Andhra Pradesh High Court - Amravati
A.Gopalappa vs C.Thimma Reddy on 18 September, 2024
APHC010358732002
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
MONDAY,THE NINETEENTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO
SECOND APPEAL NO: 393/2002
Between:
A.Gopalappa ...APPELLANT
AND
C. Thimma Reddy ...RESPONDENT
Counsel for the Appellant:
1. O MANOHER REDDY
Counsel for the Respondent:
1.
The Court made the following JUDGMENT:
1. This Second Appeal has been filed by the Appellant/Defendant against
the Decree and Judgment dated 06.03.2002, in A.S. No.73 of 1998 on the file
of III Additional District Judge (Fast Track Court), Anantapur (for short, 'the 1st
Appellate Court') confirming the decree and Judgment dated 25.03.1997, in
O.S. No.71 of 1992 on the file of Principal Subordinate Judge, Anantapur (for
short, 'the trial Court').
2. The Respondent is the Plaintiff, who filed the suit in O.S.No.71 of 1992
seeking recovery of Rs.34,375/-, the principal and interest, from the Defendant
based on the promissory note dated 08.03.1989.
3. It is expedient to refer to the parties as they are initially arrayed in the
suit to mitigate any potential confusion and better comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the
contentious issues between the parties inter se, may be delineated that the
Defendant borrowed Rs.25,000/- from Plaintiff on 08.03.1989 and executed
the suit promissory note, agreeing to repay the same with interest @ 18% per
annum and the interest claimed in the suit is only at 12% per annum.
Subsequently, Plaintiff demanded the Defendant to repay the same, but the
Defendant did not pay any amount to the plaintiff. The defendant is an
agriculturist and he is entitled to the benefits of the Act 4/38 but not for the
benefit of the Act 45/87.
5. The Defendant filed a written statement asserting that the plaintiff is an
utter stranger to the defendant and he denied the receipt of Rs.25,000/- and
execution of the suit pronote. He further asserts that the suit pronote is a
forged one.
6. Based on the above pleadings, the trial Court has framed the following
issues:
i. Whether the suit pronote is true, valid and binding on the defendant?
iii. To what relief?
7. During the trial, on behalf of the Plaintiff, P.Ws.1 and 2 were examined
and marked Ex.A.1. On the other hand, Defendant was examined as DW.1,
but no documents were marked.
8. After completing the trial and hearing the arguments of both sides, the
trial Court decreed the suit with costs of Rs.34,375/- together with subsequent
interest at 12% per annum from the date of suit till the date of realization on
the principal sum of Rs.25,000/-.
9. Aggrieved by the same, the Defendant filed an appeal in A.S. No.73 of
1998 on file of the 1st Appellate Court. On scrutiny of oral and documentary
evidence adduced on behalf of both sides, the 1st Appellate Court dismissed
the Appeal by its Judgment and Decree dated 06.03.2002. Assailing the
same, the Defendant preferred the present Second Appeal.
10. I have heard Sri O. Manohar Reddy, learned Senior Counsel
representing the Appellant/Defendant and no representation on behalf of the
Respondent/Plaintiff.
11. Based on the Appellant's contentions, the following substantial question
of law is involved in this Second Appeal:
Whether the Judgment and decree of the Lower Appellate Court is in
confirming with the provisions of Order 41, Rule 31 of CPC?
12. Before delving into the matter, since the Appeal is filed under Sec.100
CPC, this Court must see the scope of Section 100 of C.P.C.
13. In H.P.Pyarejan V. Dasappa (dead) by L.Rs. and others 1 , the
Hon'ble Supreme Court held that:
Under Section 100 of the Code (as amended in 1976), the
jurisdiction of the High Court to interfere with the judgments of
the courts below is confined to hearing on substantial questions
of law. Interference with the finding of fact by the High Court is
not warranted if it involves re-appreciation of evidence (see
Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC
713) and Kshitish Chandra Purkait v. Santosh Kumar
Purkait (1997) 5 SCC 438)......
