Telangana High Court

Myalamala Chamanthi vs Kudithi Madhavi on 21 October, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.919 of 2014

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 02.06.2014 in A.S.No.64 of 2010 on the file of Judge,

Family Court-Cum-Additional District Judge, Khammam, which is

arising out of the judgment and decree dated 28.06.2010, passed in

O.S.No.120 of 2007 on the file of Senior Civil Judge, Sathupally.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court.

3. The appellant is the defendant. The suit is filed for recovery

of money of Rs.2,48,600/- with future interest and costs;

Rs.1,50,000/- being the principal amount; Rs.98,300/- being the

interest thereon @ 24% p.a. and Rs.300/- being legal notice

charges on the basis of promissory note executed by the defendant

in favour of the plaintiff and to award costs of the suit. The case of

the plaintiff is that the defendant borrowed an amount of

Rs.1,50,000/- from the plaintiff for her family necessities on

20.03.2005 and executed demand promissory note agreeing to

GAC, J S.A.No.919 of 2014

repay with interest @ 24%. One V.Narasimha Reddy scribed the

pro-note and Sri G.Narasimha Reddy and K.Narasimha Reddy

acted as witnesses to the said pro-note. On oral demands for

repayment of amount, the defendant had issued a cheque for

Rs.68,600/- towards part payment and when the said cheque was

presented, it got dishonored. A legal notice was issued to the

defendant on 26.02.2007 under Section 138 of Negotiable

Instruments Act, 1881. The defendant gave a reply notice dated

29.03.2007. The plaintiff also filed a criminal case against the

defendant under Section 138 of the Negotiable Instruments Act,

1881 vide C.C.No.546 of 2007 on the file of Judicial Magistrate of

First Class and further, the suit is filed for realization of the amount

with costs and interest.

4. On the other hand, the defendant filed a detailed written

statement denying all the averments made in the plaint and

contended that plaintiff has no capacity to lend the amount to the

defendant. It is the specific contention that the father-in-law of the

plaintiff came to Peruvancha Village as illutum son-in-law and

there were no properties stood in his name or in the name of his

GAC, J S.A.No.919 of 2014

son and further the husband of the plaintiff was working as a sales

man in a Kirana shop and therefore, the plaintiff has no capacity to

lend him amount. Further, V.Narasimha Reddy, is the father of the

plaintiff and G.Narasimha Reddy, is the resident of the same

village and the defendant has no acquaintance with Sri

K.Narasimha Reddy and that the defendant is an educated person,

an employee and as such, there is no necessity to fill up the blanks

is the pro-note. It is the further case of the defendant that the

husband of the defendant used to borrow amount from the family

members of the husband of the plaintiff, who obtained pro-notes

from the defendant and her husband and they paid an amount

Rs.23,900/- from 03.11.2003 to 10.08.2004 towards interest.

Further, the accounts were finalized in the year, 2006 and fresh

pronotes were obtained for different amounts and the husband of

the defendant used to pay interest. It is also the contention of the

defendant that father-in-law of the plaintiff is a money lender by

profession and that the plaintiff has no license to carry on the

money lending business and no consideration was passed under the

pro-note dated 20.03.2005 and therefore, prayed to dismiss the suit.

GAC, J S.A.No.919 of 2014

5. Basing on the pleadings, the trial Court has framed the

following issues:-

"1. Whether the suit pronote is true, valid and genuine?

2. Whether the plaintiff is entitled for suit amount?

3. Whether the plaintiff has no capacity to lend the pronote amount?

4. To what relief?"

6. During the course of the trial, on behalf of the plaintiffs,

PWs.1, 3 and 4 were examined and Exs.A-1 and A-3 were marked

and on behalf of the defendants, DWs.1 and 2 were examined and

Exs,B-1 to B-3 were marked..

7. The trial Court after considering the entire oral and

documentary evidence on record, decreed the suit with costs for

Rs.2,48,600/- with interest @ 24% p.a. from the date of suit, till the

date of decree and thereafter @ 6% p.a. till the date of realization.

8. Being aggrieved by the judgment and decree of the trial

Court, the defendant preferred an appeal vide A.S.No.64 of 2010.

