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2009 DIGILAW 635 (KAR)

M. C. Suresh v. B. Srinivas Naik

2009-08-13

S.ABDUL NAZEER

body2009
Judgment :- Abdul Nazeer, J This appeal is directed against the judgment and decree in O.S. No. 8524/2001 dated 11.7.2007 on the file of the 30th Additional City Civil Judge, Bangalore City. The appellant was the first defendant, first respondent was the plaintiff and respondent Nos. 2 and 3 were the defendant Nos. 2 and 3 in the said suit. For the sake of convenience, the parties are referred to by their respective ranking before the Trial Court. 2. The plaintiff filed the aforesaid suit for recovery of a sum of Rs. 86,050/-together with Court costs, interest at the rate of 18% per annum from the date of the suit till its realisation. In the said suit, the plaintiff contends that defendant Nos. 1 and 2 approached him and requested for a loan of Rs. 1,00.000/-for construction of their house. Considering their plea, the plaintiff gave a loan of Rs. 50,000/-on 16.11.1998, out of his retiral benefits. In this connection, defendant Nos. 1 and 2 have jointly executed an on demand promissory note and a consideration receipt in favour of the plaintiff both dated 16.11.1998. It is further contended that at the time of borrowing, defendant Nos. 1 and 2 assured that they will return the loan amount within six months from the date of the said promissory note. The plaintiff further contends that though the construction of the house was completed long ago, defendant Nos. 1 and 2 failed to repay the said amount. Therefore, he sent a notice calling upon defendant Nos. 1 and 2 to return the said amount, which has been duly served on them on 17.10.2001. Since defendant Nos. 1 and 2 refused to pay the aforesaid amount, the plaintiff has filed the suit for the following reliefs: “To recover the principal amount of Rs. 50,000/-with contractual interest at 2% per month from 16.11.1998 to 12.11.2001, which comes to Rs. 35,900/-and notice charges of Rs. 150/-, in all Rs. 86,050/-. 3. After service of summons, the third defendant filed the written statement on 8.10.2002 contending that he is not aware of the alleged loan transaction between the plaintiff and defendant Nos. 1 and 2. It is further contended that since defendant Nos. 1 and 2 have jointly executed the said document, the plaintiff has no right to sue against him. 3. After service of summons, the third defendant filed the written statement on 8.10.2002 contending that he is not aware of the alleged loan transaction between the plaintiff and defendant Nos. 1 and 2. It is further contended that since defendant Nos. 1 and 2 have jointly executed the said document, the plaintiff has no right to sue against him. He has not borrowed any amount from the plaintiff nor is he a surety to the alleged transaction. He prayed for dismissal of the suit. 4. Defendant Nos. 1 and 2 did not file their written statement within the time granted by the Trial Court. 5. On the basis of the plaint and the written statement filed by defendant No. 3, the Court below posted the matter for framing of the issues on 8.10.2002. On 5.7.2003, the Court below framed the following issues: “1. Does the plaintiff prove the liability of the defendants to pay Rs. 50,000/-towards the principal as averred? 2. Is plaintiff entitled to the suit claim? 3. What relief?” 6. Defendant Nos.1 and 2 filed an application on 6.8.2003 seeking permission of the Court to file the written statement along with their written statement. The Trial Court allowed the application seeking permission to file the written statement on payment of cost of Rs. 250/-on 16.12.2005. The plaintiff has accepted the cost on 10.2.2006. 7. In their written statement filed on 6.8.2003, defendant Nos. 1 and 2 have admitted borrowing of a sum of Rs. 50,000/-from the plaintiff on 16.11.2008 and execution of the promissory note. However, they have contended that in addition to the promissory note, on insistence from the plaintiff, the second defendant issued a cheque for a sum of Rs. 50,000/-assuring the plaintiff that he would pay cash and take back the promissory note and the cheque. It is further contended that they have paid more than Rs. 22,000/-to the plaintiff in part payment of the loan amount. The plaintiff promised to return the cheque and the promissory note on payment of the full amount and defendant Nos. 1 and 2 agreed for the same. It is further contended that taking advantage of the aforesaid cheque, he filed C.C. No. 28691/2000 under the provisions of the Negotiable Instruments Act. Ultimately, the said case C.C. No. 28691/2000 was disposed of on 30.10.2001 as settled out of Court. The defendant Nos. 1 and 2 