Ch. Ramakrishnaiah vs P. Prakash Rao
2022 Latest Caselaw 2430 Tel

             HON'BLE SMT. JUSTICE P.SREE SUDHA

                SECOND APPEAL No.181 of 2021

                         JUDGMENT

1. This appeal is directed against the judgment and decree

dated 24.03.2021 in A.S.No.9 of 2011 on the file of the learned

I Additional District Judge, Mahabubnagar, allowing the appeal

filed by the appellant-defendant against the judgment and

decree dated 01.12.2010 passed in O.S.No.48 of 2009 on the file

of the I Additional Senior Civil Judge, Mahabubnagar. The

appellant herein raised the following substantial questions of

law.

a) Whether a suit for recovery of money from the defendant basing on the promissory note together with interest and costs.

b) Whether a suit for recovery of money can be decreed where the limitation for filing the same is expired on the ground that the document has not specified the time for completing the transaction.

c) Whether the suit for recovery of money can be decreed where the plaintiff fails to prove the contents of the agreement.

2. The suit O.S.No.48 of 2009 was filed by

Ch.Ramakrishnaiah-plaintiff for recovery of Rs.3.45,000/- from

the defendant-P.Prakash Rao basing on the promissory note

with interest @ 18% per annum from the date of suit till the

date of decree. The case of the plaintiff in nutshell is that he is

well acquainted with the defendant, out of which the defendant

approached him on 31.05.2007 for a hand loan of

Rs.2,50,000/- to meet his legal family necessities. At his request

the plaintiff paid a sum of Rs.2,50,000/- to the defendant on

the same day under a promissory note executed by the

defendant at Badepally to repay the same with interest @ 2%

per month. The plaintiff demanded the defendant to repay the

amount several times and when the defendant failed to repay

the same he orally demanded the defendant on 20.11.2007 and

got issued a legal notice on 05.12.2007 on which the defendant

requested the plaintiff on 20.12.2007 to give one more year for

repayment. Again the defendant did not pay the amount even

after the lapse of one year i.e., 25.12.2008 and as such he filed

the suit seeking recovery of the amount along with interest @

18% per annum from the date of suit till the date of realisation.

3. In the written statement filed by the defendant he denied

all the material allegations and further stated that plaintiff

created the cause of action with a forged document only to

harass him and that he never made any oral request and never

obtained any loan from him. He also stated that the plaintiff is

running financial business under the name and style of

M/s.Bhagyasree Chit Fund, Jadcherla, Mahabubnagar. The

defendant became a chit member in the year 2003 for

Rs.1,00,000/- with chit series number BSL-B4 Ticket No.23 and

he was paying Rs.4,000/- per month regularly and after

completing the chit the plaintiff failed to pay the chit amount till

today. He would further state that he also became member of

another chit conducted by the plaintiff for a sum of Rs.50,000/-

with chit series number BSC-B6 Ticket No.1 and he was paying

Rs.2,000/- per month and that after completing the chit the

plaintiff has not paid the chit amount to him. Later, the

defendant came to know that the plaintiff closed the chit fund

business without his knowledge and thereafter he came to know

that the plaintiff is conducting Zero (0) chit business. Defendant

would further state that when the plaintiff is conducting the

money lending business he obtained loan of Rs.50,000/- in the

name of his son by hypothecating the tractor and trailer and

executed hire purchase agreement in favour of the plaintiff.

Though he paid the entire loan amount, the plaintiff did not

return the original RC alleging that he is in due of Rs.50,000/-.

As the plaintiff refused to return the original RC, he got issued a

legal notice dated 10.11.2005 and filed a complaint before the

District Consumer Forum, Mahabubnagar, in C.C.No.38 of

2006. Therein, the defendant filed I.A.No.135 of 2006 seeking to

produce the alleged promissory note and other necessary

documents. As the plaintiff failed to summon those records in

spite of the order of the Forum, it passed orders in favour of the

defendant. The defendant would further state that he never

executed the suit document and it was created by the plaintiff

with forged signature, and therefore, the suit is liable to be

dismissed.

4. The plaintiff himself examined as P.W.1 and the attestor

was examined as P.W.2 and marked Ex.A1 to A4 on his behalf.

