L. Sarada vs N. Seshanna Died
2022 Latest Caselaw 1541 AP

         HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                 APPEAL SUIT No.2518 of 2001

JUDGMENT:-

       The appeal is filed by the plaintiff against the decree and

judgment, dated 15.02.2001 passed in O.S.No.145 of 1996 on

the file of learned Principal Senior Civil Judge, Kurnool.


2.     For the sake of convenience and brevity, the parties shall

be referred to as they are arrayed in the O.S.No.145 of 1996.


3.     The plaintiff initially filed O.S.No.145 of 1996 against the

sole   defendant   initially   for   recovery   of   an    amount    of

Rs.1,37,600/-, principal being Rs.80,000/-. Pending the suit,

the sole defendant died and his legal representatives were

brought on record as defendant Nos.2 to 6.


4.     The case of the plaintiff is that on 28.12.1993, defendant

No.1 borrowed Rs.80,000/- for his family necessities promising

to repay the same with interest at 24% per annum. It was

further pleaded that inspite of repeated oral demands by the

plaintiff and her husband, defendant No.1 failed to repay the

amount and hence, suit was filed.


5.     Defendant   No.1,   during his     life time,      filed written

statement and denied the borrowal of amount and execution of

alleged promissory note, dated 28.12.1993. He contended inter

alia that plaintiff is his younger sister; that she filed O.S.No.55

of 1996 on the file of learned District Munsif Court, Alampur

against the defendant, his two elder brothers and their father for
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permanent injunction basing on the alleged gift deeds said to

have been executed by Edanna (father); that father Edanna

revoked three gift deeds; that O.S.No.55 of 1996 was dismissed

on 09.12.1996; that plaintiff with the help of her husband, G.

Venkata Swamy, Ex-Municipal Councillor and others, fabricated

the promissory note; that plaintiff examined herself as PW1 in

O.S.No.55 of 1996, but did not depose about borrowal of the

suit amount of Rs.80,000/- on 28.12.1993; that the signature of

defendant is forged and no notice was issued prior to filing of

the suit and hence prayed the Court to dismiss the suit.


6.    On behalf of the plaintiff, she examined herself as PW1

besides examining one of the attestor's of promissory note, as

PW2 and got marked Ex.A1. On behalf of the defendants,

defendant No.2, wife of defendant No.1 was examined herself as

DW1 besides examining Senior Assistant of State Housing

Corporation as DW2. Exs.B1 to B3 and Exs.X1 to X10 were

marked.


7.    The   trial   Court,   after    consideration   of   oral    and

documentary     evidence,    by   decree   and     judgment,      dated

15.02.2001 dismissed the suit without costs. Aggrieved by the

same, this appeal is preferred by the plaintiff.


8.    Heard Sri K.V. Raghuveer, learned counsel for the

appellant/plaintiff and Sri C.S.K.V. Ramana Murthy, learned

counsel for the respondents/defendants.

9. Learned counsel for the plaintiff would contend that the

judgment of the trial Court is contrary to law. The trial Court

did not consider the evidence of PW2, one of the attestors' of

Ex.A1. He would contend that the trial Court ought not to have

come to the conclusion that defendant No.1 might not have

signed Ex.A1 pronote in Telugu basing on Exs.X1 to X10 since

the office record contains his signature in English. He also

further contended that the Court below could not have

compared the signatures available on Ex.A1 with Exs.X1 to X10.

Eventually he prays to allow the appeal by setting aside the

judgment of the trial Court.

10. Learned counsel for the defendants supported the

judgment of the trial Court.

11. Basing on the above contentions, the following points arise

for consideration:

1. Whether Ex.A1, promissory note, dated 28.12.1993 is true, valid and binding on the defendants?

2. Whether the signature appearing on promissory note, Ex.A1 belongs to defendant No.1?

3. To what relief?

12. The pleaded case of the plaintiff is that, defendant No.1,

her brother borrowed an amount of Rs.80,000/- on 28.12.1993

and executed Ex.A1, promissory note. Plaintiff also pleaded that

interest agreed between the parties is 24% per annum.

13. Defendant No.1, during his life time filed written

statement and denied execution of promissory note, borrowal of

amount and further pleaded forgery. He also pleaded that the

plaintiff filed O.S.No.55 of 1996 against himself, his two

brothers and father basing on gift deeds executed by their

father. The said suit was dismissed. He pleaded that since

defendant No.1 is educated man and is working as an employee,

the plaintiff with the assistance of her husband, who is an

employee in Municipal Corporation and attestors, created the

promissory note.

14. The evidence of PW1 manifests that defendant No.1 is

working as Work Inspector in Housing Corporation. She further

deposed in her cross-examination that her brother used to sign

in Telugu. However, plaintiff/P.W.1 notwithstanding the denial

of the signature by the defendant No.1, failed to take steps to

prove that defendant No.1 signed Ex.A1 in Telugu. She further

deposed that there are no talking terms between the parties.

