Andhra Pradesh High Court - Amravati
Rayadurgam Balasubramanyam vs C.Venkataramanaiah on 6 September, 2024
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
FRIDAY, THE SIXTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.1920 OF 1999
Between:
Rayadurgam Balasubramanyam,
S/o.Venkataiah, R/o.Taduku village,
Puttur Mandal, Chittoor District. ... Appellant
AND
C.Venkataramanaiah, S/o.Chengaiah,
Business, Balaji Bakery, APSRTC central bus station,
Tirupati, R/o.Padmavathi Nagar, near S.V.Cotton Mills,
Renigunta road, near Tirupati, Chittoor District ... Respondent
Counsel for the appellant:
1. Sri M.Vengaiah
2. Sri V.Jagapathi
Counsel for the respondent
1. O.Manohar Reddy
2. Sri P.Sravan Kumar
The Court made the following:
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AS 1920 of 1999
JUDGMENT:
-
This Appeal, under Section 96 of the Code of Civil Procedure [for
short 'the C.P.C.'], is filed by the Appellant/defendant challenging the
Decree and Judgment, dated 12.07.1999, in O.S. No.260 of 1993 passed
by the learned Additional Senior Civil Judge, Tirupati [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.1,19,600/- being the principal and interest due on a promissory note
dated 12.03.1991 executed by the defendant in favour of plaintiff in
renewal of earlier pronotes and simple mortgage deed 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.260 of 1993, are as
under:
The plaintiff is doing business in Bakery at A.P.S.R.T.C. Central
Bus Station and he is owning lands at Taduku to an extent of Ac.2.00
cents and he is a small farmer holding small extent of Ac.2.00 cents. He
desired to purchase the lands of defendant at Taduku village, where
defendant is having lands and also at several other places including
Taduku, Kasimkuppam etc., further, the defendant is doing business in
poultry at Puttur having two poultry forms and now he is also doing
contracts. In order to meet the poultry and other business commitments,
the defendant used to borrow amounts from time to time from the plaintiff,
since the defendant is an educated, reliable person and being a close
relative of the plaintiff, coupled with the fact that the defendant was ready
3 VGKRJ
AS 1920 of 1999
to sell his lands at Taduku to this plaintiff, out of confidence, plaintiff
having borrowed money from others, lend various amounts on various
dates to the defendant. The friends of plaintiff advised the plaintiff to
have a consolidated pronote for the prior debts, for which the defendant
agreed, because of close relationship and with an understanding to sell
the defendant's lands situated at Taduku, principal borrowed amounts
only were totalled without interest, which was arrived at Rs.92,000/-, for
which on 12.03.1991 itself a consolidated pronote was executed by the
defendant in favour of the plaintiff for Rs.92,000/- with 12% p.a. simple
interest. Subsequently, when the defendant and the plaintiff went to Sub-
Registrar's Office, Puttur to get the valuation particulars for registration,
the father-in-law of defendant came and objected for registration, since
he is having minor grand children and hence stamps could not be
purchased and at the evil advise of the father-in-law of defendant, the
defendant has shifted his residence from his native place from Taduku to
his father-in-law's village at Cherlopalli and inspite of several mediations,
the defendant evaded to respond. Inspite of receipt of legal notices, the
defendant failed to discharge the pronote debt.
5. The defendant filed a written statement by denying all the
averments mentioned in the plaint and further contended as under: -
The defendant neither executed the suit pronote nor received any
consideration and there was no prior debts due to the plaintiff by the
defendant, the suit pronote is a forged document and the defendant is
taking necessary steps to send the suit pronote to the hand writing expert
to prove his case and to disprove the case of the plaintiff. The defendant
has got another brother and there are civil cases also pending for the
family properties. This defendant and his brother have divided their
4 VGKRJ
AS 1920 of 1999
properties long back and this defendant got only Ac.2.00 cents towards
his share. This defendant never had any business dealings much less
poultry and borewell contracts. This defendant is a small farmer and he
has no other income except agriculture. This defendant neither agreed to
sell his properties to the plaintiff nor the defendant's father-in-law
objected for registration of the lands. This defendant never received any
notices before the suit notice and the suit pronote was brought into
existence by the plaintiff and his men for wrongful gain and prayed the
Court to dismiss the suit.
6. Based on the above pleadings, the trial Court framed the following
issues:
(i) Whether the suit pronote is true, valid and binding on the
defendant?
(ii) Whether the defendant is a small farmer? If so, whether
he is entitled to the benefits under Agricultural Debt
Relief Laws?
(iii) To what relief?