The defendant himself examined as D.W.1 and marked Ex.B1

and B2 on his behalf. After considering the entire oral and

documentary evidence adduced by both the parties, the trial

Court decreed the suit in favour of the plaintiff for

Rs.3,45,000/- with costs. Aggrieved by the said judgment and

decree the defendant preferred an appeal and the appellate

Court set aside the judgment and decree of the trial Court by

allowing the appeal. Aggrieved by the judgment and decree of

the appellate Court, the plaintiff in the suit preferred this

Second Appeal.

5. For the sake of convenience, the parties hereinafter are

referred to as arrayed in the suit.

6. Heard the learned counsel appearing for the appellant

and the learned counsel appearing for the respondent.

7. The trial Court in its judgment observed that it is a settled

law that the burden of proof lies on the plaintiff. The plaintiff

examined the attestor and the trial Court did not find any

reason to disbelieve the testimony of P.W.2 and it also raised

presumption under Section 118 of the Negotiable Instruments

Act, 1881 and further held that Exs.B1 and B2 filed by the

defendant are no way concerned with the suit transaction. As

per the plaintiff's version defendant brought the scribe to draft

the pronote and as such it is not possible to examine the scribe

as a witness and that the plaintiff proved his case and

accordingly decreed the suit.

8. The appellate Court disbelieved the version of P.W.2 on

the ground that suit promissory note does not contain the name

and particulars of the attestors. Though P.W.2 claims to be an

attestor of the suit promissory note, it cannot be relied upon

when the very execution of the promissory note is denied by the

defendant. The appellate Court also observed that I.A.No.299 of

2012 was filed by the defendant seeking to send Ex.A1 to the

FSL, but it was dismissed. Aggrieved by the same the defendant

filed C.R.P.No.3404 of 2013 and the same was dismissed on

02.08.2013 and restored to file on 27.09.2013 and interim stay

was granted on 24.10.2013. In view of the decision of the

Supreme Court in ASIAN RESURFACING OF ROAD AGENCY

V/s. CENTRAL BUREAU OF INVESTIGATION1 holding to the

effect that after lapse of six months period from the date of the

interim order, the stay deemed to have vacated as there are no

orders to extend the stay. The appellate Court further observed

that the signature of the attestor in Ex.A1 is not tallying at least

on material characteristics. Though P.W.2 stated that the

plaintiff is doing finance business, he could not say the name of

auto finance business and thus there is some force in the

argument of the learned counsel for the defendant that P.W.2 is

a planted witness. The appellate Court also observed that the

interest @ 2% per month is exorbitant and excessive. Though

promissory note is not a compulsorily attestable document,

when the very execution of it is denied, duty caste upon the

plaintiff to prove the promissory note. The appellate Court

further held that the Consumer Forum case filed by the son of

2018 (16) SCC 340

the defendant was disposed off on 18.01.2007. According to the

plaintiff, he lend Rs.2,50,000/- to the appellant herein on

31.05.2007 i.e., within four months after disposal of Consumer

Forum case and it is contrary to the common course of human

conduct. No prudent person would lend money to a person with

whom he had strained relations. It was also observed that the

plaintiff gave loan of Rs.50,000/- to the son of the defendant

only on hypothecation of a tractor and a trailer, and therefore it

cannot be believed that the plaintiff gave a hand loan of

Rs.2,50,000/- without any security. It was also observed that it

was not elicited from D.W.1 whether relations between him and

his son were strained, therefore it can be presumed that the

defendant and his son were on good terms hence no prudent

person would dare to enter into a transaction within a short

period when an allegation was made against him by the son of

the person who approached him for loan. As such there is truth

in the contention of the defendant that the suit promissory note

is created subsequent to the disposal of the consumer case filed

by the son of the defendant only with an intention to trouble

him and accordingly allowed the appeal by setting aside the

judgment of the trial Court.

