Andhra Pradesh High Court - Amravati
T.Ramanaiah vs A.Raghuramaiah on 10 January, 2024
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Appeal Suit No.988 of 2004
Judgment:
The appeal is filed by the defendant in O.S.No.135 of 1997
on the file of Senior Civil Judge's Court, Gudur, Nellore District.
The respondent herein is the plaintiff in the said suit.
2. The parties will hereinafter be referred to as arrayed before the
trial Court.
3. The brief averments in the plaint are as follows:
On 21-9-1996, the defendant borrowed an amount of
Rs.1,21,000/- from the plaintiff for his family expenses and agreed to
repay the same with interest at 24% per annum and executed a demand
promissory note on the even date. In spite of repeated demands made
by the plaintiff and so also issuance of the registered legal notice by the
plaintiff dated 20-11-1997, the defendant failed to discharge the said
amount and got issued the reply with false allegations and that the
plaintiff is constrained to file the suit.
4. The brief averments in the written statement filed by the
defendant are as follows:
The plaintiff is doing business in lemons in the name and style of
SVS Industries and the defendant used to supply lemon fruits to the
plaintiff and after deducting the commission, the plaintiff has to pay
costs of the lemons supplied to him. In that connection, the defendant
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now and then used to take amount from the plaintiff and the plaintiff
obtained a promissory note and intended as a nominal one and never
acted upon. The defendant used to supply lemons in the name of his
sons under 3 different marks. The plaintiff is advancing money to the
defendant. The defendant altogether supplied lemons worth of
Rs.2,35,118/- under the said 3 different marks and the suit amount of
Rs.1,40,330/- has to be deducted from out of the said amount and
an amount of Rs.94,788/- is due to the defendant after deducting the
suit amount in the plaint.
5. The defendant also filed a counter claim. It is a fact that the
counter claim made by the defendant is dismissed, but the defendant
has not filed any appeal to challenge the order passed by the trial Court
in the counter claim. In fact, the suit is decreed with costs by the trial
Court and the appeal is filed by the defendant against the judgment and
decree passed by the trial Court.
6. After completion of the trial and hearing the arguments of both
sides, the trial Court decreed the suit with costs vide its judgment,
dated 04-9-2003, against which the present appeal is preferred by the
appellant/defendant in the suit questioning the judgment and decree
passed by the trial Court.
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7. Heard Sri Sk. Saidulu, learned counsel, representing
Sri G. Seshadri, learned counsel for the appellant/defendant and
Sri P. Ganga Rami Reddy, learned counsel for the respondent/plaintiff.
8. 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
plaintiff proved the execution of suit promissory note and the suit
promissory note is true, valid and binding on the defendant ?
2. Whether the judgment and decree passed by the trial
Court needs any interference ? and
3. To what extent ?
9. Point No.1:- Whether the trial Court is justified in holding that
the plaintiff proved the execution of suit promissory note and the suit
promissory note is true, valid and binding on the defendant ?
The claim of the plaintiff is based on Ex.A-1 promissory note said
to have been executed by the defendant, since there is a plea of forgery
and denial of execution of suit promissory note, the burden is on the
plaintiff to prove the execution of the suit promissory note and passing
of consideration amount under Ex.A-1.
10. The plaintiff was examined as P.W.1. He reiterated his stand
as per his respective pleading. P.W.1 testified about the borrowing of
amount from him by the defendant under Ex.A-1 promissory note and
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also agreeing to repay the same with interest at 24% per annum.
The evidence of P.W.1 clearly supports the case of plaintiff about the
execution of Ex.A-1 suit promissory note and also passing of
consideration under Ex.A-1 promissory note.
11. The evidence of P.W.1 goes to show that the entire transaction
was happened in the presence of scribe and attestors. It is trite beyond
the pale controversy that the burden rests on the plaintiff's shoulder to
prove the claim satisfactory. Where both parties have chosen to
advance their pleadings and adduce evidence, the concept of burden of
proof loses its paramount significance. The totality of inputs will have
to be reckoned by any prudent mind to decide whether the claim has
been established and the plaintiff is entitled to decree as prayed for.
12. The contention of plaintiff is that the defendant borrowed
an amount of Rs.1,21,000/- on 21-9-1996 from the plaintiff for his
family expenses and executed a demand promissory note Ex.A-1 in
favour of the plaintiff and the defendant failed to repay the suit debt
and that he issued a legal notice for which the defendant gave reply
notice with false allegations.