7. During the course of trial in the trial Court, on behalf of the Plaintiff,
PW1 to PW3 were examined and Ex.A1 and Ex.A15 were marked. On
behalf of the Defendant DW1 and DW2 were examined, but no
documentary evidence was adduced on behalf of defendant. Ex.C1 to
Ex.C24 were marked through Court proceedings.
8. 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
12.07.1999, against which the present appeal is preferred by the
5 VGKRJ
AS 1920 of 1999
appellant/defendant in the Suit questioning the Decree and Judgment
passed by the trial Court.
9. Heard Sri M.Vengaiah, learned counsel, representing Sri
V.Jagapathi, learned counsel for appellant and Sri P.Sravan Kumar,
learned counsel, representing Sri O.Manohar Reddy, learned senior
counsel for the respondent.
10. Learned counsel for appellant would contend that the judgment and
decree passed by the trial Court is contrary to law. The trial Court ought
to have held that the suit pronote is a forged and fabricated document
and there was no transaction at all and the trial Court ought to have seen
that the appellant has never executed any pronote in favour of plaintiff.
The appellant neither received any consideration from the plaintiff nor
renewed the earlier debts. He would further contend that the trial Court
ought to have believe the evidence of hand writing expert and should
have dismissed the suit and the trial Court ought to have relied upon
Ex.C1 and should have dismissed the suit. He would finally contend that
the trial Court grossly erred in decreeing the suit based on the forged
pronote.
11. Per contra, the learned counsel for respondent would contend that
on appreciation of the 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.
12. 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:
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AS 1920 of 1999
1. Whether Ex.A1 suit pronote is true, valid and binding
on the defendant?
2. Whether the trial Court is justified in decreeing the
suit?
13. Point No.1:
Whether Ex.A1 suit pronote is true, valid and
binding on the defendant?
The suit is based on Ex.A1 pronote said to have been executed by
the defendant. It is the specific case of the appellant/defendant that Ex.A1
is a forged document. Therefore, the initial burden is on the plaintiff to
prove that Ex.A1 pronote is a genuine document. The plaintiff himself is
examined as PW1. As per the evidence of PW1 on 01.10.1998, the
defendant borrowed an amount of Rs.10,000/- and executed a simple
mortgage deed and again the defendant borrowed a sum of Rs.82,000/-
under different promissory notes in the year 1990 and 1991 and after
consolidating all the amounts the principle amount was arrived at
Rs.92,000/- and for the aforesaid amounts the suit pronote was executed
in his favour. As per the evidence of the plaintiff, the defendant borrowed
a sum of Rs.16,000/- under a simple mortgage deed in the year 1987 and
he discharged that amount and took back the document in the year 1992
and Ex.A7 is the copy of mortgage deed dated 16.10.1987. He further
deposed that again on 13.08.1990 the defendant borrowed Rs.3,000/-
and executed Ex.A8 pronote and the defendant also borrowed an amount
of Rs.5,000/- under Ex.A9 pronote on 14.08.1990 and later he borrowed
an amount of Rs.12,000/- on 10.09.1990 under Ex.A10 pronote, likewise,
he also borrowed an amount of Rs.10,000/- on 08.10.1990 under Ex.A11
7 VGKRJ
AS 1920 of 1999
pronote and further the defendant also borrowed an amount of
Rs.17,000/- on 27.12.1990 under Ex.A12 pronote and the aforesaid
pronotes are subsequently cancelled. As per his evidence, subsequently
on 28.11.1990 the defendant also borrowed Rs.20,000/- under Ex.A13
and also borrowed an amount of Rs.15,000/- on 12.03.1991 under
Ex.A14 which pronotes are subsequently cancelled and for all the
aforesaid debts, Ex.A1 was executed by duly cancelling the previous
pronotes. Ex.A8 to Ex.A14 alleged pronotes goes to show that those
pronotes were cancelled on 12.03.1991 by the plaintiff itself and the
signature of the defendant has not been taken by the plaintiff and the
plaintiff also did not obtain the signatures of the attestors and scribe of
Ex.A1 dated 12.03.1991, on which date Ex.A8 to Ex.A14 pronotes were
cancelled and the plaintiff did not obtain the signatures of the attestors
and scribe at the cancellation endorsement on Ex.A8 to Ex.A14 on which
date the alleged attestors and scribe present at the time of execution of
Ex.A1. Furthermore, the signature of the defendant is also not obtained
by the plaintiff at the cancellation endorsement. As per the own
admissions of the plaintiff in his evidence, the defendant himself was
getting the pronotes written and handing over to him, but as seen from
Ex.A8 to Ex.A14 pronotes, those are printed pronotes and there are no
attestors and scribe to all Ex.A8 to Ex.A14 pronotes. Therefore, the self
statement of the plaintiff that the defendant himself was getting the
pronotes written and handing over to him is not at all correct.
