Telangana High Court
Edla Venkatrajam vs Dr. Pothula Yellesh on 19 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.50 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree, dated 21.11.2023, passed in A.S.No.76 of 2021 on the file
of the Court of Principal District Judge, Hanumakonda,
whereunder and whereby the judgment and decree, dated
28.11.2019, passed by the I Additional Senior Civil Judge,
Warangal, in O.S.No.423 of 2013, was confirmed.
2. The appellants are the defendants and the respondent is the
plaintiff in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed before the trial Court.
3. The facts of the case in brief, which led to filing of the
present Second Appeal, are that the plaintiff filed the above said
suit for recovery of money alleging that due to acquaintance with
him, the defendants, on 04.07.2010, borrowed a sum of
Rs.3,00,000/- for their family necessities and they executed joint
promissory note agreeing to repay the said amount together with
interest at 1 % per month in favour of the plaintiff. But, in spite of
repeated demands and legal notice, the defendants did not repay the
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said due amount and did not even respond to the said legal notice.
Hence, the suit.
4. The defendants filed a common written statement inter alia
contending that the suit promissory note is a fabricated one. The
defendants did not sign on the postal acknowledgment cards
pertaining to the said legal notice. They never had such necessity to
borrow such huge amount and there is no consideration for the
alleged promissory note. The alleged General Power of Attorney
Holder of the plaintiff i.e., Pothula Nuthan never had such locus
standi to represent the plaintiff and lend the money on the alleged
date of the promissory note and prayed to dismiss the suit with
costs.
5. On the basis of the above pleadings, the trial court framed
the following issues for trial:-
"(1) Whether the promissory note dated 04.07.2010 is true,
valid and binding on the defendants?
(2) Whether the suit promissory note is not supported by
consideration?
(3) Whether the plaintiff is entitled to the suit amount?
(4) To what relief?
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6. On behalf of the plaintiff, P.Ws.1 and 2 were examined and
Exs.A-1 to A-7 were marked. On behalf of the defendants, D.Ws.1
to 3 were examined, but no documentary evidence was adduced.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, vide judgment
dated 28.11.2019, observed that the evidence of D.Ws.1 to 3 goes
to show that that defendants evaded to repay the suit amount and
accordingly, decreed the suit.
8. On an appeal being filed, the first Appellate Court, being the
final fact-finding Court, re-appreciated the entire evidence and the
material available on record and observed that the plaintiff filed
Ex.A-7-GPA given to his son i.e., P.W-1 and therefore, P.W-1 had
authority to represent the plaintiff and to proceed with the case. It
further observed that the defendants borrowed the amount
mentioned in Ex.A-1-promissory note from the plaintiff and failed
to repay the same and accordingly, dismissed the appeal vide
judgment dated 21.11.2023.
9. Heard Sri S.Lakshmikanth, learned counsel for the
appellants and Sri Pasham Ravinder Reddy, learned counsel
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representing Sri N.Narayana, learned counsel on record for the
respondent. Perused the record.
10. Learned counsel for the appellants relied upon the decisions
of the Madurai Bench of Madras High Court in A.Thirumoorthy &
another Vs. S.Bastin 1, this Court's judgment in CRP.No.4339 of
2018, dated 18.02.2021, the decision of the Hon'ble Apex Court in
Mohinder Kaur Vs. Sant Paul Singh 2 and the decision of the
erstwhile High Court of Andhra Pradesh in Katta Nageswara Rao
and another Vs. Reddi Saraswath 3.
11. In A.Thirumoorhty's case (1st cited supra), there is a clear
interpolation and insertion of the number '4' in the year '2004' and
also corresponding alteration in the year in vernacular language.
12. In the present case, the only contention raised by the
defendants is that they are illiterate and they have no habit of
putting dates under signature. Therefore, the signatures on Ex.A-1
do not belong to the appellants herein. Thus, there is no alteration
or interpolation or insertion of any word or letter in the suit
2014 SCC Online Mad 10785
(2019) 9 SCC 358
(1992) 1 APLJ 60 (HC)
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promissory note. Furthermore, admittedly, the defendants have not
taken any steps for sending Ex.A-1 to Handwriting expert.
