Y.Suryanarayana , Surayakanth vs Abbaiah
2023 Latest Caselaw 2456 Tel

     THE HON'BLE SMT. JUSTICE P.SREE SUDHA

           SECOND APPEAL No.1612 of 2004

JUDGMENT:

This appeal is filed aggrieved by the judgment of the

Appellate Court in A.S.No.24 of 2002 dated 19.01.2004, in

which the judgment passed by the trial Court in

O.S.No.300 of 1999, dated 28.02.2002, was confirmed.

2.    O.S.No.300    of      1999   was    filed     by    the

plaintiff/Y.Suryanarayana     against    the      defendants/

Abbaiah and Sulochana, wife of Abbaiah for recovery of

amount. Plaintiff stated that himself and defendants are

well acquainted with each other and out of the said

acquaintance, defendants approached him and requested

for hand loan of Rs.22,000/- and accordingly he advanced

the loan on 29.05.1997. After receiving the amount,

defendants jointly executed promissory note in favour of

the plaintiff on the same day and they have also promised

to repay the amount with interest @ 24% per annum, but

failed to repay the same. In-spite of several demands they

were postponing the payment till 14.05.1999 and finally

they refused to repay the amount. As such, he filed the SA.No1612of 2004

suit for recovery of the amount of Rs.32,560/- with

interest at the rate of 24% per annum.

3. In the written statement filed by Defendant No.1

and 2, they have admitted acquaintance with the plaintiff

but denied the other factors. They stated that they never

borrowed any amount and never executed any promissory

note in favour of the plaintiff. As such, there is no

occasion for plaintiff to demand the amount on

14.05.1999. They also stated that plaintiff is a

Government servant, he is running Sri Tirumala Sai

Finance and he has lent amount to defendant No.1 on two

occasions prior to 29.05.1997 and he has repaid the entire

amount on 28.05.1998 and after that date defendant No.1

is not due of any amount to the plaintiff. Plaintiff also lent

amount to one Boring Anjaiah of Mallaram village and

several other persons, as he is doing money lending

business without having license. Plaintiff used to write on

chits and give it to the parties and he never used to pass

any receipts for payments, but he used to account on

small chits and took the amount without passing any

receipt recording the payment. Defendant No.1 did not SA.No1612of 2004

borrow any amount after 28.12.1996 from the plaintiff

and he has repaid the said amount on 25.05.1998 and on

that day plaintiff gave a slip in token of Rs.27,260/-. In

the promissory note, the signatures of Defendant No.1 and

2 did not appear and it is a forged and scribed by the

plaintiff to set up a false claim. They sent it for hand

writing expert for comparison of the signature of

Defendant No.1 and thumb impression of Defendant No.2

and it is not a promissory note as it is not properly

stamped, as such it cannot be looked into.

4. Plaintiff examined himself as PW1 and got marked

Ex.A1. Defendant No.1 examined himself as DW1 and his

wife was examined as DW2 and got marked Ex.B1. Ex.A1

is the promissory note on Rs.100/- Non Judicial Stamp.

Ex.B1 is the acknowledgement slip dated 28.12.1997 for

Rs.27,260/- in the hand writing of plaintiff.

5. A Perusal of Ex.A1/promissory note shows that

Defendant Nos.1 and 2 borrowed Rs.22,000/- on

29.5.1997 from the plaintiff with interest at the rate of

24% per annum and it was signed by 1st defendant and

thumb impression of the 2nd defendant was affixed on it.

SA.No1612of 2004

Initially an objection was taken regarding validity of the

promissory note. An Interlocutory Application was also

filed to send Ex.A1 to the Revenue Divisional Officer for

impounding it with necessary stamp duty penalty. After

hearing both the parties, the trial Court held that Ex.A1

was scribed on Rs.100/- Non-Judicial stamp paper, as

such it does not require any stamp duty penalty and is

valid as it was not challenged, it attained finality. As such,

now this Court need not go into the details of the validity

of the promissory note. Ex.B1 is the acknowledgement slip

dated 28.12.1997 for Rs.27,260/- in the hand writing of

plaintiff and there are two dates on Ex.B1 i.e. 28.12.1997

on the top and in the bottom it was mentioned as

28.05.1998. The signature of the plaintiff was there and

the amount of Rs.27,260/- was also mentioned clearly

and the name of Abbanna Mallaram was mentioned on

Ex.B1. Plaintiff stated that he gave calculation of the

amount to be paid by the defendant as the defendant

stated that he would pay the amount on 28.05.1998.

