Bayana Atchuta Rao, vs Tadikonda Pawan Kumar,
2022 Latest Caselaw 5212 AP

      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                 APPEAL SUIT No.207 of 2011

JUDGMENT:

Defendant in O.S.No.1134 of 2006 on the file of I

Additional Senior Civil Judge, Vijayawada filed the above appeal

under Section 96 of the Code of Civil Procedure, 1908.

2. For the sake of convenience, parties to this appeal are

referred to as they were arrayed in suit.

3. Plaintiff filed the suit O.S.No.1134 of 2006 against the

defendant for recovery of amount on the strength of promissory

note dated 15.11.2003.

4. In the plaint, it was contended inter alia that on

15.11.2003 defendant borrowed an amount of Rs.2,50,000/-

from the plaintiff for his business purpose and executed a

promissory note on the even date. Defendant promised to pay

the interest @24% p.a. with yearly rests. Since the date of

execution of promissory note, defendant did not pay the amount

and despite demanded by the plaintiff, defendant is postponing

the repayment. On 07.11.2006, plaintiff got issued a registered

notice through his counsel. Defendant got the notice returned

and failed to repay the amount. Hence, suit is filed for recovery

of an amount of Rs.4,29,700/-.

5. Defendant filed written statement and contended inter alia

that he did not borrow the amount on 15.11.2003; that there is

no privity of contract between the plaintiff and defendant as

creditor and debtor; that defendant did not receive any notice

from the plaintiff; that the attestors and scribe are henchmen of

plaintiff; that defendant did fruit juice stall business in shop

No.26, Kaleswara Rao Market, Vijayawada during February,

1996 to August, 1996 and wind up the business; that later he

did sweets shop business in the same shop during the year

1996 to 2000; that the plaintiff worked as clerk in the shop of

defendant on a monthly salary of Rs.3,000/-; that defendant

also wind up the said business, since he sustained loss; that the

plaintiff requested the defendant to give the shop on lease at

Rs.175/- per day and paid Rs.25,000/- as advance for the shop;

that the defendant accepted for the proposal and handed over

the shop to plaintiff along with furniture and stock; that

Vijayawada Municipal Corporation seized the shop on

16.07.2002 on the ground that lessee sublet the premises to the

plaintiff unauthorizedly; that with great difficulty defendant got

orders from the Municipal Corporation to open the shop and he

settled the lease amount with plaintiff and handed over the

shop; that the suit promissory note is fabricated one; that the

plaintiff has no capacity to lend Rs.2,50,000/- and eventually

prayed to dismiss the suit.

6. Basing on the pleadings, the trial Court framed the

following issues:

(1) Whether the suit promissory note dated 15.11.2003 is true, valid and binding on the defendant?

(2) Whether the plaintiff is entitled for recovery of suit amount as prayed for?

(3) To what relief?

7. During trial, plaintiff examined himself as P.W.1, got

examined one of attestors as P.W.2 and scribe as P.W3. Exs.A-1

to A-3 were marked. On behalf of defendant, he examined

himself as D.W.1 and got examined D.Ws.2 and 3. Exs.B-1 to

B-3 were marked.

8. The trial Court on consideration of both oral and

documentary evidence, decreed the suit with costs by judgment

and decree dated 14.06.2010. Aggrieved by the same, the above

appeal was filed.

9. Heard Ms.Sailaja, learned counsel, representing Sri

V.S.R.Anjaneyulu, learned counsel for appellant and Sri

S.Sharat Babu, learned counsel for the respondent.

10. Learned counsel for the appellant would contend that

Ex.A-1 is fabricated document and the plaintiff failed to prove

passing of consideration under Ex.A-1. She would further

contend that there are number of discrepancies in the evidence

of P.Ws.2 and 3 and in fact, P.W.2 and P.W.3 are close

associates of P.W.1. She would submit that I.A.No.503 of 2009

filed on 19.08.2009 under Section 45 of the Indian Evidence Act

was kept pending for some time and later it was dismissed. She

further submits that the opinion of the handwriting expert is not

a conclusive proof and eventually prayed to allow the appeal.

11. Learned counsel for respondent supported the judgment

of the trial Court.

12. Basing on the pleadings and evidence, the following points

arise for consideration in this appeal:

1) Whether the suit promissory note dated 15.11.2003 is true, valid and binding on the defendant?

2) Whether the plaintiff proved the passing of consideration under Ex.A-1?

3) To what relief?

13. Since the points 1 and 2 are inter-connected, this Court

deems it appropriate to deal with the same together.

14. Pleaded case of the plaintiff is that defendant borrowed an

amount of Rs.2,50,000/- on 15.11.2003 and agreed to pay the

same with interest @ 24% p.a. with yearly rests. Since the

defendant failed to repay the amount, he got issued registered

notice dated 7.11.2006 and the same was marked as Ex.A-2,

however, the same was returned. Hence, the plaintiff filed the

suit.

15. Defendant filed written statement and pleaded multifold

defenses. According to defendant, Ex.A-1 is forged document,

plaintiff had no capacity to lend the amount and attestors and

scribe are henchmen of the plaintiff.

16. To prove the execution of Ex.A-1, plaintiff examined

himself as P.W.1 and got examined one of the attestors as P.W.2

and scribe as P.W.3. Promissory note is not a compulsorily

attestable document. Plaintiff apart from examining himself as

P.W.1 also examined P.Ws.2 and 3 attestor and scribe. The

evidence of P.Ws.1 to 3 is consistent with regard to execution of

Ex.A-1 and also passing of consideration. A perusal of cross

examination of P.W.1 to P.W.3, nothing contra was elicited.

17. Defendant having pleaded forgery, filed I.A.No.40 of 2008

under Section 45 of the Indian Evidence Act to send the

promissory note to handwriting expert to compare signature. On

examination, the expert sent his report and opined that

signature appearing on Ex.A-1 and admitted signatures of

defendant are one and the same. Report was filed before the

Court, however, defendant did not examine the expert.

Curiously, defendant filed one more application I.A.No.503 of

2009 to send Ex.A-1 to handwriting expert and the same was

dismissed on 02.06.2010. Though the opinion of the hand

writing expert is not conclusive proof, evidence of P.Ws.1 is clear

and cogent regarding execution of Ex A-1 and passing of

consideration. Evidence of P.W.2 and P.W.3 is corroborating

with evidence of P.W.1 regarding execution of Ex.A-1 and

passing of consideration. Apart from evidence of P.W.1 to P.W.3

handwriting expert also opined that the signature on Ex A-1

belonged to defendant. Thus this court is of the opinion that Ex

A-1 promissory note is true and valid and consideration is

passed under Ex A-1.

18. According to defendant, because of disputes plaintiff

fabricated Ex A-1. However, he deposed when the promissory

note is executed and the dispute regarding lease of shop was

settled. In view of the evidence of D.W.1, when there are no

disputes between the plaintiff and defendant and further there

is no positive evidence let in by defendant to prove that Ex.A-1

is fabricated this Court is of the opinion that Ex.A-1 is not

fabricate one. Exs.B-1 to B-3 issued by the Vijayawada

Municipal Corporation, will not benefit the case of defendant.

19. In the light of the above discussion, there are no merits in

the appeal and hence, the appeal is liable to be dismissed.

20. Accordingly, the appeal suit is dismissed with costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

17th August, 2022

PVD