Andhra Pradesh High Court - Amravati

Chodisetti Srinivasa Rao vs Vasantha Rao Murali Krishna on 18 August, 2022

         HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                  SECOND APPEAL No.341 of 2022

JUDGMENT:-

      The defendants in O.S.No.214 of 2017 filed the present

appeal against the judgment, dated 28.12.2021 passed in

A.S.No.6 of 2019 on the file of learned Senior Civil Judge,

Avanigadda,       confirming   the   judgment   and   decree,   dated

22.07.2019 passed in O.S.No.214 of 2017 on the file of learned

Principal Junior Civil Judge, Avanigadda.


2.     The parties to the appeal shall be referred to as they are

arrayed in O.S.No.214 of 2017.


3.    Plaintiff filed O.S.No.214 of 2017 against the defendants

for recovery of an amount of Rs.1,90,250/-, principal being

Rs.1,50,000/-.


4.    The case of the plaintiff, in brief, is that defendants, who

are wife and husband borrowed an amount of Rs.1,50,000/-

from the plaintiff on 25.06.2015 promising to repay the amount

with interest at the rate of 12% per annum; that the defendants

failed to repay the amount and hence, plaintiff got issued legal

notice, dated 03.08.2017 and the same was received by the

defendants on 04.08.2017, but no reply was sent. Hence, the

suit was filed.


5.    Defendants filed written statement and contended inter

alia that defendant No.1 borrowed an amount of Rs.1,50,000/-
                                 2



on 25.06.2015 agreeing to repay the interest at Rs.1,500/- per

day; that on the date of lending the amount, plaintiff deducted

an amount of Rs.30,000/- towards interest and handed over

only Rs.1,20,000/-; that defendant No.1 executed promissory

note mentioning the amount as Rs.1,50,000/- and interest as

12% per annum; that at the time of borrowing the amount, none

was present except plaintiff, defendant No.1 and scribe of the

pro-note;    that   defendant   No.1   paid   total   amount   of

Rs.1,14,000/- towards principal and interest and plaintiff also

made endorsement and defendant No.1 fell due of Rs.36,000/-;

that defendant No.1 in fact repaid the remaining amount of

Rs.36,000/- to the plaintiff in the month of October, 2015, but

plaintiff did not return promissory note; that after receipt of

notice, defendants approached elders and the elders called

plaintiff; that plaintiff promised before elders that he will not

proceed further, however plaintiff proceeded with the suit; that

defendant No.2 never approached the plaintiff and she never

borrowed an amount of Rs.1,50,000/- along with defendant

No.1; that defendant No.2 did not execute promissory note and

the signature on promissory note does not belong to defendant

No.2. Hence, prayed the Court to dismiss the suit.


6.     Basing on the above pleadings, the lower Court framed the

following issues:


     1.

Whether suit promissory note, dated 25.06.2015 is true,

valid and binding on the defendants or not?

2. Whether 1st defendant borrowed an amount of

Rs.1,50,000/- from the plaintiff and the same was paid by

him as he pleaded or not?

3. Whether plaintiff is entitled for suit claim as prayed for or

not?

4. To what relief?

7. During the trial, plaintiff examined himself as PW1 and

got examined one of the attestors and scribe of the promissory

note as PW 2 and 3. Exs.A1 to A4 were marked. On behalf of the

defendants, defendant No.1 examined himself as DW1 and got

marked Exs.B1 and B2.

8. The trial Court on consideration of both oral and

documentary evidence, decreed the suit for Rs.1,90,250/- with

interest at 12% per annum from the date of filing the suit till the

date of the decree on the principal amount and 6% per annum

thereafter till realization. Aggrieved by the same, defendants

filed A.S.No.6 of 2019 on the file of learned Senior Civil Judge,

Avanigadda.

9. The lower Appellate Court on consideration of both oral

and documentary evidence, dismissed the appeal by judgment

and decree, dated 28.12.2021. Aggrieved by the same the above

second appeal.

10. Heard Sri G. Uday Bhaskar, learned counsel for the

appellants/defendants.

11. Learned counsel for the appellants would submit that the

Courts below failed to consider Exs.B1 and B2 and, also the

discrepancies in the evidence of PWs1 to 3.

12. Learned counsel for the appellants/defendants raised the

following substantial questions of law for consideration:

1. Whether the judgments of the Courts below are vitiated in

ignoring to consider that no consideration was passed

under Ex.A1?