14. Ex.A1 goes to show that no amount was paid by the plaintiff to the
defendant under Ex.A1 pronote, the details of amount borrowed on earlier
occasions is clearly narrated in the legal notice said to have been issued
by the plaintiff, the details of earlier borrowed amount includes the debt
borrowed under simple mortgage deed dated 01.10.1998 but the alleged
8 VGKRJ
AS 1920 of 1999
mortgage deed did not come into light. It is the self statement of the
plaintiff that at the request of the defendant, he waived the interest under
Ex.A8 to Ex.A14 pronotes. As stated supra, the alleged borrowing of
Rs.92,000/-, under various pronotes and alleged mortgage deed, itself is
disputed by the defendant. As seen from the material on record by
evidencing simple mortgage transaction of Rs.10,000/-, no document is
filed by the plaintiff which includes an amount of Rs.92,000/- for the
reasons best known to the plaintiff. Furthermore, it is the specific case of
the plaintiff, he lend an amount of Rs.16,000/- under a registered
mortgage deed dated 16.10.1987. As per the case of the plaintiff, the
appellant discharged the said amount under the registered mortgage
deed on 21.05.1992 and he obtained endorsement of cancellation on
mortgage deed, the same is not in dispute.
15. As per the evidence of attestor PW3, the amount shown in Ex.A7
was arrived at after adding all the amounts due under the previous
pronotes. It is not the case of the attestor that the scribe acknowledged
the other pronotes Ex.A8 to Ex.A14. Furthermore, by the date of Ex.A1,
the debt under Ex.A8 to Ex.A14 and registered mortgage is still subsisting.
As per the own case of the plaintiff to cancel the earlier debts, the
defendant executed a pronote on 12.03.1991 by which date the
registered mortgage debt is still subsisting. As per the own case of the
plaintiff, the registered mortgage debt was discharged by the defendant
on 21.05.1992 much subsequent to the alleged Ex.A1 pronote. PW2 is
the scribe of the Ex.A1 pronote. As per his evidence, he is the scribe of
Ex.A1 pronote and the amount mentioned in the suit pronote was not
given to the defendant and the previous pronotes were duly cancelled
and were retained by the plaintiff. In cross examination, he admits that
the defendant requested him to scribe the Ex.A1 pronote while he was in
9 VGKRJ
AS 1920 of 1999
his shop and he does not remember how many pronotes were scribed by
him and the plaintiff is also resident of his area and since his childhood he
is having acquaintance with the plaintiff and he is running a pan shop in
RTC bus stand, likewise, the plaintiff is also running a bakery in APSRTC
bus depot. PW3 is the one of the attestor in Ex.A1 alleged pronote. As
per his evidence, the amount shown in Ex.A1 was arrived at after adding
all the amounts due under the pronotes and in his presence, the
defendant signed on Ex.A1. As per the own case of the plaintiff the
amount shown in Ex.A1 pronote was arrived at after adding all the
amounts due under the previous pronotes and also simple mortgage
deed. As per the own admissions of PW3, he got acquaintance with the
plaintiff for the last 10 years. As noticed supra, PW3 is running fancy
store in APSRTC bus stand at Tirupati and he is having close
acquaintance with the plaintiff. As per the own admissions of PW2, he is
also running pan shop in APSRTC bus depot at Tirupati. As per the own
evidence of plaintiff, he is also running a bakery in APSRTC bus depot at
Tirupati and PW2 and PW3 are having close acquaintance with him. For
the reasons best known to the plaintiff, the plaintiff did not choose to
examine the another attestor in the alleged Ex.A1 pronote to prove that
Ex.A1 pronote is a genuine pronote. Admittedly, PW2 and PW3 are not
having any personal knowledge about Ex.A8 to Ex.A14 pronotes. As
stated supra, as per the own admissions of the plaintiff, he obtained
Ex.A1 pronote before PW2 and PW3 and another attestor by cancelling
the earlier pronotes Ex.A8 to Ex.A14, but the plaintiff to show his
bonafides did not choose to obtain the signatures of PW2 and PW3 or the
alleged other attestor at the cancellation endorsement on Ex.A8 to
Ex.A14 pronotes. Furthermore, as per the own case of the plaintiff, on the
date of Ex.A1 pronote, he cancelled Ex.A8 to Ex.A14 pronotes. As
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AS 1920 of 1999
noticed supra, the plaintiff also did not choose to obtain the signatures of
the defendant on the alleged cancellation endorsement on Ex.A8 to
Ex.A14 pronotes.
