D.V.N. Murali vs G. Suresh Kumar
2023 Latest Caselaw 2205 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                   APPEAL SUIT No.86 of 2008

JUDGMENT:

This Appeal Suit is filed against the Judgment and Decree

dated 14.06.2007 in O.S.No.1429 of 2005 passed by the learned

IV-Additional Senior Civil Judge (Fast Track Court), Ranga

Reddy District.

2. Respondent/plaintiff filed a suit in O.S.No.1429 of 2005

for recovery of Rs.8,51,000/- due on promissory note dated

05.10.2002 with subsequent interest and costs. Plaintiff was

examined himself as P.W.1 and marked Exs.A1 to A5 and the

defendant was examined as D.W.1. Considering the oral and

documentary evidence of both sides, the trial Court decreed the

suit in favour of the plaintiff. Aggrieved by the said Judgment,

defendant in the suit preferred the present appeal suit.

3. The learned Counsel for the appellant/defendant mainly

contended that the trial Court erred in holding that

appellant/defendant has admitted his signature on Ex.A1

promissory note, though his case is that Ex.A1 does not contain

his signature. The respondent/plaintiff has failed to prove the

execution of Ex.A1 by the appellant and passing of

consideration, as he denied the execution of Ex.A1, the entire

burden shifts on the plaintiff, but the trial Court relied upon the

presumptions and assumptions under Section 118 of the N.I.Act

decreed the suit in favour of the respondent/plaintiff. He also

contended that the trial Court erred in awarding interest on

interest. Therefore, requested the Court to set aside the

Judgment of the trial Court.

4. Respondent/plaintiff filed the suit for recovery of amount

basing on the promissory note executed by the

appellant/defendant on 05.10.2002. In the written statement

filed by the appellant/defendant, he denied the execution of

promissory note and stated that he never borrowed

Rs.5,00,000/- from the respondent/plaintiff at any point of

time. Respondent/plaintiff, along with several other persons

who are inimical to him, ganged up and filed the suit against

him. He also stated that promissory note filed by the

respondent/plaintiff was a fabricated document. In fact,

respondent/plaintiff has no means to advance such huge

amount and he has no necessity to borrow the said amount and

no consideration was passed under Ex.A1 and thus requested

the Court dismiss the suit.

5. The respondent/plaintiff reiterated the contents of the

plaint in his evidence affidavit. He stated that due to

acquaintance and friendly relationship between him and

appellant/defendant, he lent a hand loan of Rs.5,00,000/- to

the appellant/defendant to meet his domestic and other

necessities and the appellant/defendant had also executed

promissory note on 05.10.2002 in the presence of one

P.V.S.S.N.Murthy and K.V.Ramalingacharyulu and agreed to

repay the same with interest @ 2% per month. Though he

requested the appellant/defendant to repay the said amount for

several times, he was evading the same. Hence, he issued legal

notice dated 23.09.2005 and it was received by the defendant

on 24.09.2005, but he did not give any reply and also not repaid

the said amount, as such he has no other option except to file

the suit for recovery of amount.

6. The respondent/plaintiff filed Ex.A1 promissory note,

Ex.A2 copy of the legal notice, Ex.A3 Certificate of posting dated

23.09.2005 and Exs.A4 and A5 postal acknowledgments before

the trial Court, but he was not Cross-examined by the learned

Counsel for the defendant, as such his evidence remains

unchallenged.

7. The appellant/defendant denied all the averments of the

plaint, but in the Cross-examination he stated that he was

under suspension from the service of State Government and he

also admitted that Ex.A1 bears his signature. He further

admitted that the address mentioned under Exs.A2, A3 and A5

pertains to him. He stated that he is having two children namely

Naveen and Krishnaveni. It was suggested to him that Ex.A5

was acknowledged by his son, but he denied it.

8. In spite of service of legal notice, appellant/defendant has

not given any reply, as such respondent/plaintiff filed the suit

for recovery of amount. The appellant/defendant did not

Cross-examine P.W.1 for the reasons best known to him and

hence the trial Court clearly held that the evidence of P.W.1 was

unchallenged. The appellant/defendant has also admitted his

signature on Ex.A1 and once he admits his signature, it is

presumed that it is supported by consideration as per the

presumptions under Section 118 of N.I.Act. The trial Court held

that unless it is rebutted by the defendant, presumptions can

be raised in favour of the plaintiff. P.W.1 filed the original

document of promissory note under Ex.A1 and defendant has

admitted his signature and he has not Cross-examined P.W.1,

but P.W.1 stated that he gave the said amount in the presence

of two witnesses whose names are mentioned in Ex.A1. The

appellant/defendant stated that he has no necessity to receive

amount from the plaintiff, but he himself admitted that he was

under suspension, as such his argument that he has no

necessity to receive the amount cannot be accepted. Though the

appellant/defendant stated that respondent/plaintiff has no

capacity to pay huge amount, he has not adduced any evidence.

9. No doubt, it is for the respondent/plaintiff to prove his

case and he cannot rely upon the weakness of the defendant. In

this case, respondent/plaintiff was examined as P.W.1 and he

also filed original promissory note along with legal notice and

postal receipts, but he was not Cross-examined by the

defendant, as such he has not examined any other witnesses.

Though the appellant/defendant claim that there is no passing

of consideration under the promissory note, he has not adduced

any rebuttal evidence and he has not even Cross-examined

P.W.1, as such it was rightly held by the trial Court that

promissory note was executed by the appellant/defendant and

it is supported by consideration. Therefore, it needs no

interference. The appellant/defendant further contended that

the trial Court erred in granting interest on interest. In fact, the

case of the respondent/plaintiff is that appellant/defendant

borrowed hand loan of Rs.5,00,000/-, as such he filed suit for

recovery of Rs.8,51,000/- with interest @ 12% per annum from

the date of the suit till decree and @ 6% per annum from the

date of decree till realization. Interest was granted from the date

of suit not from the date of execution of promissory note, as

such it cannot be said that trial Court granted interest on

interest. Therefore, the Judgment of the trial Court in granting

the interest is on proper lines.

10. In the result, the appeal suit is devoid of merits and is

dismissed confirming the Judgment of the trial Court dated

14.06.2007 in O.S.No.1429 of 2005. There shall be no order as

to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATE: 11.09.2023 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.86 of 2008

DATE: 11.09.2023

TRI