Andhra Pradesh High Court - Amravati
P.V.Subba Naidup.Venkata ... vs Pamidi Subbaiah on 5 October, 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
A.S.No.804 of 2013
ORDER:
This appeal is filed by the defendants against the judgment and
decree passed by the Senior Civil Judge, Kavali, dated 26.04.2013, in
O.S.No.3 of 2009, decreeing the said suit. The parties are referred as per
their array in the suit.
2. The respondent/plaintiff had filed the above suit. It is the
case of the respondent that the defendants 1 to 3 had jointly borrowed a
sum of Rs.6,00,000/- from the plaintiff on 04.11.2007 at the house of the
plaintiff in Nellore and had executed a pro-note in favour of the plaintiff
agreeing to repay the said amount of Rs.6,00,000/- with interest at the
rate of Rs.2/- per hundred per month, on a compounded basis. As the
said amount was not being paid despite repeated demands, a legal notice
was issued on behalf of the plaintiff on 19.07.2008. This legal notice, sent
by registered post, was returned by both 1st and 2nd defendants and it is
the case of the plaintiff that this was managed by the 1st defendant. In
any event, the plaintiff filed the above suit for recovery of the amounts
payable on the ground that the pro-note amount was not paid despite
demands being made.
3. The 1st defendant filed a written statement, which was
adopted by the 3rd defendant. The case of the defendants was that
defendants 1 and 3 had done business as partners and the plaintiff had
worked under them in the said business. For the purpose of their
business, they used to take money from their financiers and return the
money, as and when defendants could repay. In the course of these
transactions, the plaintiff used to take the signed pro-notes, including
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blank signed pro-notes of the defendants to the financiers and recover the
same upon payment being made by them to the financiers. It is
contended that the plaintiff, taking advantage of this situation, had
retained some unfilled pro-notes and had utilised the said pro-notes by
filling up the blank pro-note containing the signatures of the defendants
to make a false claim. It is further contended that the plaintiff did not
have the wherewithal to advance a sum of Rs.6,00,000/- and as such the
suit requires to be dismissed.
4. In the course of trial, the plaintiff examined himself as PW.1;
the scribe of the pro-note as PW.2; and a witness to the transaction as
PW.3 and marked Exs.A.1 to A.12. The defendants examined themselves
as DWs.1 and 2 and marked Exs.B.1 to B.12.
5. The pro-note was marked as Ex.A.1. The trial Court, after
completion of the trial and after considering the submissions made on
both sides, had relied on the judgments of this Court and the Hon'ble High
Court of Madras, in Subba Rao v. Sikhakollu Pulla Rao1; Mohamed
Ali v. Abdul Sinab2; and Konda Ramga Reddy v. Galiveedu Raja
Reddy3 on the issue of burden of proof and shifting of burden of proof,
and decreed the suit with costs for a sum of Rs.7,74,900/- with
subsequent interest at the rate of 12% per annum from the date of the
suit till the date of realisation of the principal amount of Rs.6,00,000/-.
6. Aggrieved by the said judgment and decree, the defendants
therein had filed the present appeal. It appears that the 1 st defendant had
1999 (3) ALT 144
AIR 2001 MAD 216
2011 (1) ALT 50
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passed away during the pendency of the appeal and his legal
representatives were impleaded as appellants 4 to 6.
7. The 1st and 3rd defendants admit their signatures on the pro-
note. However, their defence is essentially on two grounds. Firstly, on the
ground that the pro-note was obtained by the plaintiff by misusing his
possession of trust with the defendants, and secondly, the pro-note is not
supported by any consideration and in any event the plaintiff did not have
the wherewithal to advance a sum of Rs.6,00,000/-. The defendants had
also taken a subsidiary plea that the wife of the plaintiff had filed a similar
suit, which would go to show that the plaintiff was misusing the various
pro-notes, which were in his possession.
8. The settled principle of law in a suit for recovery of money,
on the strength of a pro-note, is that the initial burden of proof lies on the
plaintiff to demonstrate that the defendant(s) had executed such a pro-
note. Once that initial burden of proof is discharged, the burden shifts on
to the defendant(s) to demonstrate that such an event did not take place
or that the said pro-note is not supported by any consideration.
9. In the present case, the defendants 1 and 3 in their written
statements admit that the pro-note produced by the plaintiff contains their
signatures. This admission discharges the initial burden of proof cast on
the plaintiff. The defendants seek to discharge their burden of proof by
stating that the respondent/plaintiff advanced the said sum of money to
them and in any event did not have the ability or wherewithal to advance
such sums of money.
10. In the course of cross-examination, the respondent/plaintiff
stated that he was the owner of a proclainer and that he had advanced
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the sum of Rs.6,00,000/- out of the proceeds of sale of that proclainer.
Further, PWs.2 and 3 stated that the said sum of Rs.6,00,000/- had been
given in the form of cash by the plaintiff to the 1st and 3rd defendants at
the house of the plaintiff on 04.11.2007 and that PW.2 had scribed the
pro-note, which was signed by the 1st and 3rd defendants at that time.
The evidence of PWs.2 and 3 was not shaken during the cross-
examination and nothing has been placed before the trial Court to doubt
the veracity of the depositions of these two witnesses. It must still be
noted that an admission was obtained from both the witnesses that the
respondent/plaintiff had not advanced the loan to the 3rd defendant.
However, this admission may not be relevant as the case set out by the
plaintiff is that the money was taken by the 1st and 3rd defendants for the
benefit of the 2nd defendant. Further, the plaintiff had also produced
Ex.A.6, which shows that immoveable property had been purchased in the
name of the 2nd defendant on 07.11.2007, which is three days after the
loan was taken by defendants 1 and 3 on 04.11.2007. This would clearly
demonstrate that the version of the plaintiff is believable and the burden
cast on the 1st and 3rd defendants had not been discharged by them.
11. Apart from the judgments cited by the trial Court on the
issue of burden of proof and shifting of burden of proof, Smt.
Nimmagadda Revathi, learned counsel appearing for the
respondent/plaintiff, relied upon a judgment of the Hon'ble Supreme Court
in Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm &
Ors.,4, which lays down the principle of law set out above.
(2008) 7 SCC 655
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15. In these circumstances, there are no grounds to interfere
with the findings of the trial Court. Accordingly, the Appeal is dismissed.
There shall be no order as to costs. As a sequel, pending miscellaneous
petitions, if any, shall stand closed.
_________________________
R. RAGHUNANDAN RAO, J.
05th October, 2021
Js.
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A.S.No.804 of 2003
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
A.S.No.804 of 2003
05th October, 2021
Js.
