Atluri Anuradha vs Nuvvula Venkata Raju
2024 Latest Caselaw 7123 AP

Andhra Pradesh High Court - Amravati

Atluri Anuradha vs Nuvvula Venkata Raju on 12 August, 2024

   IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

             MONDAY, THE TWELVETH DAY OF AUGUST
                TWO THOUSAND AND TWENTY FOUR

                               PRESENT
       THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     APPEAL SUIT No.755 OF 2008

Between:

   1. Atluri Anuradha, W/o.late Venkateswara Rao.
   2. Atluri Gayatri, D/o.Late Venkateswara Rao
   3. Atluri Priyanka, D/o.late Venkateswara Rao
      All are R/o.D.No.70-19B-2/2E, Suresh Nagar,
      Kakinada, East Godavari District.
                                                    ...   Appellants

                                  AND

Nuvvula Venkata Raju, S/o.Haranadha Rao,
R/o.Pedabrahmadevam, Samalkot Mandal,
East Godavari District.                             ... Respondent


Counsel for the appellants:

Ms.Bindu representing Sri B.Adinarayana Rao

Counsel for the respondent

Sri Josyula Bhaskara Rao


The Court made the following:
                                     2                                 VGKRJ
                                                               AS 755 of 2008




JUDGMENT:

-

This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/defendants challenging the Decree and Judgment, dated 07.07.2008, in O.S. No.455 of 2005 passed by the learned I Additional Senior Civil Judge, Kakinada [for short 'the trial Court']. The Respondent herein is the plaintiff in the said Suit.

2. The respondent/plaintiff filed the Suit for recovery of a sum of Rs.9,03,875/- being the principal and interest due on two promissory notes dated 15.12.2003 and 15.04.2004 executed by one Atluri Venkateswara Rao in favour of plaintiff for Rs.3,50,000/- each and for costs.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.455 of2005, are as under:

One Atluri Venkateswara Rao, who is the husband of first defendant and father of defendants 2 and 3 borrowed an amount of Rs.3,50,000/- from the plaintiff on 15.12.2003 for his business purpose and for discharging his sundry debts and executed a promissory note on the same day in favour of plaintiff agreeing to repay the same with interest at 18% per annum. Again the said Atluri Venkateswara Rao borrowed an amount of Rs.3,50,000/- from the plaintiff on 15.04.2004 for his business purpose and family expenses and executed a promissory note on the same day in favour of plaintiff agreeing to repay the same with interest at 18% per annum. But inspite of several demands made by 3 VGKRJ AS 755 of 2008

the plaintiff, the said Atluri Venkateswara Rao did not choose to pay any amount and died intestate, leaving behind his wife and children, who are the defendants 1 to 3 respectively. Subsequent to the death of Atluri Venkateswara Rao, the plaintiff requested the defendants for several times to discharge the debts due under the pronotes from the estates of Atluri Venkateswara Rao, which on his death devolved upon the defendants, but the defendants postponing the matter of discharging the debt and trying to dispose of the properties of late Atluri Venkateswara Rao to evade the debts due to the plaintiff. Hence, the plaintiff is constrained to file the suit.

5. The first defendant filed a written statement by denying all the averments mentioned in the plaint and further contended as under: -

The first defendant does not know who the plaintiff is, even Atluri Venkateswara Rao may not know the plaintiff, since the family of Venkateswara Rao know all his friends and well-wishers. Atluri Venkateswara Rao is the Managing Partner of City Cable in Kakinada, if he happend to borrow any amount, he would have borrowed the amounts in the capacity of managing partner of city cable and he never borrowed amounts personally and the suit pronotes are forged and fabricated documents since the first defendant and her husband Atluri Venkateswara Rao left Kakinada on 13.04.2004 to Tirupati by Seshadri Express train No.7101 from Kakinada town to Tirupati, along with them one City Cable Operator also accompanied to Tirupati to have Darsan of Lord Venkateswara Swamy, and they returned to Kakinada on 16.04.2004 and prayed the Court to dismiss the suit.