14. Considerations in Section 100 of C.P.C. arise only when there is a
substantial question of law and not mere such questions of law or one based
on facts. However, it has to be borne in mind that in case of misapplication of
law and improper appreciation of evidence on record, particularly the
documentary evidence, it is the bounden duty of the High Court sitting in
second Appeal to consider such questions which are substantial in nature in
terms of law.
2006 (3) A.L.T. 41 (S.C.)
15. In the second Appeal, while exercising jurisdiction under Section 100 of
the C.P.C., this Court must confine itself to the substantial question of law
involved in the Appeal. This Court cannot re-appreciate the evidence and
interfere with the findings of the Courts below, where the Courts below
recorded the findings judicially by appreciating both oral and documentary
evidence. Further, a substantial question of law is the sine qua non for the
exercise of jurisdiction. This Court cannot substitute its own opinion unless the
findings of the Courts below are manifestly perverse and contrary to the
evidence on record.
16. To substantiate the Ex.A.1 promissory note transaction, the Plaintiff
himself examined as PW.1. Additionally, he examined PW.2 (M. Hanumantha
Reddy), the attestor of Ex.A1 promissory note. The defendant himself
examined as D.W.1.
17. The defendant contends that Ex.A1, the promissory note in question, is
a forgery one and asserts that no consideration was exchanged under it, nor
were any demands made on the defendant. The defendant further contends
that the burden is on the plaintiff to prove that the promissory note is not a
forgery. It is elicited in the cross-examination of P.W.1 that the suit
promissory note transaction held in his father-in-law's house at Somalapuram
Village and Hanumantha Reddy (P.W.2) and one Basireddy (scribe of Ex.A1)
were present and Hanumantha Reddy attested as a witness on Ex.A1.
P.W.2-M. Hanumantha Reddy, who is the attestor of Ex.A1 suit promissory
note, supported the suit transaction by deposing that in his presence suit
transaction took place and the defendant received the consideration amount.
18. A reading of the judgment of the trial Court indicates that except
denying the case of the plaintiff nothing was elicited in the cross-examination
of P.Ws.1 and 2 to disbelieve the plaintiff's case. The defendant as D.W.1,
claimed that no notice was served on him prior to the filing of the suit. The
defendant also stated that a prior suit filed by one Gopal Reddy, the transferee
of Ex.A1, which was dismissed after a contested hearing, with an appeal
currently pending. Despite making the contentions, the defendant failed to
produce any documents related to the previous suit or the trial court's
judgment in that matter.
19. The evidence of D.W.1 shows that he knows P.W.2, the attestor and
Basireddy, the scribe and there are no misunderstandings with P.W.1. The
Court finds it implausible that the plaintiff would forge the defendant's
signature given there are no apparent disputes between them. The trial Court
also observed after appreciation of the evidence of P.Ws.1 and 2 that P.W.1
had also transferred one promissory note in favour of one Gopal Reddy.
Simply because it is elicited in the cross-examination of P.W.1 with regard to
transfer of promissory note, it cannot be said that the suit promissory note was
created in connection with the transfer of earlier promissory note.
20. The trial court observed that since there were no disputes between the
defendant, plaintiff, and Basireddy, the scribe, the defendant's claim of forgery
regarding the suit promissory note could not be sustained. The trial court
appreciated the evidence of P.W.s 1 and 2 and concluded that the defendant
had executed Ex.A1 upon receiving the consideration amount. The 1st
Appellate Court also reviewed the evidence, noting that it compared the
defendant's signature on the Vakalat and Written Statement, both of which
were admitted by D.W.1 during cross-examination, with the signature on
Ex.A1. The Court concluded that the signature on Ex.A1 matched the
defendant's signature. The defendant had not sought to refer the matter to a
handwriting expert for comparison. Thus, the 1st Appellate Court, after
evaluating the evidence, confirmed that the defendant had indeed executed
Ex.A1 promissory note upon receiving the consideration.
