Pokala Parvathamma vs K Saraswathi
2021 Latest Caselaw 2287 AP

         THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

                   SECOND APPEAL No.285 of 2021

JUDGMENT:

Heard Sri CH.Venkat Raman, learned counsel for the

appellant.

2. Having regard to the nature of this matter, since the second

appeal is preferred against the consistent and concurrent findings

recorded by both the Courts below, finding no reason to invoke

jurisdiction under Section 100 C.P.C, this second appeal is being

disposed of now.

3. The respondent as the plaintiff, instituted a suit in

O.S.No.309 of 2012 on the strength of a promissory note dated

27.08.2009, for recovery of Rs.1,66,666/- together with interest

and costs, against the appellant.

4. The case of the respondent at the trial was that the

appellant borrowed Rs.1,00,000/- from her on 27.08.2009 for

family necessities, agreeing to repay the same with interest @24%

p.a and executed the suit promissory note therefor. It was further

case of the respondent that in spite of repeated demands and

issuance of legal notices dated 12.11.2011 and 18.05.2012, since no

amount was paid by the appellant, who got issued a false reply, she

was constrained to lay the suit.

5. The defence of the appellant in substance as seen from the

written statement was one denial of execution of the suit

promissory note. Another defence was that the respondent was

running chit business illegally and in the transactions, in relation

thereto in between these parties, taking the advantage of her

signatures obtained on empty printed promissory note forms

towards security, the respondent brought out the suit promissory

note. Reference is also made to an enquiry conducted against the

husband of the plaintiff in the same context leading to suffering

punishment.

6. The trial Court settled two issues basing on the pleadings and

in relation thereto, the parties went to trial.

7. The respondent examined herself as PW.1 and one of the

attestors to the suit promissory note as PW.2, while relying on

Exs.A1 to A6. The appellant examined herself as DW.1 and relied

on Exs.B1 and B2 to support her version.

8. Upon the material and evidence, learned trial Judge rejected

the defence of the appellant and accepting the version of the

respondent, finding the transaction under Ex.A1-suit promissory

note being true and valid, further holding that it is supported by

consideration, decreed the suit as prayed.

9. A.S.No.118 of 2015 presented by the appellant was

dismissed, upon reappraisal of material and evidence, by learned V

Additional District Judge, Chittoor at Tirupati by the decree and

judgment dated 23.07.2020.

10. Against this decree and judgment of the appellate Court, the

present second appeal is preferred.

11. Sri Ch.Venkat Raman, learned counsel for the appellant,

strenuously contended that both the Courts below did not take into

consideration the evidence on record and misdirected themselves in

appreciation of the evidence. Learned counsel further contended

that there are admissions clearly pointing out that back drop in

relation to Ex.A1 transaction particularly supporting the defence of

the appellant that there were chit transactions in between these

parties. Thus, contending that the nature of appreciation of

evidence by both the Courts below had lead to miscarriage of

justice, learned counsel requests to reconsider this matter,

admitting the second appeal.

12. In this backdrop, now the question to consider and determine

is, whether this Court is required to consider the claim of the

appellant on the ground that there are substantial questions of law

in terms of Section 100 CPC?

13. The suit claim is based on Ex.A1-suit promissory note dated

27.08.2009, where under, according to the respondent, the

appellant had borrowed Rs.1,00,000/- for meeting family

necessities agreeing to repay with interest at 24% p.a. The burden

is on the respondent to establish this fact particularly in the light of

the defence of the appellant of denial of execution of this

promissory note.

14. Apart from her evidence as PW.1, the respondent examined

PW.2, the first attestor to Ex.A1-suit promissory note.

15. Learned trial Judge, considered the testimony of both these

witnesses and found nothing to discredit their credibility nor to

impeach in any manner. Thus, veracity of the deposition of both

these witnesses was accepted.

16. Learned trial Judge, took into consideration the statements

of the respondent as PW.1 elicited in cross examination. With

reference to the intimacy between her husband and PW.2 being

colleagues, it was not considered being a factor by the learned trial

Judge to support the defence. Learned trial Judge observed that it

was a natural course of action and reaction on account of PW.2

being colleague of husband of PW.1. The record further reveals

that the appellant is not a stranger to the respondent and there

were earlier transactions relating to borrowing money between the

appellant and the respondent in sums of Rs.3,000/- or Rs.4,000/- as

hand loans, without there being any proof by means of documents.

17. Thus, consistent evidence was let in, in proof of Ex.A1-suit

promissory note transaction.

18. The appellant as DW.1 deposed in terms of her defence set

out in the written statement. Clear admissions of the appellant as

DW.1 were considered by the learned trial Judge in cross

examination to the effect that the Ex.A1-suit promissory note is no

way concerned to the husband of the respondent and so also the

chit transactions. These admissions were treated by the learned

trial Judge as substantive evidence. It was further observed that

these admissions clearly nullify the defence of the appellant and

that they were not stray admissions.

19. Exchange of notices in Exs.A2 and A3 was also considered by

the learned trial Judge and also the fact that steps were not taken

to submit Ex.A1-suit promissory note for opinion of a handwriting

expert. Even otherwise, when there is substantive evidence from

Pws.1 and 2 along with the intrinsic worth of Ex.A1-suit promissory

note itself regarding which there was a demand of Ex.A2-legal

notice prior to institution of the suit, even if there had been any

opinion of the handwriting expert, it would not have any bearing.

20. The evidence on record was reappreciated by the learned

appellate Judge on right lines particularly attaching any amount of

weight to the admissions of both parties, particularly of the

appellant as DW.1. Observing that there is sufficient proof of

Ex.A1-suit promissory note let in by the respondent, as was

considered by the learned trial Judge and having regard to the

nature of the testimony of the appellant as DW.1, the appellate

Judge concurred with the observations and findings of the trial

Court.

21. Learned appellate Judge further observed that except

interested testimony of the appellant as DW.1, there is no other

material adduced to show the circumstances under which Ex.A1 was

executed by the appellant. Holding that Exs.B1 and B2 are noway

helpful to the appellant to prove her case and having regard to the

consistent version of PWs.1 and 2 that mutually corroborated

supporting the claim of the respondent, learned appellate Judge

did not find favour with the version of the appellant. Thus,

ultimately, confirming the findings recorded by the learned trial

Judge, the appeal was dismissed.

22. In this background, when the contentions of the learned

counsel for the appellant are considered, they do not in any manner

make out that there is reason or a case for this Court to consider

this matter once again on the very same questions of fact. When

concurrent findings so consistently given by both the Courts below

are on record, sitting in second appeal, this Court shall be slow in

interfering with the same. Particularly, when the 1st appellate

Judge considered the matter in proper perspective, the fact

situation, the findings recorded thereon are binding on this Court,

when considering the matter under Section 100 CPC.

23. Thus, this Court is satisfied that there are no substantial

questions of law requiring consideration of this matter in this

second appeal invoking Section 100 CPC. In consequence, this

second appeal has to be dismissed at the admission stage.

24. In the result, the Second Appeal is dismissed at the admission

stage, confirming the decrees and judgments of both the Courts

below. No costs.

25. Interim orders granted earlier if any, stand vacated.

26. Miscellaneous petitions pending if any, stand closed.

_____________________ M.VENKATA RAMANA, J Date: 07.07.2021 Pab