9. P.W.1 in his cross-examination deposed that he was doing

business in the name of M/s. Bhagyasree Auto Finance. He was

doing the said business on hypothecation of the vehicles from

2001 onwards. He did chit fund business up to 2003. He was

running chit fund business in the name of M/s. Bhagyasree

Chit Fund. Both Bhagyasree Chit Fund and Bhagyasree Auto

Finance were under one registration. But he did not run the chit

business after 2003 and that he is an income-tax assessee and

paying income-tax from 1980. Prior to 2001 he did kirana

business in the name of M/s.Chepatti Ramakrishnaiah General

Stores. He also admitted that he did chit business without

registration i.e., Zero (0) chits registration. He admitted that the

defendant was a member of chit business in the chit worth

Rs.1,00,000/- and he is also a member in another chit worth

Rs.50,000/- and the chits ran up to 2006. Defendant made

total payment towards the said two chits. He also admitted that

the son of the defendant obtained a loan of Rs.50,000/- from

him and C.C.No.38 of 2006 filed by the son of the defendant for

not giving clearance certificate and he returned the said

certificate only after passing of the orders by the Consumer

Forum. He would further depose that when the defendant was

questioned regarding the scribe of the promissory note, he

deposed that 'defendant brought it already written'. He further

deposed that plaintiff got issued a legal notice in which he

demanded for repayment of Rs.2,50,000/- in first part but in

the last part the amount was typed as Rs.50,000/- and the

plaintiff explained it as typographical error.

10. Learned counsel for the defendant in his written

arguments would mainly contend that P.W.1 in the cross-

examination clearly replied that Ex.A1 was already written and

brought by the defendant, but P.W.2-attestor stated that

promissory note was executed at the house of the plaintiff.

P.W.2 stated that, he along with another person

Mr.Raghavender acted as attestors. From the perusal of the

promissory note it is noticed that only the signatures of

attestors are available on promissory note but their names and

other details were not mentioned anywhere. In the cross-

examination he stated that the second attestor was Mr.Raghu,

but do not know the father's name of Raghu and his house

location. He also stated that plaintiff was doing finance business

but he do not know the details of it. It was suggested to him

that plaintiff started new business in the name of Bhagysree

Auto Finance and P.W.2 was working as an employee and as

such he was deposing falsely at the instance of the plaintiff but

he denied the same.

11. D.W.1 mainly contend that he never executed any

promissory note and his signature was forged and as such he

filed I.A.No.135 of 2006 only to ascertain the age of the ink of

the signatures on the said promissory note and the said

writings. As there is lot of variation between and writing and

signature of the suit document, he specifically denied his

signature on the suit promissory note. I.A.No.495 of 2010 for

determination of age of the ink in the signature and he has not

sought for comparison of the signature.

12. The plaintiff filed suit for recovery of the amount basing

on the promissory note executed in his favour by the defendant

and whereas the defendant denied his signature on it and

contended that it is a forged document. No doubt, there were

financial transactions between the plaintiff and the defendant

from the past 10 years. Plaintiff was running chit business and

the defendant was a subscriber of two chits and his son also

obtained had loan of Rs.50,000/- on hypothecation. Defendant

stated that he paid the entire instalments. The plaintiff also

admitted with regard to payment of chit instalments by the

defendant in both the chits. It is for the plaintiff to establish his

case when he relied upon a document. Though he filed

promissory note alleged to have been executed by the defendant

and also examined P.W.2, the names of the attestors were not

mentioned in the promissory note and thus, it cannot be said

that P.W.2 was an attestor to the suit promissory. The appellate

Court clearly observed that when the very execution of the

document was disputed, it is for the plaintiff to prove his case

as the evidence of P.W.2 is not reliable. Plaintiff failed to

establish his case. The other circumstance is that plaintiff lend

an amount of Rs.50,000/- on hypothecation of a tractor and he

cannot lend Rs.2,50,000/- without any security is also

considered by the appellate Court and moreover the appellate

Court mainly observed that there was strained relations

between the son of the defendant and plaintiff and a case was

filed by the son of the defendant before the Forum against the

plaintiff and it was decided in favour of the son of the defendant

on 18.01.2007. When there were strained relations between the

plaintiff and the defendant how can the plaintiff lend an amount

of Rs.2,50,000/- within four months after disposal of the

Consumer Case and it is contrary to the conduct of a prudent

man. The appellate Court also observed that the signature of

P.W.2 on his deposition and on Ex.A1 promissory note were not

tallying on material characteristics. Though defendant took the

plea of forgery, he has not sought for the comparison of the

signature on Ex.A1 with the admitted signatures but he filed

I.A. to ascertain the age of the ink in the writings on promissory

note and on the signature and hence it was dismissed by the

trial Court. Though C.R.P. was preferred, the result of the same

is not mentioned anywhere.

13. Considering the oral and documentary evidence on

record, I do not find any reason to interfere with the judgment of

the appellate Court and it is a well reasoned order. Therefore,

the appeal is dismissed confirming the order of the first

appellate Court.

14. Pending miscellaneous petitions, if any, shall also stand

dismissed in the light of this final judgment.

____________________ P.SREE SUDHA, J.

8th JUNE, 2022.

PGS