16. It is the specific case of the appellant that Ex.A1 is a forged
document and the appellant also taken pains to send the Ex.A1 pronote
to Pt. Ashok Kashyap, document expert at Agra and the said expert was
examined as DW2. As per the report of the expert, which is supported by
expert evidence DW2, Ex.A1 is a forged document and not signed by the
defendant. The reasons for giving that finding was also elaborately
mentioned in 5 pages of the report by the expert and the expert report
was marked as Ex.C1. As stated supra, at the request of the
appellant/defendant Ex.A1 was referred to Pt. Ashok Kashyap, document
expert, by the trial Court and the said expert was examined as DW2 and
the plaintiff did not choose to cross examine DW2. The evidence of DW2
is not challenged by the plaintiff and the evidence of DW2 was not at all
tested by way of cross examination.
17. The material on record reveals that the objections were filed by the
plaintiff by way of memo on the report of advocate commissioner by
saying that he has given questionnaire containing questions with regard
to cross examination to be put to DW2 expert by the advocate
commissioner, but the cross examination of DW2 is treated as nil by the
advocate commissioner. It is to be seen the advocate commissioner is
discharging the duties of the court at the time of recording the evidence of
DW2. Therefore, the advocate commissioner, who is discharging the duty
of the Court is not supposed to act as a defense advocate and he is also
not supposed to ask the questions to the witnesses in cross examination
by taking role of defense advocate in the absence of defense advocate.
11 VGKRJ
AS 1920 of 1999
The learned advocate commissioner rightly refused to obey the request of
the plaintiff.
18. As stated supra, the plaintiff did not choose to cross examine the
DW2 and the evidence of DW2 is not at all challenged by the plaintiff.
There is no evidence on record to show that the plaintiff filed a petition to
recall DW2 for cross examination. It is not the specific case of the plaintiff
that he filed a petition to recall DW2 for the purpose of cross examination,
the said petition was dismissed by trial Court.
19. Now coming to the evidence of DW1 i.e., the defendant, he never
borrowed any amount of Rs.82,000/- under the seven pronotes and he
did not execute Ex.A8 to Ex.A14 pronotes in favour of the plaintiff and he
did not execute Ex.A1 in lieu of Ex.A8 to Ex.A14 pronotes and the
signature contained in Ex.A1 is not that of him.
20. The learned counsel for respondent placed a case law of this Court
in C.R.P.No.67 of 2022, which was reported in 2022 LiveLaw AP 53, in
that decision this Court held as follows :
At this juncture, it is appropriate to refer to the orders passed by a
learned Judge in P. Padmanabhaiah v. G.Srinivasa Rao, AIR 2016
AP 118 (FB) the case of Dara Srinivasa Rao's case (referred (2)
supra). In P.Padmanabhaiah's case (referred (4) supra), the
defendant in O.S.No.324 of 2010 on the file of Court of the
Additional Senior Civil Judge, Kurnool filed an application under
Section 45 of the Indian Evidence Act to send the vakalat and
written statement containing his signatures along with the
promissory note (Ex.A.1) for handwriting expert for comparison of
his signatures on the vakalat and written statement with the
signatures said to be of him on Ex.A.1 and furnish a report with
12 VGKRJ
AS 1920 of 1999
opinion as to the genuineness or otherwise of the disputed
signatures on the said exhibits. The said application was allowed.
The learned Judge of this Court while interfering with the orders of
the Trial Court had extensively dealt with the matters with reference
to comparison of signatures on vakalat and written statement with
the disputed documents, inter alia, held as follows:-
"In the well considered view of this Court, the defendants
signatures on the Vakalat and the Written Statement cannot
be considered as signatures of comparable and assured
standard as according to the plaintiff even by the date of the
filing of the vakalat the defendant is clear in his mind about
his stand in regard to the denial of his signatures on the suit
promissory note and the endorsement thereon and as the
contention of the plaintiff that the defendant might have
designedly disguised his signatures on the Vakalat and the
Written Statement cannot be ruled out prima facie. The view
point being projected by the plaintiff that if the defendant is
called upon to furnish his signatures in open Court, he might
designedly disguise his signatures while making his
signatures on papers in open court is also having
considerable force and merit. Unless the defendant makes
available to the Court below any documents, with his
signatures, of authentic and reliable nature more or less of a
contemporaneous period, and unless such documents are in
turn made available to the expert along with the suit
promissory note, the expert will not be in a position to furnish
an assured opinion, in the well considered view of this Court.