15. Normally, whenever a person borrows amount and failed to

repay the amount as agreed, the lender demands the borrower

to repay the amount. In case if the borrower failed to repay the

amount lender would cause legal notice demanding the amount

apart from oral demands. In the case on hand plaintiff deposed

that she demanded orally. She further deposed that there are no

taking terms between herself and defendant No.1. This part of

the evidence of PW1 itself probablizes that since the plaintiff

could not succeed in suit O.S.No.55 of 1996, Ex.A1/promissory

note was created. The other circumstance is that at the time of

filing the suit, defendant No.1 is residing at Kummari street,

Kurnool, however in the cause title, the address of defendant

No.1 was shown as if he is residing in his native place. She

further deposed that she do not know how defendant No.1 died

and she was told that defendant No.1 was murdered by

somebody. This circumstance make things more than

discernible that in view of the disputes between the plaintiff and

defendant No.1, plaintiff with the help of her husband and

attestors created Ex.A1, promissory note.

16. The suit O.S.No.55 of 1996 filed by the plaintiff against

defendant No.1, his brothers and father in respect of landed

property was dismissed after full length of trial and even the

appeal preferred by her against the said judgment was also

dismissed.

17. Plaintiff got examined PW2, one of the attestors. PW2 in

his cross examination deposed that he knows the plaintiff and

her husband for the last twenty years. He also deposed that he

gave evidence in other cases also. The evidence of PW2 is not

inspiring confidence about the execution of promissory note.

18. Against the evidence of PWs1 and 2, defendant No.2

examined herself as DW1 and examined Senior Assistant of

Housing Corporation, Mahboobnagar and through DW2, she got

marked Exs.X1 to X10.

19. Defendant No.1 died pending the suit. During his lifetime,

he filed written statement and denied the signature on the suit

promissory note. The burden of proof lies on the plaintiff to

prove the signature on Ex.A1.

20. It is pertinent to mention here that a perusal of Ex.B1,

certified copy of deposition of the plaintiff in O.S.No.55 of 1996

(appellant herein) shows that the plaintiff deposed that

defendant Nos.2 to 4 in that suit (including defendant No.1

herein) borrowed an amount of Rs.1,20,000/- from her about

two years back. She further deposed that she lent Rs.80,000/-

and it became Rs.1,05,000/- by June, 1995 and hence she

obtained mortgage deed for the said amount from the

defendants.

21. If really the deceased defendant No.1 borrowed an amount

of Rs.80,000/- under Ex.A1, promissory note, dated

28.12.1993, she would have deposed about this borrowal also in

the other suit. Having been deposed about other alleged

borrowal of amount from her, appellant being P.W.1 would have

deposed about borrowal of present suit debt also. Thus, all the

circumstances amply demonstrate that Ex.A1, promissory note

was not in existence by the date of giving evidence by PW1 i.e.

appellant herein, in O.S.No.55 of 1996.

22. PW2, one of the attestors is a resident of Alampur

Municipality, Mahboobnagar District. The plaintiff is resident of

Kurnool District and PW2 did not explain in his evidence as to

why he came down to the house of plaintiff and attested Ex.A1,

promissory note.

23. DW1, wife of the deceased deposed that her husband is

getting Rs.4,000/- per month and they also possess Ac.35-00

cents of land in Alampur Mandal, Mahboobnagar District. Ex.X1

is service register, Ex.X2 is acquittance register of the deceased

defendant No.1 and Exs.X3 to X9 are relevant entries in Ex.X2.

Signatures of deceased defendant No.1 are in English. Even

according to PW2, deceased defendant No.1 used to sign in

English only. Ex.X10 is letter, dated 25.10.2018 addressed by

deceased defendant No.1 to his office. Though it is scribed in

Telugu, signature is in English. In fact, the trial Court has taken

pains and compared the signature appearing on Ex.A1 with the

signature in Ex.X10 and came to conclusion that the writing of

letter differs.

24. Since the plaintiff failed to prove the execution of Ex.A1,

and also signature of deceased defendant No.1 on Ex.A1, the

presumption availed under Section 118 of the Negotiable

Instruments Act, 1881 is not available to the plaintiff. No cogent

evidence was let in by the plaintiff to prove the execution of

Ex.A1 and lending of money to the deceased defendant No.1.

25. Though it was argued that the trial Court did not consider

the evidence in proper perspective, in fact the trial Court

considered the evidence of witnesses as also documentary

evidence in proper perspective and dismissed the suit. The

plaintiff failed to prove passing of consideration as also the

signature of deceased defendant No.1 on Ex.A1. Thus, this

Court finds no merit in the appeal.

POINT NO.3:

26. As discussed above, there are no merits in the appeal and

the same liable to be dismissed.

27. Accordingly this appeal is dismissed. No costs.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

_______________________________ JUSTICE SUBBA REDDY SATTI

Date : 29.03.2022 IKN

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

APPEAL SUIT No.2518 of 2001

Date :29.03.2022

IKN