Therefore, the aforesaid judgment is not applicable to the facts of
the present case.
13. The facts of the case on hand are entirely different from the
facts of the case in Mohinder Kaur's case (2nd cited supra), hence,
the said judgment does not aid the appellants in any manner.
14. Further, there is no quarrel with regard to the ratio laid down
in Katta Nageswara Rao's case (3rd cited supra). It is apposite to
note that the first Appellate Court has framed four points for
consideration and answered the same duly considering the
evidence on record. Therefore, it is to be held that in the instant
case the first Appellate Court has scrupulously followed the ratio
laid down in Katta Nageswara Rao's case.
15. In the present case, GPA was given by the plaintiff to his
son-P.W-1. P.W-1 was present at the time of execution of the suit
promissory note and thus, he has personal knowledge about the suit
transaction. Therefore, P.W-1 is competent to give evidence.
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16. The facts of the case in the order dated 18.02.2021 passed by
this Court in Civil Revision Petition No.4339 of 2018 are distinct
to the present case. Therefore, the said order is not applicable to the
present case.
17. Having thoroughly gone through the aforesaid judgments of
various courts, this Court finds that the facts and circumstances of
the said decisions are entirely different with the facts and
circumstances of the case on hand. Therefore, the said decisions
are not applicable to the present case and no way helpful
to the appellants.
18. The trial Court in its judgment dated 28.11.2019 observed as
under:-
"The defendants did not take any steps regarding forgery
of promissory note and hence, adverse inference was
raised against the evidence of D.W.1. D.W.2 admitted his
signatures on Ex.A-5 and Ex.A-6 and he did not inform to
his parents about the said notice and hence, it shows that
the plaintiff issued legal notice and it was received by son
of the defendants and as the defendants did not issue reply
notice it shows that they were intending to evade
repayment of suit amount."
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19. The first Appellate Court in the impugned judgment
observed as under:-
"The defendants did not take any steps for sending Ex.A-1
to handwriting expert for comparison and opinion whether
the pronote was signed by defendants and whether the
date 04.07.2010 was put by them or not."
19.1. The first Appellate Court further observed as under:-
"In view of the consistent evidence of PWs.1 and 2 and
Ex A-1, the borrowing of amount by the defendants
from the plaintiffs is established clearly. This court
observed the admitted signatures of defendants in
written statement and vakalathnama and the signatures
on Ex.A-1 which were disputed by the defendants and
this court did not find any circumstance to say that the
signatures of Ex A-1 do not belong to defendants.
20. Thus, a perusal of the record discloses that both the trial
Court and the lower Appellate Court concurrently held that the
evidence on record clearly establishes that the defendants borrowed
the amount from the plaintiff, executed Ex.A-1-promissory note,
dated 04.07.2010, and failed to repay the same.
21. Learned counsel for appellant vehemently argued that the
trial Court decreed the suit without proper appreciation of the
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evidence and the first Appellate Court also committed an error in
confirming the judgment and decree passed by the trial Court.
22. However, learned counsel for appellant failed to raise any
substantial question of law to be decided by this Court in this
Second Appeal. In fact, all the grounds raised in this appeal are
factual in nature and do not qualify as the substantial questions of
law in terms of Section 100 C.P.C.
23. It is well settled principle by a catena of decisions of the
Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
24. Further, in Gurdev Kaur v. Kaki 4, the Apex Court held that
the High Court sitting in Second Appeal cannot examine the
evidence once again as a third trial Court and the power under
Section 100 C.P.C. is very limited and it can be exercised only
where a substantial question of law is raised and fell for
consideration.
(2007) 1 Supreme Court Cases 546
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25. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
Appellate Court, this Court finds no ground or reason warranting
interference with the said concurrent findings, under Section 100
C.P.C. Moreover, the grounds raised by the appellant are factual in
nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
26. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
27. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
19.02.2024
dr
