Cherukuri Narayana Rao. vs Majji Rambabu
2023 Latest Caselaw 5326 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

                  APPEAL SUIT No.463 of 2013

JUDGMENT:

1. 2nd Defendant before the trial court filed this appeal under

Section 96 read with Order XLI Rule 1 of the Code of Civil

Procedure.

2. 1st Respondent is the plaintiff before the learned trial

court. Respondent Nos.2,3,4 and 5 are defendant Nos.1,3,4 and

5 before the learned trial court. Learned counsel for appellant

submitted arguments.

3. For respondent No.1 appearance was made through a

learned counsel. However, no arguments are submitted.

Respondent Nos.2,3,4 and 5 are shown as not necessary parties

to this appeal.

4. Sri Cherukuri Neelakantam was an attender in

Vamsadhara Maintenance Division, Jalumuru, Srikakulam

District. Sri Majji Rambabu stated to have lent Rs.4,60,000/- to

Sri Cherukuri Neelakantam on 07.12.2009 and the borrower

agreed to repay it with 12% interest per annum as and when

demanded and executed a promissory note in favour of creditor.

Thereafter, the borrower died on 15.02.2010 survived by his

Dr. VRKS, J A.S.No.463 of 2013

wife and children. The creditor/plaintiff got issued a demand

notice dated 13.04.2010 to the legal heirs of the debtor. Since

no repayment was made, the creditor/Sri Majji Rambabu filed

O.S.No.145 of 2010 before learned Additional Senior Civil

Judge, Srikakulam. 2nd defendant therein filed a written

statement and remaining defendants filed a memo adopting the

same. They denied borrowing the money and execution of the

pro-note by the deceased. They contended that 2nd defendant

got issued reply notice dated 06.05.2010 to the plaintiff. They

further stated that deceased was in the habit of subscribing

signature in Telugu language and the signature on the pro-note

was not subscribed by the deceased. They also said that no

estate devolved upon them from the deceased and they sought

dismissal of the suit.

5. Learned trial court settled the following issues for trial:

Issues: -

1. Whether the suit promissory note is true, valid and

binding on the defendants?

2. Whether the estate of the deceased Cherukuri

Neelakantam devolved on the defendants?

Dr. VRKS, J A.S.No.463 of 2013

3. Whether the plaintiff is entitled to recover the amount

from the defendant as prayed for?

4. To what relief?

6. In proof of their respective pleadings, plaintiff testified as

PW.1 and one of the attestors to the suit promissory note

testified as PW.2. Ex.A1 is promissory note dated 07.12.2009.

Ex.A2 is office copy of legal notice dated 13.04.2010. Ex.A3 is

set of postal receipts showing that notice was dispatched to all

the defendants. Ex.A4 is postal acknowledgment received from

2nd defendant. Exs.A5 to A10 are un-served postal covers as

defendant Nos.1,3,4 and 5 did not receive them. Defendants

were offered to adduce their evidence. They did not adduce their

oral and documentary evidence. Thereafter, the suit was set for

hearing arguments. For plaintiff, learned counsel submitted

arguments. For defendants no arguments were submitted.

7. After considering the material on record and the

contentions raised before it, learned trial court recorded that

Ex.A1-promissory note was executed by Sri Cherukuri

Neelakantam and it is true, valid and binding and since the debt

was not repaid either by borrower or by his successors, the

plaintiff is entitled for recovery of the suit claimed amount. It

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gave definite findings based on evidence that the deceased being

an employee there were death benefits withheld by the employer

and the entire estate of the deceased devolved upon his wife and

children who are the defendants. Despite notice they did not

repay and therefore, learned trial court held that plaintiff is

entitled for recovery of suit claimed amount from the estate of

the deceased lying in the hands of the defendants.

8. Aggrieved by that, valuing the appeal at Rs. 5,44,860/-,

2nd defendant filed this appeal. Learned counsel contends that

under Ex.A1-promissory note consideration did not pass and

the evidence of PWs.1 and 2 was not consistent and the estate

of the deceased did not devolve upon his wife and children and

a speculative suit of the plaintiff was incorrectly decreed by the

learned trial court. On these submissions, the appellant seeks

to set aside impugned judgment.