6. The defendants 2 and 3 remained exparte in the trial Court itself.

4 VGKRJ AS 755 of 2008

7. Based on the above pleadings, the trial Court framed the following issues:

(i) Whether the suit pronote dated 15.12.2003 is a forged and fabricated one?

(ii) Whether the suit pronote dated 15.04.2004 is a forged and fabricated one?

(iii) Whether the plaintiff is entitled to recover the suit claim?

(iv) Whether the defendant travelled with one Atluri Venkateswara Rao from Tirupati to Samalkot on 16.04.2004 bearing PNR No.1324140936 in S5 Coach and was not present on 15.04.2004 in Kakinada?

(v) To what relief?

8. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 and PW2 were examined and Ex.A1 and Ex.A2 were marked. On behalf of the Defendants DW1 and DW2 were examined and Ex.B1 was marked.

9. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit with costs vide its judgment, dated 07.07.2008, against which the present appeal is preferred by the appellants/defendants in the Suit questioning the Decree and Judgment passed by the trial Court.

10. Heard Ms.Bindu, learned counsel representing Sri B.Adinarayanarao, learned counsel for appellants and Sri Josyula Bhaskara Rao, learned counsel for respondent.

11. The learned counsel for appellants would contend that the judgment of the Court below in decreeing the suit is contrary to law. She 5 VGKRJ AS 755 of 2008

would contend that the Court below gravely erred in relying upon the evidence of PW1 and PW2 without even referring to their evidence and she would further contend that the Court below gravely erred in placing the burden on the defendants to prove Ex.A1 and Ex.A2 pronotes are forged documents and she would further contend that the appeal may be allowed by setting aside the decree and judgment passed by the learned trial Judge.

12. Per contra, the learned counsel for respondent would contend that on appreciation of entire evidence on record, the learned trial Judge rightly decreed the suit and there is no need to interfere with the finding given by the learned trial Judge.

13. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination:

1. Whether the trial Court is justified in holding that the suit promissory notes are true, valid and binding on the defendants and the plaintiff is entitled the suit claim?

2. Whether the decree and judgment passed by the trial court needs any interference? If so, to what extent?

14. Point No.1 :

Whether the trial Court is justified in holding that the suit promissory notes are true, valid and binding on 6 VGKRJ AS 755 of 2008

the defendants and the plaintiff is entitled the suit claim?

The case of the plaintiff is that one Atluri Venkateswara Rao borrowed a sum of Rs.3,50,000/- from the plaintiff for the purpose of investing in business and for discharging his sundry debts and executed a demand promissory note on the same day in favour of the plaintiff and later on 15.04.2004 the said Atluri Venkateswara Rao again borrowed an amount of Rs.3,50,000/- and also executed another demand promissory note and subsequently though the plaintiff demanded the Atluri Venkateswararao, he failed to discharge the suit debt and later he died by leaving the defendants as legal representatives of the deceased Atluri Venkateswararao and the defendants also failed to discharge the suit debt to the plaintiff though the plaintiff demanded the defendants. The defense put forth by the defendants in the written statement itself is that Ex.A1 and Ex.A2 are forged and fabricated documents. Since there is a plea of forgery, denial of execution of pronotes and passing of consideration, the burden is on the plaintiff to prove the execution of Ex.A1 and Ex.A2 promissory notes and passing of consideration on Ex.A1 and Ex.A2 promissory notes.

15. The plaintiff is examined as PW1. He reiterated his stand as per his pleadings. PW1 testified that one Atluri Venkateswararao borrowed a sum of Rs.3,50,00/- for the purpose of investing in business on 15.12.2003 and executed Ex.A1 demand promissory note and subsequently on 15.04.2004 again the said Atluri Venkateswara Rao borrowed another sum of Rs.3,50,000/- and executed Ex.A2 demand promissory note in favour of the plaintiff. Admittedly, the defendants are not having personal knowledge about the alleged Ex.A1 and Ex.A2 7 VGKRJ AS 755 of 2008

pronotes transactions. The contention of the plaintiff is that one Atluru Venkateswara Rao borrowed a sum of Rs.3,50,000/- under Ex.A1 on 15.12.2003 and the said Atluri Venkateswara Rao again borrowed a sum of Rs.3,50,000/- on 15.04.2004 under Ex.A2 promissory note and subsequently the said Atluri Venkateswararao died by leaving the defendants as his legal representatives. The relationship of defendants with Atluri Venkateswara Rao is not in dispute by the defendants. The death of Atluri Venkateswara Rao is also not in dispute by the defendants.