2. Whether the judgments of the Courts below are vitiated in

not properly appreciating the evidence of PWs1 to 3.

13. In Kulwant Kaur and Ors vs. Gurdial Singh Mann (Dead)

By Lrs. and Ors.1 the Hon'ble Apex Court held as follows:

"Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of

1 (2001) 4 SCC 262

perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity."

14. The Hon'ble Apex Court in Yadavarao Dajiba Shrawane

Vs. Nanilal Harakchand Shah (Dead) and Ors.2 held thus:

"From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on mis- interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades the records are voluminous. The High Court as it appears from the judgment has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance."

15. In the light of the law laid down by the Hon'ble Apex Court

on the scope of interference by the High Court in second appeal,

2002 (6) SCC 404

this Court while exercising jurisdiction under Section 100 of

CPC must confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Court below where

the Courts below have exercised the discretion judicially.

Further the existence of substantial question of law is the sine

qua non for the exercise of jurisdiction. This Court cannot

substantiate its own opinion unless the findings of the Court are

perverse and contrary to the evidence on record.

16. In the case, as per the plaint, defendants who are

husband and wife borrowed an amount of Rs.1,50,000/- on

25.06.2015 and executed promissory note on the same day.

Since they failed to repay the amount, legal notice, dated

03.08.2017 was issued and later he filed the suit.

17. Defendants pleaded that defendant No.1 borrowed an

amount of Rs.1,50,000/- on 25.06.2015, but at the time of

lending amount, plaintiff deducted Rs.30,000/- towards interest

and handed over only Rs.1,20,000/-. The defendants further

pleaded that defendant No.1 executed promissory note showing

the principal amount as Rs.1,50,000/- and higher rate of

interest. It was further pleaded that at the time of borrowing the

amount and execution of promissory note, no one was present

except plaintiff and scribe. The defendants further pleaded that

defendant No.1 repaid Rs.46,500/- in thirty-four instalments

and the total amount paid by the defendants is Rs.1,14,000/-.

Defendants also further pleaded about the payment of

remaining amount of Rs.36,000/- in the month of October

2015. The defendants further pleaded that plaintiff did not

return promissory note and after receipt of the legal notice, the

matter was placed before elders and plaintiffs promised that he

would not proceed with the matter.

18. To prove execution of promissory note plaintiff examined

himself as PW1 and examined one of the attestors as PW2 and

scribe as PW3. The evidence of plaintiff and his witness is

consistent regarding execution of promissory note by the

defendants and receiving of amount.

19. The defence of the defendants is that defendant No.1 alone

executed promissory note and he repaid the amount. In fact, as

per the written statement, the defendants pleaded forgery of

signature of defendant No.2. However, no steps were taken by

the defendants to send the documents to expert. They further

pleaded discharge of amount. Since defendants also pleaded

discharge burden lies on the defendants to prove discharge of

amount. Defendant No.1 examined himself as DW1 and Exs.B1

and B2 are marked. Ex.B1 is original small book, dated

06.08.2015 and Ex.B2 is original small book, dated 25.06.2015.

Admissions of DW1 are extracted hereunder:

"As per my written statement, signature on Ex.A1 belongs to my wife. It is true Exs.B1 and B2 do not disclose that plaintiff issued books in my favour. It is

true Exs.B1 and B2 do not disclose that he received the amount as per entries in those books. It is true that I have shown Ex.B1 and B2 to my counsel at the time of preparing written statement."

I have not shown in my written statement or in chief that I have paid amounts as shown in Exs.B1 and B2 entries. I have not filed any case against plaintiff so also my wife has not filed any case against the plaintiff after filing of the suit alleging that plaintiff forged her signature on Ex.A1.

20. In view of the above cross examination of DW1 extracted

supra, Exs.B1 and B2 would not help the case of defendants.

Since defendant No.1 admitted execution Ex.A1, the

presumption under Section 118 of the Negotiable Instruments

Act, 1881 (for short 'N.I. Act') attracts. To rebut the presumption

of Section 118 of N.I. Act, defendant must adduce acceptable

evidence. Though the presumption is rebuttal,

appellants/defendants did not lead any evidence in that regard.

21. Both the Courts recorded concurrent findings of fact

regarding execution of promissory note, receiving of the amount

and failure of the defendants in discharging amount. The finds

are based on appreciation of evidence on record. Unless, the