Danduboina Srinivasa Rao, vs Varagogula Rudrayya,
2022 Latest Caselaw 7836 AP

           THE HON'BLE MS JUSTICE B.S.BHANUMATHI

                        A.S.No.373 of 2017

JUDGMENT:

This appeal is filed against the judgment and decree dated

20.01.2017 in O.S.No.182 of 2014 on the file of the Court of IX

Additional District and Sessions Judge, Family Court, East

Godavari District, Rajamahendravaram, by which the suit filed

for recovery of an amount of Rs.10,44,866/- basing on a

promissory note dated 12.08.2012 was decreed. The aggrieved

defendant filed this appeal.

2. The respondent/plaintiff filed the suit averring that the

defendant borrowed an amount of Rs.7,00,000/- from the

plaintiff on 12.08.2012 to meet his family expenses, sundry

debts and executed the promissory note on the even date

agreeing to repay the amount with interest @ 24% per annum.

It is further averred that the defendant failed to pay the amount

inspite of repeated demands by the plaintiff, however, the

defendant issued a cheque bearing No.478949 for an amount of

Rs.9,00,000/- on 04.12.2013, drawn on Andhra Bank, Kadiyam

branch in favour of the plaintiff to discharge the above said

loan, but the said cheque was returned with the endorsement

'insufficient funds' and thus the plaintiff got issued a legal

notice dated 19.12.2013 to the defendant calling upon him to

pay the amount, and as he failed to pay, the suit is filed

claiming a sum of Rs.10,44,866/- being a total amount of the

principal of Rs.7,00,000/- and interest of Rs.3,44,866/-

calculated @ 24% per annum from 12.08.2012 to 01.09.2014.

It is further averred that the defendant wrongfully alienated

properties by executing collusive and fraudulent four registered

sale deeds and one gift settlement deed dated 28.02.2014 in

favour of his brother-in-law to avoid payment of amount due to

the plaintiff, and therefore, the plaintiff got issued a registered

legal notice on 15.05.2014 to the defendant, for which the

defendant did not issue any reply, and consequently the plaintiff

filed a creditor insolvency petition to annul the sale deeds and

gift deed. It is further contended that the defendant is not

entitled to any benefits under the Act 7 of 77, Act 45 of 1987 or

Act 9 of 1990 or any other debt relief law as the defendant is

doing business and cultivation.

3. The defendant resisted the suit by filing written statement

contending that the averments in the plaint regarding borrowal

of the amount and execution of the promissory note are false

and affirming that the defendant has never borrowed any

amount from the plaintiff, nor did he execute the suit

promissory note. The defendant claimed that the suit

promissory note is a rank forgery and fabricated and it is not

supported by any consideration. Further it is also pleaded that

the plaintiff has no capacity to lend the suit amount. The

allegation that the defendant issued cheque is also described as

a concocted story and denied issue of any such cheque to the

plaintiff. The allegation of wrongful alienations is also denied

and prayed to dismiss the suit with exemplary costs.

4. Basing on the above pleadings, the trial Court framed the

following issues:

1. Whether the suit promissory note dated 12.08.2012 is true, valid by consideration and binding on the defendants?

2. Whether the plaintiff is entitled for recovery of amount of Rs.10,44,866/-?

3. Whether the plaintiff is entitled to quadrate of interest?

4. To what relief?"

5. On behalf of the plaintiff, he got himself examined as

PW.1 and marked the suit promissory note as Ex.A.1 and the

legal notice dated 15.05.2014 as Ex.A.2, and the postal

acknowledgment as Ex.A.3. One of the attestors of the suit

promissory note is examined as PW.2. The defendant got

himself examined as DW.1 and no documentary evidence was

filed.

6. After hearing both parties, the trial Court decreed the suit

with costs for an amount of Rs.10,44,866/- payable by the

defendant to the plaintiff with interest @ 12% per annum from

the date of suit till the date of decree and thereafter @ 6% per

annum from the date of decree till the date of realization on the

principal amount of Rs.7,00,000/-.

7. Having aggrieved by the decree and judgment, this appeal

is preferred on the ground that the trial Court failed to see that

the suit promissory note is rank forgery and fabricated and that

the plaintiff has no capacity to lend the amount in the

promissory note and also that the plaintiff failed to examine the

scribe inspite of specific denial of the execution of the

promissory note and the same goes to be fatal against the case

of the plaintiff. It is also contended that the trial Court decreed

the suit on mere presumptions and assumptions and also on

merely ground that the appellant failed to give reply to the legal

notice dated 15.05.2014.

8. Heard the learned counsel for the appellant and the

respondent. The learned counsel for the appellant reiterated the

grounds of appeal and whereas the learned counsel for the

respondent supported the observations of the trial Court.

9. Since the execution of the promissory note and receipt of

consideration denied by the defendant, it is the initial burden of

the plaintiff to establish his case and thereafter the onus would

be shifted to the defendant to prove his case in defence.

10. Thus, to discharge the initial burden of the plaintiff, he

relied on the oral evidence and also the evidence of PW.1. Apart

from the documentary evidence, primarily Ex.A.1, since neither

of the parties has sought opinion of an expert, it is only the oral

evidence of both parties which is on record available to

appreciate the evidence of both parties. To prove the signature,

it is not just the opinion of the expert, even oral evidence of a

person who has seen signing is sufficient, if credit-worthy. PWs

1 and 2 have categorically deposed in support of the plaintiff's

case and equally the defendant has given evidence denying his

liability and the case of the plaintiff. Mere oral denial does not

suffice to disprove the case of the plaintiff. No enmity between

the plaintiff and the defendant or, PW.2 and the defendant, is

shown, nor are there any other circumstances which go to show

that the suit promissory note is forged.

11. The signature of the defendant on his written statement

and the signature on the promissory note are not the same in

form. There is every possibility for the defendant to change his

signature in the written statement etc in view of his defence, but

on careful examination of the style of the writing in the

signatures with reference to the strokes of letters 'D' and 'S';

and also the place of putting a dot between the letters 'D' and 'S'

used in his signature on the written statement and the

promissory note, these signatures appear to be similar.

12. While appreciating the evidence in a civil case, the

parameters adopted are preponderance of probabilities based on

the approach of a prudent person, unlike in a criminal case

where proof beyond reasonable doubt is required. Thus,

considering the evidence of PWs 1 and 2 as a whole and the

observations of this Court regarding the signatures, this Court

is of the view that the plaintiff could establish that the suit

promissory note was executed by the defendant. It is contended

that the scribe is not examined. Examination of attestor would

help the plaintiff to prove that he defendant executed the

promissory note. Therefore non-examination of the scribe is not

fatal to the case of the plaintiff. However, the defendant could

not prove his defence, nor could he disprove the case of the

plaintiff.

13. Thus, there is no merit in the grounds urged in the

appeal.

14. In the result, the appeal is dismissed with costs payable

by the appellant to the respondent.

Miscellaneous petitions, pending if any, shall stand

closed.

___________________________ JUSTICE B.S.BHANUMATHI

Date :14-10-2022

PNV