13. In order to prove his case, the plaintiff relied on Ex.A-1 original
demand promissory note, copy of legal notice Ex.A-2 and Ex.A-3 reply
notice. To support the case of the plaintiff, the plaintiff also examined
himself as P.W.1. His evidence goes to show about the borrowing of
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Rs.1,21,000/- by the defendant from the plaintiff and so also execution
of Ex.A-1 promissory note in favour of the plaintiff. It was suggested to
P.W.1 in cross-examination by the learned counsel for defendant that
the defendant executed a suit promissory note for Rs.1,21,000/- for
advances already taken and advances to be taken for a total sum of
Rs.1,21,000/-, the said suggestion is denied by P.W.1.
14. To discharge his liability, the plaintiff also examined one of
the attestors in Ex.A-1 promissory note as P.W.2. He supported and
corroborated the evidence of P.W.1. P.W.2 deposed in his evidence
about the borrowing of Rs.1,21,000/- by the defendant from the
plaintiff and so also execution of Ex.A-1 promissory note by the
defendant in favour of the plaintiff. It is not the case of the defendant
that he is having enmity with P.W.2, due to that he deposed falsehood
against the defendant. The evidence of P.Ws.1 and 2 coupled with
Ex.A-1 clearly goes to show about the borrowing of an amount of
Rs.1,21,000/- by the defendant and so also execution of Ex.A-1
promissory note on 21-9-1996 in favour of the plaintiff.
15. Per contra, the defendant himself examined as D.W.1. As per
his evidence, he used to take loan amount from the plaintiff for
supplying the lemon fruits and the plaintiff obtained his signature on
a white paper as a security to the said amount advanced and
subsequently it was fabricated to the suit promissory note by utilizing
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his signatures on a blank paper. As seen from Ex.A-1, it is a printed
promissory note, it is not a manuscript promissory note. To discharge
his burden, the defendant also relied on the evidence of D.Ws.2 to 4.
The evidence of D.Ws.2 to 4 is that the plaintiff is doing lemons business
in the name and style SVS Company. Whereas D.W.2 in his cross-
examination clearly admitted that he did not file any bills to show that
he has supplied lemon fruits to SVS Company. It is nowhere stated by
D.W.2 that the plaintiff is the proprietor of SVS Company. D.W.4 is one
of the clerk in Rajyalaxmi Goods who is transporting goods from the
farmers to the lemon merchants in Gudur. He deposed in his evidence
that the plaintiff is running lemon business under the name and style
of SVS Lemon Merchants, Gudur. In cross-examination, he admits that
he has not filed any document to show that the plaintiff is owner of the
said firm except Ex.B-6 wedding invitation extended to him at the time
of marriage of daughter of the plaintiff.
16. As stated supra, to discharge his liability, the plaintiff relied
on the evidence of P.Ws.1 and 2 and Ex.A-1 original promissory note.
The evidence of P.Ws.1 and 2 undoubtedly goes to show about the
borrowing of Rs.1,21,000/- by the defendant from the plaintiff and so
also execution of Ex.A-1 promissory note by the defendant in favour of
the plaintiff. Here, the signature on the promissory note Ex.A-1 is not
at all disputed by the defendant. Therefore, to rebut the evidence
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produced by the plaintiff, the burden shifts to the defendant to prove
under what circumstances he signed on Ex.A-1 promissory note by
producing cogent and reliable evidence. As stated supra, the evidence
of D.Ws.2 to 4 fails to establish that no consideration was passed under
Ex.A-1 promissory note. It is a fact that the counter claim is filed by
the defendant, the same is dismissed by the learned trial Judge and no
appeal or cross-objections are filed by the defendant against the said
finding given by the learned trial Judge.
17. In civil cases, rival contentions and rival evidence will have to
be considered, assessed, evaluated and weighed to conclude whether
the burden on the plaintiff has been discharged. In the case of
R. Puthunainar Alhithan v. P.H. Pandian1, the Apex Court held that:
"An inference from the proved facts must be so probable that if the
Court believes, from the proved facts, that the facts do exist, it must be
held that the fact has been proved. The inference of proof of that fact
could be drawn from the given objective, direct or circumstantial".
18. To prove the passing of consideration from the plaintiff, the
plaintiff made an attempt to examine one of the attestors in Ex.A-1
promissory note as P.W.2. P.W.2 testified about the passing of
consideration of Rs.1,21,000/- from the plaintiff to the defendant under
Ex.A-1 promissory note. It is not the case of the defendant that he is
1 (1996) 3 SCC 624
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having enmity with P.W.2, due to that he deposed falsehood against
him. I see no reason to disbelieve the evidence of P.W.2.
