Andhra Pradesh High Court - Amravati
Voonna Janardhana Srinivasa ... vs Sunkari Sriram Prasad, on 14 September, 2022
HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.216 of 2022
JUDGMENT:
Defendant in the suit filed the above second appeal
against the judgment and decree dated 14.12.2021 in
A.S.No.143 of 2019 on the file of I Additional District Judge,
Srikakulam, confirming the judgment and decree dated
20.09.2019 in O.S.No.78 of 2016 on the file of Senior Civil
Judge, Rajam.
2. For the sake of convenience and brevity, the parties
herein are referred to as they are arrayed in the suit.
3. Plaintiff filed suit O.S.No.78 of 2016 for recovery of an
amount of Rs.7,67,333/-. In the plaint, it was contended
interalia that the defendant borrowed an amount of
Rs.2,00,000/- from the plaintiff on 15.09.2013 agreeing to
repay the same with interest @24% per annum and executed
a promissory note on the even date. While the debt is
subsisting, defendant again borrowed an amount of
Rs.3,00,000/- from the plaintiff on 25.12.2014 agreeing to
repay the same with interest @24% per annum and executed
a promissory note on the same day. Plaintiff demanded the
defendant to discharge the debt, however, defendant
postponed the same on one pretext or other. Hence, suit was
filed.
4. Defendant filed written statement and contended
interalia that he is running gold business since long time;
that for some time, defendant run gold business in the shop
of plaintiff; that when the plaintiff demanded the defendant to
vacate the shop, he requested time for one year, but plaintiff
did not accept the same and hence, some disputes arose; that
later as per the decision of elders, defendant vacated the shop
and established shop in his own house; that plaintiff bore
grudge against the defendant and created the promissory
notes with the help of attestors and filed the suit and thus
prayed the Court to dismiss the suit.
5. Basing on the above pleadings, the trial Court framed
the following issues:
1) Whether the suit promissory note dated 15.09.2013
and suit promissory note dated 25.12.2014 are true,
valid and binding on the defendant?
2) Whether the plaintiff is entitled for suit claim as
prayed for?
3) To what relief?
6. On behalf of plaintiff, he examined himself as P.W.1
and got examined P.Ws.2 and 3. Exs.A-1 to A-10 were
marked. On behalf of defendant, he examined himself as
D.W.1. No documents were marked.
7. Trial Court on consideration of both oral and
documentary evidence came to the conclusion that plaintiff
proved the execution Exs.A-1 and A-2 and also passing of
consideration and eventually, decreed the suit for a sum of
Rs.7,67,333/- with future interest @12% per annum from the
date of suit till the date of decree and thereafter @6% per
annum on the principal amount of Rs.2,00,000/- and
Rs.3,00,000/-, total Rs.5,00,000/-.
8. Aggrieved by the said judgment and decree, defendant
filed appeal A.S.No.143 of 2019 on the file of I Additional
District Judge, Srikakulam. Lower appellate Court being the
final factfinding Court on appreciation of both oral and
documentary evidence, dismissed the appeal by judgment
and decree dated 14.12.2021. Assailing by the said judgment
and decree, the above second appeal is filed.
9. Heard Ms.Sodum Anvesha, learned counsel for
appellant and Sri P.Raja Sekhar, learned counsel for
respondent.
10. Learned counsel for the appellant would submit that
the Courts below failed to appreciate the evidence of P.Ws.2
and 3, attestors of Exs.A-1 and A-2 in proper perspective.
She submits that Courts below ought not to have placed the
burden of proof on defendant regarding signatures on Exs.A-
1 and A-2. She would submit that plaintiff failed to prove
passing of consideration under Exs.A-1 and A-2.
11. Learned counsel for the respondent supported the
judgments of the Courts below.
12. Basing on the pleadings and contentions, the following
substantial questions of law would arise for consideration:
1) Whether the plaintiff proved execution of Exs.A-1
and A-2 promissory notes and passing of
consideration?
2) Whether the Courts below failed to appreciate the
evidence of P.Ws.1 to 3 in proper perspective? If
so, whether the judgments of the Courts below
are liable to be set aside?
13. Plaintiff instituted the suit for recovery of amount on
the strength of two promissory notes executed by defendant,
i.e. for Rs.2,00,000/- on 15.09.2013 and Rs.3,00,000/- on
25.12.2014 along with interest. Defendant denied the
execution and further pleaded forgery. In fact, in the written
statement itself defendant pleaded that he would file petition
to send the promissory notes to the handwriting expert to
compare the signatures.
14. Plaintiff, to prove the execution of Ex A-1 and A-2
examined himself as P.W.1. He deposed about his lending
the amount, and defendant executing Ex A-1 and A-2. In the
cross examination nothing contra was elicited. He also
examined P.W.2 and P.W.3 attestors of Exs.A-1 and A-2. The
evidence of P.Ws.1 to 3 is consistent regarding execution of
Exs.A-1 and A-2 by defendant and, also passing of
consideration. Thus, by examining himself and also by
examining attestors P.W.1 discharged legal burden and hence
the ouns shifted to defendant to prove that Exs A-1 and A-2
are forged, and no consideration was passed. Defendant
having pleaded that he neither borrowed the amount nor
executed Exs.A-1 and A-2 promissory notes, failed to rebut
the plaint allegations by leading any cogent evidence.
However, defendant expect pleading forgery could not prove
the same. Defendant also could not prove that no
consideration was passed under Ex A-1 and A-2. The plaintiff
as P.W.1 and attestors as P.W.2 and P.W.3 in one voice,
deposed about execution of promissory notes and passing of
consideration.
15. A perusal of Exs.A-1 and A-2 would indicate that they
were scribed by defendant himself. When the defendant
himself scribed Exs.A-1 and A-2 and put his signatures,
having been pleaded forgery, no steps were taken by
defendant to send the promissory notes to the expert for
comparison. Courts below recorded finding that 'A perusal of
Exs.A-1 and A-2 contain the signatures of defendant, it
discloses that defendant signed in some documents in Telugu
and in some documents in English and in some documents
as "V.Srinivas Kumar" and in some documents as "V.J.S.K.".'
16. Thus, the above instance shows that defendant is in the
habit of changing his signatures from time to time. Having
been pleaded that he would take steps to send Exs.A-1 and
A-2 to hand-writing expert, no steps were taken by defendant
in that regard. Mere pleading is not sufficient, and defendant
must lead evidence in proof of the pleading.
17. The findings recorded by the Courts below regarding
execution of Exs.A-1 and A-2 and passing of consideration
are based on appreciation of evidence. The evidence of
witnesses examined on behalf of plaintiff is consistent and
nothing contra was elicited in their cross examination.
18. Insofar as scope of interference in the second appeal
while exercising jurisdiction under Section 100 of CPC, this
Court 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 manifestly perverse and
contrary to the evidence on record.
19. The findings of the facts recorded by the Courts below
are based on both oral and documentary evidence and they
do not warrant any interference of this Court under Section
100 of CPC. No question of law, much less substantial
questions of law arise for consideration. Hence, the second
appeal is liable to be dismissed, however, without costs.
20. Accordingly, the second appeal is dismissed at
admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications
shall stand closed.
_________________________
SUBBA REDDY SATTI, J
14th September, 2022
PVD