21. In the grounds of appeal, it is contended that the 1st Appellate Court
acted inappropriately by taking on the role of a handwriting expert. However,
given that neither party chose to submit the disputed signatures for
comparison by a handwriting expert, as permitted under Section 73 of the
Indian Evidence Act, 1872, the 1st Appellate Court's decision to compare the
disputed signatures with the admitted ones cannot be deemed unjustified. The
court's comparison of the signatures, in the absence of expert testimony, was
a reasonable exercise of its adjudicatory functions.
22. The defendant has asserted in the Written Statement that he is an
agriculturist. It appears that the plaintiff has not seriously contested this claim
regarding the defendant's occupation.
23. As seen from the decree passed by the trial Court, it awarded interest at
12% per annum from the date of decree till the date of realization. This Court
finds force in the submission of the learned appellant that the trial Court has
failed to see the provisions of Section 34 of the CPC.
24. As indicated in the trial court's Judgment, interest was awarded at a rate
of 12% per annum, accruing from the date of the suit until the date of the
realization. Section 34 of the C.P.C. deals with the power of the Court to grant
interest. The section does not confer any power on the Court to grant interest
for the period prior to the filing of the suit. The grant of interest for that period
is to be governed by the terms of the contract between the parties.
25. The main part of sub-section (1) of Section 34 C.P.C. states that
interest is to be awarded at a reasonable rate during the period the suit was
pending in Court. For the period subsequent to the passing of the decree,
interest is to be awarded @ 6% per annum, and future interest at a higher rate
can be awarded if the proviso is attracted. The only question is the reasonable
interest rate for the period the suit was pending in the Court.
26. The rate at which interest can be awarded is at the Court's discretion,
which, of course, should be reasonable. The discretion shall be exercised
fairly, judiciously, and for reasons, not in an arbitrary or fanciful manner.
27. In ascertaining the interest rate, the Courts of Law can take judicial
notice of inflation and the fall in bank lending rate of interest. This Court views
that the trial Court should have considered the steep fall in the Bank Lending
interest rate from the date of suit till the date of decree. The transaction does
not appear to be commercial. The occupation of the defendant is shown to be
cultivation. The evidence on record does not indicate that the defendant is
entitled for the benefit of Acts 45 of 87 and 4 of 38. This Court views that if the
interest rate awarded from the date of suit until the date of decree is deemed
excessive, the Appellate Court has the authority to intervene. As such, this
Court is inclined to reduce the interest rate from 12% to 6% per annum from
the date of the decree till the date of realization.
28. The findings of the trial Court and the 1st Appellate Court affirming that
the Plaintiff successfully proved the execution of the suit promissory note by
the Defendant after receiving the consideration amount, are neither
unreasonable nor a result of misinterpretation of documents or misreading of
evidence, with the sole exception being the rate of interest awarded from the
date of the decree till the date of realization. Upon evaluating the material on
record, this Court concludes that the 1st Appellate Court adjudicated the
Plaintiff's suit by affirming all factual findings against the Defendant as
enumerated above. These findings were consistent with the pleadings,
evidence, and applicable legal provisions. This Court determines that the
conclusions reached by the 1st Appellate Court do not warrant interference,
except awarding the rate of interest as indicated above. The 1st Appellate
Court's judgment has to be modified concerning the rate of interest and the
rest of the Judgment stands affirmed. Consequently, the substantial question
of law raised is adjudicated in favour of the Appellant/Defendant and against
the Respondent/Plaintiff.
29. Accordingly, the Second Appeal is partly allowed by modifying the
decree and Judgment dated 06.03.2002 in A.S.No.73 of 1998 passed by the
learned III Additional District Judge (Fast Track Court), Anantapur concerning
the interest rate. The interest rate is revised from 12% per annum to a simple
rate of interest at 6% per annum on the principal amount of Rs.25,000/- from
the date of the decree until the date of realization. The rest of the trial Court
Judgment as upheld by the 1st appellate Court holds good. Both parties shall
bear their costs.
Miscellaneous pending applications, if any, shall stand closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 19.08.2024
MS
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
SECOND APPEAL NO.393 OF 2002
Date: 19.08.2024
MS