19. In the case of Pottem Subbarayudu v. Kothapalli Gangulu
Naidu2, the composite High Court of Andhra Pradesh held as follows:
"There can be no straightjacket formula for the appreciation of oral
evidence of the witnesses. The credibility of the witness is the
paramount consideration for the Court. After passing the three legal
tests viz, relevancy, admissibility, and competence of the witness, while
considering the credibility of the witness, the Court has to consider
various parameters so as to appreciate the oral evidence on the point
by testing the same on the touch stone of two important yardsticks viz.,
the probabilities and surrounding circumstances among various other
parameters. Even when no rebuttal is adduced by the adversary, the
ocular testimony of the witnesses examined on the side of the party on
whom the burden lies, cannot implicitly be relied upon without testing
the same with reference to the probabilities and surrounding
circumstances. The judgments of the Apex court in Govinda v. Champa
Bai (AIR 1965 SC 354) and Chaturbhuj Pande v. Collector, Raigarh,
would lend support to my above view".
20. In the case of Pratap Singh v. Rajinder Singh3, the Apex
Court held as follows:
"10. ... ... ... There is no presumption, either in this country or
anywhere else, that a witness, deposing on oath in the witness box, is
untruthful unless he is shown to be, indubitably, speaking the truth.
On the other hand, the ordinary presumption is that a witness deposing
solemnly on oath before a judicial tribunal is a witness of truth unless
the contrary is shown.
11. It is not required by our law of evidence that a witness must
be proved to be a perjurer before his evidence is discarded. It may be
2 2000 (5) ALT 759
3 AIR 1975 SC 1045
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enough if his evidence appears to be quite improbable or to spring from
such tainted or biased or dubious a source as to be unsafe to be acted
upon without corroboration from evidence other than that of the
witness himself. ... ... ..."
21. In civil cases, the preponderance of probabilities constitutes
a sufficient ground for decision if the facts and circumstances are such
that no reasonable man would draw a particular inference from them
or if the degree of probability in the case is such that as to include any
hypothesis besides the one to be proved than the party who relies on
a particular theory cannot be said to have been discharged the onus of
proof of establishing that theory. But if the evidence is strongly
prepondering in favour of any other two theories set up, the Court is
entitled to act on it.
22. The defendant received a legal notice under Ex.A-2 and he
sent a reply notice under Ex.A-3 admitting that during trade
transaction, the plaintiff advanced some amounts to him on different
dates and the plaintiff obtained the promissory note under Ex.A-1 for
Rs.1,21,000/- on 21-9-1996 towards the security for the amounts
advanced and to be advanced to him. This circumstance goes a long
way in showing that the suit debt is true and that the defendant had
chosen to come up with a belated and false theory both about the
borrowing of amount and execution of Ex.A-1 promissory note.
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23. The defendant is unable to show any reason or circumstance
to disbelieve the evidence of P.Ws.1 and 2 regarding the execution of
suit promissory note by the defendant and passing of consideration
under Ex.A-1. The evidence of P.Ws.1 and 2 is consistent, cogent with
regard to execution of suit promissory note and so also passing of
consideration under Ex.A-1. Though P.Ws.1 and 2 were subjected to
cross-examination, nothing was elicited from them to discredit their
evidence. The plaintiff has no reason to fabricate the suit promissory
note. As stated supra, it is not the case of the defendant that he is
having enmity with the plaintiff and so also P.W.2. In the present case,
the presumption has not been rebutted by the defendant even by the
preponderance of probabilities. Ex.A-1 promissory note shows that the
plaintiff lent the amount of Rs.1,21,000/- to the defendant under
Ex.A-1 promissory note.
24. The defendant failed to prove the contentions regarding
non-payment of consideration by leading cogent evidence.
The defendant was not successful in showing the improbability of the
consideration. The defence taken by the defendant is not
substantiated.
25. After careful consideration, the trial Court had adequately
appreciated the evidence, there is no reason for this Court to arrive at
a different conclusion than the one arrived at by the trial Court, I believe
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the findings arrived by the trial Court are correct and no justifiable
reasons have been shown by the appellant/defendant for arriving at
different conclusion. For the foregoing reasons, I do not find any
illegality in the said judgment and decree passed by the trial Court and
it requires no interference.
26. Point No.2:- Whether the judgment and decree passed by the
trial Court needs any interference ?
In view of my findings on point No.1, I do not find any illegality in
the judgment and decree passed by the trial Court and the judgment
and decree passed by the trail Court is perfectly sustainable under law
and it requires no interference.
27. Point No.3:- To what extent ?
In the result, the appeal suit is dismissed confirming the
judgment and decree dated 04-9-2003, in O.S.No.135 of 1997 passed
by the learned Senior Civil Judge, Gudur, Nellore District. Pending
applications, if any, shall stand closed. No costs.
_____________________________
V. GOPALA KRISHNA RAO, J.
10th January, 2024.
Ak
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HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
10th January, 2024.
(Ak)
