Telangana High Court
K Sambaiah vs V Sampath Kumar on 11 June, 2024
THE HON'BLE SRI JUSTICE K.SURENDER
APPEAL SUIT No.1337 of 2017
JUDGMENT:
1. This Appeal Suit is filed aggrieved by the judgment and decree
in O.S.No.503 of 2010 dated 31.07.2017 passed by the Principal
Senior Civil Judge, Warangal.
2. The appellant is the plaintiff and the respondent herein is the
defendant before the Court below. For the sake of convenience, the
parties herein after will be referred to as arrayed in the Original
Suit.
3. According to the plaintiff, he was a retired government
employee and after receipt of his retirement benefits, he lent an
amount of Rs.3,70,000/- to the defendant. Promissory note Ex.A1
was executed and repayment was promised at the rate of Rs.2% per
month. On the basis of the promissory note Ex.A1, suit was filed
seeking decree of Rs.6,35,396/- which includes interest component
for the period 10.08.2007 to 06.08.2010.
4. The defendant filed written statement stating that the version
given by the plaintiff is incorrect and there is no consideration that
was passed on under Ex.A1. However, prior to the said execution of
Ex.A1, the defendant executed two promissory notes Exs.B1 and B2
on 10.08.2005 for Rs.52,000/- and Rs.2.00 lakhs. Ex.A1 was
subsequently executed since there was a delay in repayment and
due to limitation. Having calculated the interest on the earlier
amount that was taken under Exs.B1 and B2, fresh promissory
note was executed under Ex.A1. Since no consideration was passed
under Ex.A1, suit has to be dismissed.
5. During the course of trial, the plaintiff examined P.Ws.1 and 2
and chief affidavits were filed. The defendant failed to cross-
examine the witnesses P.Ws.1 and 2. The defendant entered into
the witness box and examined himself as D.W.1 and marked
Exs.B1 and B2 promissory notes. The alleged calculation note
which was written by the plaintiff was also filed. However, the said
document was not marked during the course of trial.
6. Learned Senior Civil Judge concluded that no consideration
was passed on under Ex.A1. However, the version given by the
defendant that there was money transaction in respect of Exs.B1
and B2 and having gone through the calculation page that was filed
by the defendant, the same negatives the claim of P.W.1 under
Ex.A1. Since the amount covered under Ex.A1 is nothing but
calculation of principal and interest under Exs.B1 and B2, as such,
there is no consideration under Ex.A1. Accordingly, the suit was
dismissed.
7. Learned counsel appearing for the plaintiff would submit that
the learned trial Judge has grossly erred in dismissing the suit.
Counsel argued on the following grounds;
i) that there is a presumption under Section 118 of the
Negotiable Instruments Act and the defendant has failed to
discharge his burden;
ii) Exs.B1 and B2 were fabricated by D.W.1 and produced
during trial. The same cannot be made basis to infer that there is
no outstanding against Ex.A1;
iii) calculation sheet which was filed was not marked during
the course of trial, however, learned trial Judge placed reliance on
the said document, which is erroneous;
iv) The defendant has not cross-examined P.Ws.1 and 2 and
the version of the plaintiff stands undisputed.
8. On the other hand, learned Senior Counsel appearing on
behalf of the defendant would submit that the findings of the
learned trial Judge are convincing. Exs.B1 and B2 were brought on
record and the same were not disputed by the plaintiff. Since no
consideration was passed on under Ex.A1 as rightly found by the
trial Judge, appeal may be dismissed.
9. Learned counsel appearing for the plaintiff relied on the
judgment in the case of G.Vasu v. Syed Yaseen Sifuddin Quadri
(AIR 1987 AP 139), wherein the Hon'ble Full Bench of erstwhile
Andhra Pradesh High Court held that the defendant can discharge
his burden by preponderance of probabilities in a suit instituted on
promissory note.
10. In Amar Nath Agarwalla v. Dhillon Transport Agency
((2007) 4 Supreme Court Cases 306), the Hon'ble Supreme Court
held that documents which are not marked cannot be looked into.
11. In Muddasani Venkata Narsaiah (dead) through Legal
Representatives v. Muddasani Sarojana (2016) 12 Supreme Court
Cases 288), the Hon'ble Supreme Court on facts held at para 15
that party to the proceedings has to confront his version to the
witness. On failure to do so, it can be said that the version of the
party stands accepted by the other side.
12. The main basis for the dismissal of the suit is the finding of
the learned trial Court Judge that Ex.A1 was not executed on
account of any consideration. However, the said Ex.A1 promissory
note was executed after calculating the interest that accrued under
Exs.B1 and B2. Admittedly, the said calculation document was not
brought on record. In the absence of said calculation sheet, the trial
Court has committed an error in relying upon such document
which was filed by the defendant, but not brought on record to
consider it as part of evidence in the suit.
13. In the said circumstances, the findings of the learned trial
Court Judge on the basis of unmarked document, has to be set
aside. In view of the circumstances in the present case whereby
the witnesses P.Ws.1 and 2 were not cross-examined and also the
Court placing reliance on unmarked document, this Court deems it
appropriate to remand the matter back to the trial Court for
adjudicating afresh.
14. With the said direction, the Appeal Suit is disposed off. There
shall be no order as to costs. Consequently, miscellaneous
applications, if any, shall stand closed.
__________________
K.SURENDER, J
Date : 11.06.2024
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