GAC, J S.A.No.919 of 2014

The appellate Court on hearing the rival parties framed the

following points for consideration:-

"1. Whether the defendant borrowed an amount of Rs.1,50,000/- on 20.03.2005 from the plaintiff and executed promissory note Ex.A-1 as pleaded?

2. Whether the plaintiff is entitled for recovery of amount as prayed for?

3. Whether the judgment and decree under appeal is not sustainable?

4. To what relief?"

9. Considering the entire material on record and also the

arguments of rival parties, the appellate Court dismissed the appeal

confirming the judgment and decree dated 28.06.2010 in

O.S.No.120 of 2007 on the file of Senior Civil Judge, Sathupally.

10. Being aggrieved by the judgment and decree of the 1st

appellate Court, the defendant preferred the present Second Appeal

raising the following substantial questions of law:-

"1. Whether the learned Appellate Court is justified in disposing of the appeal without formulating proper pints as contemplated under Order 41 Rule 19 CPC?

GAC, J S.A.No.919 of 2014

2. Whether the respondent/plaintiff has proved Ex.A-1 pro-note by examining the attesters as contemplated under Evidence Act?

3. Whether both the courts justified in accepting the evidence of PW-1 in the absence of any independent evidence other than PW-2 who is no other than her father?

4. Whether the learned Appellate Court is justified in passing a decree on the basis of suit pro-note Ex.A-1 even though alleged pro-note is for Rs.1,50,000/- and alleged cheque is only for Rs.68,600/- which is contrary to each other which clearly shows both the courts failed to appreciate the pleadings and evidence on record?"

11. On perusal of the substantial questions of law raised, it is

evident that they are all on the fact findings of the Courts below but

not on law. The substantial question of law raised by the appellant

is that the appellate Court has not formulated proper points, but on

perusal of the appellate Court judgment, it is evident that the 1st

appellate Court formulated the points for consideration and passed

reasonable order answering the points accordingly.

12. Second Appeal is of the year, 2014 and it underwent

numerous adjournments and still coming up for admission.

13. Heard the learned counsel for the appellant.

GAC, J S.A.No.919 of 2014

14. Learned counsel for the appellant relied on the judgment of

the Hon'ble Supreme Court reported in G.Vasu Vs. Syed Yaseen

Sifuddin Quadri1 wherein their Lordships held as follows:

"Applying the above principles to the facts of the case, it will be seen that initially the evidential burden lay on the defendant. In this case, the plaintiff admitted that no cash was lent as recited in the promissory note. The plaintiff recalled the defendant and suggested a new case that the promissory notes were executed in renewal of earlier notes. At all these stages, the presumption has to be applied under Section 118 but the defendant can rely on these facts and also on the circumstances that the plea of renewal of earlier promissory notes by virtue of the suit notes is contrary to the recitals in the suit pronotes, and that the same is not set out in the suit notice or in the plaint' nor was it suggested to the defendant before he was recalled. We are of the view that by relying on these pieces of direct and circumstantial evidence the defendant has successfully discharged the evidential burden initially lying on him by a preponderance of probabilities. From then on, the presumption under Section 118 'disappears' and becomes 'functus officio' and the 'evidential' burden' shifts to the plaintiff who has also the legal burden arising out of the pleading to prove consideration. On a consideration of the entire evidence we are of the view that the plaintiff has not discharged the 'legal burden'. He cannot at that stage once again rely on the presumption under Section 118 of the Negotiable Instruments Act. The flitting of the bat of presumption in the twilight is over and it has 'disappeared' in the 'sunshine of actual facts'."

15. Admittedly, in the present case, the scribe of the pro-note

was examined before the Court and the evidence of PWs.1, 3 and 4

disclose that the defendant borrowed the amount from the plaintiff

AIR 1987 AP 139

GAC, J S.A.No.919 of 2014

and after receiving consideration, the defendant executed pro-note.

Therefore, the burden is on the defendant to prove that the pro-note

has been executed by him with no consideration. As per the

presumption under Section 118 of N.I.Act, it will be seen that

initially the evidential burden lays on the defendant. The plaintiff

in this case has established his legal burden. Therefore, the above

judgment of Apex Court is no way helpful for the appellant to