P Bala Maddilety Died By His Lrs 2 ... vs K Thimmaiah, Kurnool Dist
2022 Latest Caselaw 5867 AP

         THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


                        A.S.No.138 of 2017
JUDGMENT:

This appeal, under Section 96 CPC, is preferred against the

judgment and decree, dated 31.10.2016, passed in O.S.No.329 of

2012 on the file of the Court of Senior Civil Judge, Kurnool.

2. The case of the plaintiff is that the defendant borrowed an

amount of Rs.2,00,000/- on 15.05.2009 and another sum of

Rs.2,00,000/- on 20.12.2009 from the plaintiff for his family

necessities and on the said dates, he executed two promissory

notes in favour of the plaintiff agreeing to repay the same with

interest at 24% per annum on demand to the plaintiff. Though the

plaintiff demanded repayment of the debt under the promissory

notes, the defendant finally refused to pay the amount. The

plaintiff got issued a legal notice, dated 20.03.2012 to the

defendant. The defendant issued reply with all false allegations.

Hence, the plaintiff is constrained to file the present suit for

recovery of a sum of Rs.6,60,000/- against the defendants 2 & 3

with subsequent interest at 24%.

3. The 1st defendant filed his written statement during his life

time denying the material averments and putting the plaintiff to

strict proof of the same. After receipt of the legal notice, the 1st

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defendant paid entire debt under the said promissory notes with

interest in the presence of S.Bala Venkata Swamy and the

defendant's wife, Nagamani, in the house of the plaintiff at

Bethamcherla and the plaintiff returned the said two pro-notes.

4. After filing of his written statement, the 1 st defendant died

and defendants 2 & 3 were added as his legal representatives.

After appearance, defendants 2 & 3 filed their written statement

denying the plaint averments and contending that the suit

promissory notes are fabricated for wrongful gain and no

consideration is passed under them. The deceased 1st defendant

never signed or put his thumb impression on the promissory notes.

The attestors and scribe are close associates of the plaintiff. These

defendants did not succeed to the estate of the deceased 1st

defendant. The suit is liable to be dismissed.

5. Basing on the above pleadings, initially, the following issues

were settled for trial:

(i) Whether the plaintiff is entitled for recovery of the suit amount of Rs.6,60,000/- under two promissory notes together with subsequent interest and costs as prayed for?

(ii) Whether the suit promissory notes are already discharged by the defendant in the presence of Bala Venkata Swamy and Nagamani as contended by him in his written statement?

(iii) Whether the suit promissory notes are true, valid and binding on the defendant?

(iv) To what relief?

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Consequent to the filing of the written statement by defendants 2 &

3, the following additional issue was also framed:

Whether the estate of the deceased defendant No.1 in the hands of D2 and D3 is liable for the suit claim?

During the course of trial, the plaintiff got himself examined as PW1

and also examined PW2 and got marked exhibits A1 to A3. On the

other hand, the 3rd defendant got himself examined as DW1. But,

no documentary evidence was adduced.

6. On merits, the trial Court, decreed the suit with costs for a

sum of Rs.6,60,000/- together with subsequent interest at the rate

of 24% per annum from the date of the suit to the date of decree

and at 6% per annum therefrom till the date of realization on the

principal amount of Rs.4,00,000/- against the estate of the

deceased 1st defendant in the hands of defendants 2 & 3.

7. Aggrieved thereby, the defendants 2 & 3 preferred this

appeal. It is contended on behalf of the defendants 2 & 3 that the

trial Court erroneously decreed the suit on improper appreciation of

evidence and the defendants 2 & 3 are not liable for the alleged

debts of the 1st defendant; and that the plaintiff did not amend the

prayer after the legal representatives of the deceased 1 st defendant

were brought on record.

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8. The main ground of argument advanced in appeal is that

there is no finding given by the trial Court as to what estate is left

by the deceased in the hands of the defendants 2 & 3, though there

is a specific plea taken by them in the written statement denying

receipt of any estate by them from the deceased 1 st defendant.

9. The trial Court decreed the suit directing the decretal amount

to be realised from the estate of the deceased 1 st defendant in the

hands of defendants 2 & 3. Of course, there is no finding as to

what is the estate left by him. Though no issue was framed on this

aspect, the defendants 2 & 3 did not take any steps to get a specific

issue framed in this regard as to whether the deceased has left any

estate and continued with the trial. But, an additional issue was

framed as to whether the estate of the deceased/defendant No.1 in

the hands of defendants 2 & 3 is liable for the suit claim and also

the same is also answered in favour of the plaintiff.

10. Insofar as the suit claim is concerned, the contention of the

plaintiff is that the 1st defendant borrowed an amount of

Rs.2,00,000/- on 15.05.200 and Rs.2,00,000/- on 20.12.2009

under two different promissory notes, but the same were not repaid

by the defendant. Though the defendant admitted in his reply

under exhibit A6, dated 31.03.2012, and also in the written

statement, he defended the suit on the ground that the said

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amounts were paid to the plaintiff and those two promissory notes

were taken back after tearing them and those were enclosed to the

written statement. After filing of the written statement, the 1st

defendant died. His wife and son were added as defendants 2 & 3.

They filed separate written statements. Son was examined as DW1.

But, he failed to file two promissory notes annexed to the written

statement of 1st defendant, in evidence on behalf of the defendants.

On the other hand, the plaintiff filed two separate promissory notes

marked as exhibits A1 and A2 for the same amount and with the

same dates. His (PW1) evidence is supported by the evidence of

PW2, who is the sole attestor of exhibits A1 and A2. In fact, the

said promissory notes are autographs of the 1st defendant. They

give rise to presumptive of being supported by the consideration.

Therefore, the plaintiff could discharge his initial burden of

establishing the suit claim, but the defendants failed to disprove the

case of the plaintiff nor could they establish their defence. DW1 in

his evidence stated that the 'scribe' and attestor of suit promissory

note are close associates of the plaintiff and further stated that the

deceased 1st defendant had never signed or put thumb impression

on the promissory notes. This part of evidence is contrary to the

documents under exhibits A1 and A2. As is already noted, there is

no separate scribe and those documents are autograph of the

deceased. DW1 has not even referred to the repayments said to

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have been made by the 1st defendant as stated in his written

statement. Except denying the suit transaction, nothing was

deposed by DW1 in his evidence in chief examination. No other

witness has been examined nor was any other documentary

evidence placed by the defendants 2 & 3.

11. Thus, the trial Court has rightly decreed the suit based on the

suit promissory notes under exhibits A1 and A2. Mere plea taken in

the written statement is not proof of the case of the defendants.

Since the question of any estate would arise in the proceedings

under execution, as the trial Court decreed the suit only against the

estate left by the 1st defendant in the hands of defendants 2 & 3,

there need not be any detailed enquiry in the trial Court as to what

exactly is the estate left by the deceased. If at all, there is no

estate left by the 1st defendant with the defendants 2 & 3, the

plaintiff cannot get the decree executed at all against the

defendants 2 & 3 who are the appellants herein. As such, there is

no merit in the appeal.

12. In the result, the appeal is dismissed.

There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

________________ B.S BHANUMATHI, J 05th September, 2022 RAR