16. The defense put forth by the first defendant in the written statement is that Atluri Venkateswara Rao was the managing partner of City Cable in Kakinada and if he happened to borrow any amount he would have borrowed the amount in the capacity of managing partner of City Cable and he never borrowed any amount personally. It is not the case of the appellants that Venkateswara Rao is not in the habit of borrowing money. There is no specific plea in the written statement that the plaintiff is not having any capacity to lend money nor it was suggested to PW1 in cross examination about the financial capacity of the plaintiff. More so, the plaintiff has explained about the source of income to lend money in cross examination in his evidence itself.

17. To prove the execution of Ex.A1 and Ex.A2 pronotes and also passing of consideration under Ex.A1 and Ex.2 promissory notes, the plaintiff relied on the evidence of PW2. PW2 is one of the attestor in the pronotes, he testified about the borrowing of Rs.3,50,000/- by Atluri Venkateswararao under Ex.A1 pronote and he also testified the amount of R.3,50,000/- borrowed by Atluri Venkateswararao under Ex.A2 promissory note. His evidence goes to how that another attestor was brought by borrower Venkateswararao himself, though he was cross 8 VGKRJ AS 755 of 2008

examined by the learned counsel for defendants, no enimity was suggested to PW2 in cross examination by the learned counsel for defendants. It is not the case of the defendants that they are having enimity with PW2, due to that enimity PW2 deposed falsehood against the defendants. The material on record clearly reveals that the evidence of PW1 is well corroborated by the evidence of PW2 about the borrowing of amount under Ex.A1 and Ex.A2 promissory notes by Atluri Venkateswara Rao. It is not in dispute that the defendants are the legal representatives of the deceased Atluri Venkateswara Rao and the Atluri Venkateswara Rao is no more and he died prior to filing of the suit itself. Therefore, the plaintiff discharged his initial burden to prove Ex.A1 and Ex.A2 promissory notes.

18. It is settled that when the suit is based on the promissory note and the promissory note is proved to have been executed, Section 118-A rises the presumption, until the contrary is proved, that the promissory note was made for consideration. That initial presumption raised under Section 118-A become unavailable when the plaintiff himself pleads in the plaint different considerations. If he pleads that the promissory note is supported by consideration as recited in Negotiable Instrument and the evidence adduced in support thereof, the burden is on the defendants to disprove that the suit pronotes are not supported by consideration. If the consideration is not valid in law nor enforceable in law, the Court would consider whether the suit promissory notes are supported by valid consideration or legally enforceable consideration. As stated supra, the plaintiff discharged his initial burden to examine the one of the attestor in Ex.A1 and Ex.A2 promissory notes as PW2. Further more, it is the case of PW2 that another attestor was brought by the borrower Venkateswara Rao himself. Therefore, the plaintiff discharged his initial burden about 9 VGKRJ AS 755 of 2008

the passing of consideration and also execution of Ex.A1 and Ex.A2 promissory notes.

19. The first defendant is examined as DW1. As per her evidence, her husband Venkateswara Rao is the father of defendants 2 and 3 and the signatures on the two pronotes were fabricated or forged by the plaintiff for his unlawful gain. In her cross examination when elicited, she admits that she does not have any document signed by her husband available with her and she saw the signature of her husband when he signed in office papers. It is the case of defendant in the written statement itself that Atluri Venkateswara Rao was the managing partner of City Cable in Kakinada and he would have borrowed the amounts in the capacity of managing partner of City Cable. The above defense put forth by the appellants in the written statement itself goes to show that the admitted documents containing the signature of the said Atluri Venkateswara Rao were seen by her in the office of her husband, then what prevent the defendants to take steps to send Ex.A1 and Ex.A2 pronotes for expert opinion. Admittedly, the appellants failed to take any steps to send the suit pronotes along with admitted signatures on the documents for expert opinion.

