Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 146 (AP)

Devireddy Mohan Rao v. Eluri Venkateswarlu

2002-02-04

DUBAGUNTA SUBRAHMANYAM

body2002
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THE facts leading to the filing of this revision petition are as follows: 1,the plaintiff filed a suit for recovery of rs. 31,091/- along with interest and costs. According to the averments in the plaint, the defendant borrowed a sum of rs. 17,000/- on 01-02-1994 from the plaintiff to meet his personal necessities and after receiving the said amount, the defendant executed a letter on the same day i. e. , 01-02-1994 in favour of the plaintiff, agreeing to repay the same within a period of 6 months along with interest at the rate of 24% per annum by way of collateral security. The other averments in the plaint are not necessary for the disposal of this revision petition. ( 2 ) THE defendant filed a written statement opposing the suit inter alia, pleading that the promissory note on the basis of which the plaintiff is claming the suit amount is inadmissible in evidence and cannot be relied upon. It was further pleaded that the suit promissory note was not properly stamped. ( 3 ) AFTER settlement of the issues, the trial court has taken up recording of the evidence in the suit. While the plaintiff was giving evidence as P. W. I the admission of the document, dated 01-02-1994 on the basis of which, the suit was filed was opposed by defendant. ( 4 ) THE trial Court passed an elaborate order on 5-12-2000 holding that the document, dated 1-2-1994 is a promissory note falling within Article 49 (b) of the indian Stamp Act, 1899 and it is neither a bond nor an agreement. ( 5 ) THEREUPON, the defendant filed a memo dated 8-2-2001 stating that as the document is inadmissible in evidence, the oral evidence of P. W. 1 which was recorded in part may be rejected since it relates to the proof of inadmissible document. On that memo, the trial Court passed an order on the same day i. e. , 8/2/2001 holding that the plaintiff cannot lead oral evidence relating to the original cause of action or original transaction in view of the absence of necessary pleadings in that direction in the plaint. The trial Court, therefore, stated in the order that the memo is allowed. ( 6 ) THE defendant filed another memo, dated 7-6-2001. The trial Court, therefore, stated in the order that the memo is allowed. ( 6 ) THE defendant filed another memo, dated 7-6-2001. In that memo, the defendant stated that in view of the order on the memo, dated 3-4-2001, the chief- examination of P. W. 1 was rejected, as the suit promissory note is insufficiently stamped and is hit by Section 35 of the stamp Act, it is barred under Section 91 of the Evidence Act and the suit of the plaintiff is liable to be dismissed. On this memo, the trial Court passed an order, dated 27-6-2001 holding that the plaintiff is barred from adducing any evidence in respect of the suit pronote or the transaction contained in the pronote, but however, held that the plaintiff is not barred from adducing evidence on his behalf on the admissions made by the defendant. The trial Court allowed that memo partly and posted the suit for further evidence of the plaintiff to 4-7-2001. The defendant filed this revision petition questioning the above order of the trial court. ( 7 ) IT is stated by the learned Counsel for the petitioner that no admissions were made by the defendant in the written statement and therefore, the order of the trial Court passed on 27-6-2001 is liable to be set aside. ( 8 ) THE trial Court has already held that the suit document is inadmissible in evidence. The learned Counsel for the petitioner relied upon a judgment of this court reported in B. Venkataiah v. V. Venkata ramatia Reddy. ( 9 ) FOLLOWING the judgment of a Full bench of the Andhra Pradesh High Court, reported in L. Sambasiva Rao v. T. Balakotaiah a learned Single Judge of this Court in the above decision held as follows: (1) A suit could be laid to recover the amount due either on the basis of original cause of action or contract embodied in the negotiable instrument; (2) If the borrowing and execution of the promissory note from part of an integral transaction, there would be no separate and independent existence to original cause of action and it gets merged in the contract embodied in the negotiable instrument as there was accord and satisfaction of the debt. The right to recover rests only on the instrument itself; (3) The negotiable instrument must contain all the terms of the contract. The right to recover rests only on the instrument itself; (3) The negotiable instrument must contain all the terms of the contract. In such an event if it is insufficiently stamped it becomes inadmissible under Section 35 of the Stamp Act and the terms thereof cannot be proved as being hit by Section 91 of the Evidence act. The suit must fail; (4) On the other hand, if there is a borrowing in the first instance and later on a negotiable instrument is executed as discharge of the borrowing or as a collateral security though the document becomes inadmissible for variety of reasons, the original cause of action subsists and suit could be maintained on that basis. (5) But in each case there must exist independent original cause of action and the execution of the negotiable instrument. It must expressly and specifically pleaded and proved by adduction of evidence. Each case must be considered on its own facts". ( 10 ) THE principles of law laid down in the above decision have no relevance at this stage. As per the facts of that case, this court made the above said observations in an appeal filed against the judgment and decree. In the present case, the suit is still pending. It is the duty of the trial Court to permit both the parties to adduce evidence on the issues already settled by the Court. The practice of permitting the parties to file memos and then dispose of the suit either this way or that way is to be deprecated. Without recording the evidence on the issues already settled and without giving any findings on the issues already settled, the Civil Court is not expected to dispose of the suit finally either way on the basis of the memos filed by any of the parties to the suit. I therefore do not like to interfere with the impugned order. ( 11 ) WITHOUT keeping in mind any of the observations made by it in its order dated 27-6-2001, the trial Court is directed to record the evidence of both the parties and then give findings on the issues already settled by it keeping in view the position of law applicable to the facts of the case including the principles of law laid down by this Court in the decision supra-1. The trial court is directed to dispose of the suit as expeditiously as possible on merits. With the above observations, without giving any finding on merits of any of the contentions advanced by either of the parties, I am disposing of this revision. ( 12 ) IN the result, the revision petition is disposed of as stated supra. No costs.