SA.No1612of 2004

6. The main contention of the appellant herein is that

the appellate Court while answering the third point, it was

mentioned as follows:

As per evidence of defendants, D1 borrowed for Rs.20,000/- (Rupees Twenty thousand only) on 28-12-96 and repaid that amount with interest on 28-5-1998 under Ex.B1. Ex.B1 is a slip which is as follows:

                  28-12-1997               Abbanna
                  27,260/-                 Mallaram

(Twenty Seven thousands two hundred and sixty rupees only) Dt.28-5-1998 Sd/-

Surya Kanth.

Surya Kanth is plaintiff, Abbanna is the D1.

He argued that when defendant No.1 specifically

admitted that he repaid the amount, it gives a

presumption that he has taken the amount from the

plaintiff, but the trial Court and appellate Court observed

that plaintiff has not examined the scribe or attestor of the

promissory note and he failed to prove his promissory note

and as such, he is not entitled for recovery of suit claim

from the defendants and dismissed the suit.

7. Heard arguments of both sides. Perused the

evidence on record.

SA.No1612of 2004

8. Plaintiff stated that defendants borrowed an amount

of Rs.22,000/- on 29.5.1997 and jointly executed a

demand promissory note on stamp paper worth Rs.100/-

agreeing to pay the same with interest at the rate of 24%

per annum and when he demanded to pay Rs.32,560/-

with interest, they refused to pay the same and as such he

filed the suit for recovery of amount. He further stated

prior to this transaction he has also advanced loan on two

occasions to the defendants with a gap of one year to

those two loans. Prior to this transaction he also lent an

amount of Rs.22,000/- and odd to the defendants. He

admitted his writing and signature on Ex.B1. He further

explained that on Ex.B1, the date of document was

mentioned as 28.12.1997 and date of payment of amount

as 28.5.1998. He further admitted that the English writing

on Ex.A1 as LTI of Sulochana was written by him. During

the pendency of proceedings, Ex.A1 was sent to the hand

writing expert by duly taking signatures and thumb

impressions of D1 and D2, but the expert could not give

his opinion, as the said signature and thumb impressions

are not clear for comparison. When the defendants clearly

stated that Ex.A1 is a forged document, the burden shifts SA.No1612of 2004

upon them and it is for them to prove that the document

is a forged one. Atleast, they might have taken further

steps by sending the document to the expert again, but

they failed to do so.

9. Defendants in the written statement stated that

previously defendant No.1 has taken loan amount from

the plaintiff twice, but he has not taken loan from the

plaintiff after 28.12.1996. He further stated that he repaid

the amount taken by him prior to 28.12.1996. There is no

dispute regarding the averments between plaintiff and

defendants and it is also an admitted fact that defendant

No.1 borrowed hand loan from the plaintiff previously on

two occasions. When it is the case of the defendant No.1

that he has repaid the entire amount, and he failed to

prove that A1 is a forged document, plaintiff is entitled for

presumption under Section 118 of the Negotiable

Instruments Act. Initially, defendant No.1 stated that he

never obtained any loan and later stated that he has

obtained hand loan from the plaintiff twice on previous

occasions and repaid the said amount, but he has

disputed Ex.A1. The case of the plaintiff is that the SA.No1612of 2004

defendants have taken a hand loan of Rs.22,000/- on

29.05.1997 with interest at the rate of 24% per annum.

The appellate Court calculated the interest for the said

period and stated that the amount claimed by the plaintiff

is nearer to the calculation. The trial Court erred in

arriving to the conclusion that plaintiff failed to prove the

promissory note and could not appreciate Ex.B1

acknowledgement slip and dismissed the suit. The

Appellate Court without appreciating the facts properly

confirmed the judgment of trial Court.

Respondents/defendants did not turn up on 8.8.2023 and

also on 11.8.2023, as such it is treated that there are no

arguments on their behalf.

10. Considering the arguments of the appellant counsel

and the documents filed by him and also the admission of

the defendants, this Court finds that it is just and

reasonable to set aside the judgment of the Appellate

Court and to allow the second appeal.

11. In the result, Second Appeal is allowed by setting

aside the judgment of the First Appellate Court passed in

A.S.No.24 of 2002 dated 19.1.2004 as well as the SA.No1612of 2004

judgment of the trial Court passed in O.S.No.300 of 1999

dated 28.02.2002. Plaintiff is entitled for recovery of

Rs.32,560/- with interest at the rate of 12% per annum

from the date of filing the suit till the date of the decree

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

realization. No order as to costs.

Pending miscellaneous applications, if any, shall

stand closed.

_________________________ JUSTICE P.SREE SUDHA Date: 19.09.2023 BV