20. It is the case of the defendants that the suit pronotes are forged and fabricated documents and on 13.04.2004 the said late Atluri Venkateswara Rao left Kakinada by Seshadri Express train No.7101 from Kakinada town to Tirupati and along with Venkateswara Rao and the defendant, the City Cable Operator also accompanied to Tirupati to perform darsan of lord Venkateswara, the defendant and the City Cable operator travelled on a ticket, Kakinada Town to Tirupati and they had performed Darshan at Tirumala and they returned to Kakinada on 10 VGKRJ AS 755 of 2008

16.04.2004. The defendants relied on the evidence of DW2. There is no specific pleading in the written statement that one T.Apparao i.e., DW2 travelled along with the first defendant and her husband in a train, another important admission made by DW2 in his evidence in cross examination itself is that there is no documentary evidence with him to show that he travelled along with the family of Atluri Venkateswara Rao to Tirumala and stayed at Vishnusadan. Another admission made by him in his evidence in cross examination is himself and husband of DW1 are family friends and DW1 asked him to give evidence. The defendants relied on Ex.B1 travel particulars. With regard to Ex.B1 is concerned there is a mention in Ex.B1 that Venkateswara Rao and other persons booked the tickets, but admittedly there is no evidence on record to show that they performed the journey from Kakinada to Tirupati by Seshadri Express. In the absence of any evidence on record, it is unsafe to believe the statement of DW1 that on the date of alleged execution of Ex.A2 she travelled along with her husband from Kakinada to Tirupati by Seshadri Express. Admittedly there is no other documentary evidence to show that DW2 travelled along with family of Atluri Venkateswara Rao to Tirumala. As per the evidence of DW2, the records of Tirumala Tirupati Devasthanam (T.T.D.) would show their stay on 14.04.2004 and 15.04.2004. But the appellants failed to take steps to cause production of records from T.T.D. to prove that on the date of alleged Ex.A2 promissory note, the alleged borrower was at Tirumala Tirupati for performing Darsan in the temple, no steps are taken by the appellants to send the Ex.A1 and Ex.A2 to the hand writing expert, except the formal denial of the defendants in the written statement. As state supra, the appellants simply pleaded in the written statement itself that Ex.A1 and Ex.A2 are the forged and fabricated pronotes. The law is well settled that bare denial of 11 VGKRJ AS 755 of 2008

passing of consideration apparently does not appear to be any defense. Something, which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendants have to bring on record, such facts and circumstances upon consideration of which the Court may neither believe that the consideration did not exists or its non-existence was so probable that prudent man would under the circumstances of the case shall act upon the plea that it did not exist. There can be no straightjacket formula for the appreciation of oral evidence of the witnesses, the credibility of the witnesses is the paramount consideration for the Court. As stated supra, it is not the case of the appellants that they are having enimity with PW2 due to that enimity PW2 deposed falsehood against the defendants. The evidence of PW2 clearly establishes about the passing of consideration under Ex.A1 and Ex.A2 promissory notes and so also execution of Ex.A1 and Ex.A2 pronotes by Atluri Venkateswara Rao. To rebut the said evidence, the defendants did not adduce any cogent evidence. The appellants failed to discharge their burden to disprove the evidence of PW2, no cogent evidence is placed by the appellants to show that the suit pronotes are not supported by consideration and Ex.A1 and Ex.A2 are forged transactions. For the aforesaid reasons, I am of the considered view that the suit promissory notes Ex.A1 and Ex.A2 are true, valid and binding on the defendants and supported by consideration. Accordingly, point No.1 is answered.

21. Point No.2:

Whether the decree and judgment passed by the trial court needs any interference? If so, to what extent?

12 VGKRJ AS 755 of 2008

In view of my findings on point No.1, the trial Court is justified in decreeing the suit, therefore, there is no need to interfere with the finding given by the learned trial Judge. The point No.2 is answered accordingly.

22. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 07.07.2008, in O.S.No.455 of 2005 passed by the learned I Additional Senior Civil Judge, Kakinada. No order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Date: 12.08.2024 sj 13 VGKRJ AS 755 of 2008

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.755 OF 2008

Date: 12.08.2024

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