In the case on hand, on hearing both sides, the learned trial Judge
passed an order by sending the Ex.A1 document with other connected
13 VGKRJ
AS 1920 of 1999
documents containing the signatures of the defendant to the expert DW2,
if the plaintiff is having any objection for sending the documents to the
expert he has to take objection before the trial Court at the time of
sending the document to the expert along with the other documents
contains the signatures of the defendant. It is not the case of the plaintiff
that the defendant purposefully changed his signature on Vakalat, written
statement and deposition. As per the evidence of the plaintiff, the
defendant borrowed the amount under registered mortgage deed in the
year 1987 and subsequently he repaid in the year 1992 and the said
registered mortgage deed was cancelled in the year 1992. Therefore,
what prevent the plaintiff to take steps to send the registered mortgage
deed or cancellation endorsement on the registered mortgage deed on
which documents the admitted signatures of the defendant are available
and the signatures of the defendant are also available in the sub registrar
office in the relevant records in respect of registered mortgage
transaction but the defendant failed to do so.
21. No doubt, the opinion of a hand writing expert is not at all
conclusive proof, it has to be read along with the other evidence available
on record. In the case on hand, as stated supra, the self statement of the
plaintiff is the defendant himself was getting the pronotes written and
handing over to him, but as seen from Ex.A8 to Ex.A14 pronotes those
are all printed pronotes and there are no attestors and scribe in Ex.A8 to
Ex.A14. As stated supra, the contention of the plaintiff is that to cancel
the earlier debts borrowed by the defendant, Ex.A1 pronote was obtained
on 12.03.1991 by which date the registered mortgage deed debt is in
subsisting and after one year the defendant discharged the registered
mortgage deed debt in the year 1992 and obtained cancellation of the
registered mortgage deed. As stated supra, at the cancellation
14 VGKRJ
AS 1920 of 1999
endorsement on Ex.A8 to Ex.A14 alleged pronotes, the signatures of
PW2 and PW3 are not yet obtained by the plaintiff. As per the own case
of the plaintiff all the Ex.A8 to Ex.A14 pronotes were cancelled on
12.03.1991 on which date he obtained Ex.A1 pronote dated 12.03.1991.
Admittedly, it is not the case of the PW2 and PW3 that they are
personally aware about Ex.A8 to Ex.A14 transactions. It is not the case of
the plaintiff that the consideration is passed under Ex.A1 pronote.
Admittedly, no consideration is passed under Ex.A1 pronote. As stated
supra, the Ex.A1 suit pronote is based on which the suit is filed under
which no consideration was passed. As per the case of the plaintiff to
discharge the amounts under Ex.A8 to Ex.A14 pronotes and another
mortgage deed debt, Ex.A1 pronote is executed. Ex.A8 to Ex.A14 goes to
show that all the said pronotes are printed pronotes, there are no
attestors and scribe. It is the specific case of plaintiff in the plaint itself
that the defendant himself was getting the pronotes written and handing
over to him and PW2 and PW3 are not having personal knowledge about
Ex.A8 to Ex.A14 pronotes. As noticed supra, it is the specific case of the
defendant that all the Ex.A8 to Ex.A14 pronotes are forged and not
supported by consideration. Therefore, it is the primary duty of the plaintiff
to prove that Ex.A8 to Ex.A14 are genuine pronotes. As stated supra, the
plaintiff failed to discharge his duty to prove the suit transaction. For the
aforesaid reasons, I am of the considered view that the suit pronote is not
true, valid and binding on the defendant, accordingly, point No.1 is
answered in favour of the appellant.
22. Point No.2:
Whether the trial Court is justified in decreeing the
suit?
15 VGKRJ
AS 1920 of 1999
In view of my findings on point No.1, the trial Court is not justified in
decreeing the suit, therefore the decree and judgment passed by the trial
Court is contrary to law and the same is liable to be set aside. The point
No.2 is answered accordingly.
23. In the result, the Appeal Suit is allowed by setting aside the decree
and Judgment dated 12.07.1999, in O.S.No.260 of 1993 passed by the
learned Additional Senior Civil Judge, Tirupati, consequently, the
O.S.No.260 of 1993, dated 12.07.1999, on the file of learned Additional
Senior Civil Judge, Tirupati is dismissed. Each party do bear their own
costs in the suit and appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal
shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 06.09.2024
sj
16 VGKRJ
AS 1920 of 1999
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.1920 OF 1999
Date: 06.09.2024
sj
