to inhibit the court, to consider this aspect.

23. Having regard to the facts and circumstances if rate of interest

is reduced to 12 % from the date of the transaction i.e., 18.10.2012 it

shall be in the interests of justice.

24. In the above circumstances, while modifying the decree of the

trial Court as confirmed by the appellate Court the second appeal is

disposed of at the stage of admission, subject to following terms:-

(a). The respondents are entitled for interest @ 12% per annum

on Rs.6,00,000/- from 18.10.2012 to till 08.11.2018.

(b). That the respondents are entitled for interest @ 12 % per

annum on the adjudged sum as per above clause (a) till 08.11.2018.

(c). The respondents are further entitled for interest @ 6% per

annum on the adjudged sum as per clause (a) from the date of decree

namely 09.11.2018 of the trial Court till realization against the appellant.

(d). In other respects, the decree and judgment of trial Court, as

confirmed by the appellate Court, stand confirmed.

(e). A decree be drawn accordingly. No costs.

Miscellaneous applications pending, if any, in this case stand

closed.

_________________________________ JUSTICE M. VENKATA RAMANA Date : 27.12.2021

Note:

Issue CC in two days.

B/o. EPS

THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

S.A.No.609 OF 2021

Dated :27.12.2021

EPS