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2003 DIGILAW 161 (AP)

B. Veeraswamy v. P. Basavaiah

2003-01-30

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) HEARD Sri B. C. Reddy, representing Sri B. Seetharamaiah, counsel for the appellant-defendant and Sri A. Ananta Reddy, counsel representing the respondent. ( 2 ) THE unsuccessful defendant in both the Courts below is the appellant herein. The respondent-plaintiff instituted a suit in O. S. No. 379 of 1998 on the file of the Principal District Munsif, Khammam, for recovery of money of Rs. 10,757/-, which was decreed and aggrieved by the same, the defendant preferred an appeal in A. S. No. 5 of 1991 on the file of the District Judge, Khammam and the learned District Judge also had dismissed the appeal and aggrieved by the same the present second appeal is filed. Sri B. C. Reddy, the learned counsel representing the appellant-defendant had pointed out that ground 8 (2) of the grounds of appeal is the substantial question of law involved in the appeal. The learned counsel also, apart from, pointing out this question of law had submitted that the suit was decreed mainly on the strength of the admissions made relating to the execution of Ex. A. 1, the bond, which is not a negotiable instrument. But however, the courts below had appreciated the evidence as though the principles relating to the execution of negotiable instrument in appreciation of evidence relating to burden of proof can be extended even in a case of this nature and in the light of this background the factual aspects, involved in the matter, are to be appreciated. The learned counsel also had pointed that there is no dispute between the parties relating to the nature of document Ex. A. 1, which is a bond since it was treated so and the stamp duty penalty was also collected in this regard. ( 3 ) THE learned counsel further pointed that the evidence of D. W. 1 coupled with the evidence of the elders or mediators, D. W. 2 and D. W. 3, definitely will clearly establish that Ex. A. 1 was executed by the appellant-defendant in favour of respondent-plaintiff in relation to a disputed claim made by a stranger and subject to a future settlement of the dispute by village elders and hence, it cannot be said that Ex. A. 1 was executed by the appellant-defendant in favour of respondent-plaintiff in relation to a disputed claim made by a stranger and subject to a future settlement of the dispute by village elders and hence, it cannot be said that Ex. A. 1 is supported by consideration and in this view of the matter both the courts have totally erred in passing a decree on the strength of Ex. A. 1, especially in the light of the nature of evidence led in by the respondent-plaintiff. The learned counsel for the appellant-defendant, had also taken me through the relevant portions of the findings recorded and the learned counsel also relied upon decisions reported in DORAISAMI PADAYACHI V. VAITHILINGA PADAYACHI and M. G. GURUBASAPPA V. RUDRIAH. Per contra, Sri Ananta Reddy, learned counsel representing the respondent-plaintiff had submitted that the question raised by the counsel for the appellant cannot be said to be a question of law at all. Since on appreciation of all the facts and circumstances and the evidence led in by both the parties, both the Courts below had arrived at the conclusion that the appellant-defendant is liable to pay the amount and decreed the suit as prayed for. In the light of the findings recorded by both the Courts the present second appeal is liable to be dismissed. Heard both the counsel and also perused the oral and documentary evidence. ( 4 ) IT is pleaded in the plaint that the appellant-defendant borrowed an amount of Rs. 8,300/- on 17-9-1985 for his family necessities from the plaintiff-respondent and on the same day he executed a bond promising to repay the said amount with interest @12% p. a. on or before 1-6-1986 and in view of the fact that he failed to pay any amount towards the said loan, the respondent-plaintiff got issued a legal notice and even after the receipt of the same, he failed to pay the amount and hence, the suit was instituted. The appellant-defendant had resisted the suit by filing a written statement denying the allegations in general. He had admitted that he had executed a bond for Rs. 8,300/- as alleged, but had not received any consideration thereunder and hence, the said bond is devoid of consideration. It was also pleaded in the written statement that there was a transaction of the present appellant-defendant borrowing Rs. He had admitted that he had executed a bond for Rs. 8,300/- as alleged, but had not received any consideration thereunder and hence, the said bond is devoid of consideration. It was also pleaded in the written statement that there was a transaction of the present appellant-defendant borrowing Rs. 3,000/- from the father-in-law of the plaintiff abour ten years prior to the suit transaction and there was no dispute relating to the said amount and in relation there to, the present bond was executed without any consideration. In the trial Court the following issues were framed:"1. Whether the suit document is executed without consideration? 