9. The following points fall for consideration: -

1. Whether Ex.A1-promissory note was not executed by

Sri Cherukuri Neelakantam?

2. Whether estate of Sri Cherukuri Neelakantam did not

devolve upon his wife and children?

Dr. VRKS, J A.S.No.463 of 2013

3. Whether impugned judgment is incorrect on facts or

law?

POINTS: -

Ex.A1-promissory note is for Rs.4,60,000/- made on

07.12.2009. It purportedly bears the signatures of Sri

Cherukuri Neelakantam. Its contents indicate that he borrowed

Rs.4,60,000/- from plaintiff/1st respondent and agreed to repay

it with 12% interest per annum as and when demanded. Since

the defendants in the suit denied the debt and denied the

execution of pro-note, it was up to the plaintiff to sustain his

case by producing relevant evidence. Plaintiff being the creditor

and a party to the Negotiable Instruments Act, he testified as

PW.1 in support of his case. PW.2 is a neutral and independent

witness. PW.2 said that he witnessed Sri Cherukuri

Neelakantam borrowing Rs.4,60,000/- from plaintiff and he

witnessed Sri Cherukuri Neelakantam signing the pro-note. He

further said that having witnessed all those facts, he subscribed

his signature as an attesting witness on the promissory note. By

the above evidence plaintiff was able to show passing of

consideration and due execution of pro-note by Sri Cherukuri

Neelakantam.

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10. Defendants contended that Sri Cherukuri Neelakantam

never signed in the manner that is available in the said pro-note

and he used to subscribe his signature in Telugu Language.

They did not produce any specimen writings and signatures of

Sri Cherukuri Neelakantam before the learned trial court. It is

undisputed that Sri Cherukuri Neelakantam was an employee

and his signatures were available in his office records.

Defendants did not produce any of them. They did not confront

PWs.1 and 2 with the genuine signatures of Sri Cherukuri

Neelakantam. None of the defendants entered the witness box in

support of their pleadings. Thus, the defendants failed to

sustain their defence. It was in those circumstances, learned

trial court rightly concluded that Ex.A1-promissory note was

executed by Sri Cherukuri Neelakantam only after receipt of

money mentioned in the said promissory note and that

remained undischarged.

11. Through the evidence of PWs.1 and 2, the defendants

elicited that there are death benefits accrued on the death of Sri

Cherukuri Neelakantam. Under the service rules, death benefits

were available for disbursal. Defendants admitted their

relationship with the deceased. Wife and children of deceased

male being class I legal heirs, learned trial court rightly

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concluded that they succeeded the estate of the deceased. Death

benefits being part of the estate, the conclusions of the trial

court are right on facts and they are in accordance with law.

The comment of the learned counsel for appellant is that the

evidence of PWs.1 and 2 is inconsistent. There is no truth in

that. On the relevant facts that were placed for consideration

their evidence was consistent. The contention of the appellant

that it is a speculative suit is a contention without any merit

and that question has not been argued before this Court.

Impugned judgment indicates scrutiny of the oral and

documentary evidence by the learned trial Court. Therefore, the

comment of the appellant that the learned trial Court failed to

appreciate the evidence is against the truth. This Court finds no

reason to disagree with the factual findings and conclusions

reached by the trial court. All the points are held against the

appellant.

12. In the result, this appeal is dismissed. Consequently,

impugned judgment dated 14.08.2012 of learned Additional

Senior Civil Judge, Srikakulam in O.S.No.145 of 2010 stands

confirmed. The appellant as well as respondent Nos.2 to 5

should abide by the decree and should discharge the decretal

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debt after giving due credit to any payments made into court by

them by virtue of orders of the court.

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

stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 06.11.2023 Dvs

Dr. VRKS, J A.S.No.463 of 2013

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

APPEAL SUIT No.463 of 2013

Date:06.11.2023

Dvs