2. To what relief?"before the trial Court, on behalf of the respondent-plaintiff , P. Ws. 1 and 2 were examined and Exs. A. 1, A. 1 (a) and A. 2 were marked. On behalf of the appellant-defendant D. Ws. 1 to 3 were examined. It is not in dispute that Ex. A. 1 bond was executed by the appellant-defendant in favour of the respondent-plaintiff and the contents of Ex. A. 1 had been dealt with in detail by both the Courts below. This document was attested by two attestors and there is a scribe to this document also. ( 5 ) P. W. 1 has deposed that he had lent an amount of Rs. 8,300/- to the appellant-defendant in the presence of attestors and scribe. M. Venkaiah, who is the scribe of the document, had deposed in relation to Ex. A. 1 and there are certain contradictions regarding the place of execution and this aspect also had been discussed. However, in the light of the stand taken by the appellant-defendant, this may not alter the situation in any way. ( 6 ) THE appellant-defendant himself deposed as D. W. 1 that he executed Ex. A. 1 as per the advice of the panchayat elders and it was executed only for the interest payable to the father-in-law of the plaintiff, in relation to his prior borrowing. This witness also deposed that when panchayat was held, the elders advised him to execute a bond for Rs. 8,300/- and accordingly he executed Ex. A. 1. D. Ws. 2 and 3 deposed that no amount was paid in their presence under Ex. A. 1. On the strength of this material in the present second appeal the following substantial question of law was raised. "whether Ex. 8,300/- and accordingly he executed Ex. A. 1. D. Ws. 2 and 3 deposed that no amount was paid in their presence under Ex. A. 1. On the strength of this material in the present second appeal the following substantial question of law was raised. "whether Ex. A. 1 executed by the appellant-defendant in favour of the respondent-plaintiff in relation to a disputed claim made by a stranger and subject to a future settlement of the dispute by village elders can be said to be for consideration?" ( 7 ) IT is not in dispute that the document is only a bond and in fact the stamp duty penalty also was levied and collected. On this document while giving an exhibit mark the defence of the appellant is that non-passing of consideration under Ex. A. 1and the execution of Ex. A. 1 are not in dispute. The recitals in the bond also will go to show that the amount had been received. On the strength of the evidence of D. W. 1 and also the mediators, D. Ws. 2 and 3 it is now contended that Ex. A. 1 is not supported by consideration. In M. G. Gurubasappa s case (2 supra) it was held that the presumption under Section 118 of the Negotiable Instruments Act, 1881, arises only when there is an executed promissory note or a negotiable instrument and when the document executed is not a promissory note, such presumption will not arise. In Doraisami Padayachi s case (1 supra), it was held that a promise to pay whatever amount might be found due by an arbitrator on taking amounts, is not a promise to pay debt within the meaning of Section 25 of the Contract Act. There cannot be any controversy or dispute in relation to the prepositions of law enunciated in the decisions referred to supra. However, in the present case, the evidence of P. Ws. 1 and 2 is available on record and apart from it there are admissions made by D. W. 1 himself and the stand taken by him is that Ex. A. 1 is not supported by consideration. No doubt, the elders were examined as D. Ws. 2 and 3. However, in the present case, the evidence of P. Ws. 1 and 2 is available on record and apart from it there are admissions made by D. W. 1 himself and the stand taken by him is that Ex. A. 1 is not supported by consideration. No doubt, the elders were examined as D. Ws. 2 and 3. Both the Courts had appreciated both the oral and documentary evidence led in by the parties and had recorded the concurrent findings that the document in question is supported by valid consideration since the debt taken is said to be a renewal of prior payment of existing debt between the parties. Even if, a stand taken by the appellant as defendant, has to be accepted for a while, in the light of the recitals of Ex. A. 1, coupled with the evidence of P. W. 1 and P. W. 2 and admissions made by D. W. 1 and the nature of evidence of D. W. 2 and D. W. 3, it cannot be said that the findings of fact arrived at by both the Courts below are perverse or in any way erroneous. It is no doubt true that the evidence of D. W. 1 up to some extent supported the defence taken by the appellant-defendant. But however, this document was brought into existence definitely in relation to a past transaction or payment of amount and this is a finding of fact recorded by both the Courts below. ( 8 ) IN a decision reported in JAI SINGH V. SHAKUNTALA, it was held that the scrutiny of evidence in a second appeal is not totally prohibited but the power of scrutiny can only be had in very exceptional circumstances and on proper circumspection. In a decision reported in YADARAO DAJIBA SHRAWANE V. NANILAL HARAKEHAND SHAH at para 31, the Apex Court had observed as follows:-"from the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is well settled that when the judgment of the final Court of fact is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades the records are voluminious. The High Court as it appears from the judgment has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance. " ( 9 ) AS already observed, since the findings of fact recorded by both the Courts below cannot be said to be either perverse or by adopting any wrong or erroneous approach, I do not see any reason to interfere with such concurrent findings in relation to the liability of the appellant-defendant in the payment for which a decree was passed by both the Courts below. In view of the same I am of the considered opinion that the second appeal is devoid of merits and accordingly the same is dismissed. But in view of the peculiar facts and circumstances, this Court makes no order as to costs.