agreed for the same. It is further contended that taking advantage of the aforesaid cheque, he filed C.C. No. 28691/2000 under the provisions of the Negotiable Instruments Act. Ultimately, the said case C.C. No. 28691/2000 was disposed of on 30.10.2001 as settled out of Court. The defendant Nos. 1 and 2 paid back the amount of Rs. 50,000/-by way of a demand draft bearing No. 374444 dated 13.10.2001. It is contended that they have sent a reply to the notice sent by the plaintiff, which has been returned as plaintiff avoided to receive the same. They have sought for dismissal of the suit. 8. The plaintiff filed his affidavit of evidences as P.W1 on 19.1.2004. The documents Ex.P1 to Ex.P10 were marked in his evidence on 28.5.2004. The plaintiff (P.W1) was recalled and he was further examined in chief on 23.6.2006. Ex.P11 to Ex.P13 were marked in his evidence on that day. He was cross-examined on the same day by the Learned Counsel appearing for the first and second defendants. The first defendant has filed his affidavit of evidence as D.W1 on 16.11.2006 and documents Ex.D1 to Ex.D3 have been marked in his evidence. He was cross-examined by the plaintiff on the same day. 9. After considering the pleadings and the evidence of the parties, the Court below has decreed the suit in the following terms: “The suit of the plaintiff is decreed with cost against defendants 1 and 2 only. The defendants 1 and 2 are jointly and severally liable to pay a sum of Rs. 86,050/-(Rupees Eighty-Six Thousand Fifty only) to the plaintiff together with Court costs and current and future interest at 6% p.a.. on Rs. 50,000/-from the date of the suit till its realisation. Suit against defendant No. 3 is dismissed. Draw decree accordingly.” 10. As noticed above, the appeal is filed by the first defendant challenging the impugned judgment and decree. In this appeal, the appellant has filed two applications, Misc. Cvl. No. 14135/2009 and Misc. Cvl. No. 14673/2009 both under Order 41 Rule 27 of the Code of Civil Procedure seeking production of documents as additional evidence. 11. In the application-Misc. Cvl. No. 14135/2009, the appellant/first defendant has stated that himself and the second defendant filed joint written statement contending that they did not request the first respondent/plaintiff for a loan of Rs. 1 lakh. Cvl. No. 14673/2009 both under Order 41 Rule 27 of the Code of Civil Procedure seeking production of documents as additional evidence. 11. In the application-Misc. Cvl. No. 14135/2009, the appellant/first defendant has stated that himself and the second defendant filed joint written statement contending that they did not request the first respondent/plaintiff for a loan of Rs. 1 lakh. It was admitted by them that a sum of Rs. 50,000/-was borrowed from the first respondent and he took a promissory note and a cheque signed by the second respondent and the second respondent had promised to return the said amount Rs. 50,000/-subject to the first respondent returning both the promissory note and cheque and the first respondent should not present the cheque for encashment to Bank. It is further contended that in spite of the above understandings, the first respondent filed a criminal case under Section 138 of the Negotiable Instruments Act in C.C. No. 28691/2000 and that criminal case was ultimately settled on payment of Rs. 50,000/-by a demand draft. It is further contended that the settlement of the said criminal case was in full and final settlement of the entire claim of the first respondent and as such, the claim made by the first respondent in the suit is untenable. It is further contended that the first respondent, who got himself examined as P.W1 has stated in his evidence that for the settlement of the criminal case, he asked one Vinod Kumar to finance defendant No.2/second respondent. The first respondent knows Vinod Kumar since 20 years. Vinod Kumar filed O.S. No. 7631/2004 on the file of the Additional City Civil Judge (CCCH-14), Bangalore, for recovery of a sum of Rs. 86,000/-against the second defendant and his mother Kanthamma contending that he had advanced loan of Rs. 50,000/-to the said Kanthamma and the second defendant. It is further contended that the first respondent is in the habit of creating documents and filing vexatious and false suits and he has set up Vinod Kumar to file the said suit against the appellant and his mother on a fabricated promissory note. It is further contended that the said Vinod Kumar during his cross-examination in the said suit has failed to identify the appellant in the Court Hall. It is further contended that the said Vinod Kumar during his cross-examination in the said suit has failed to identify the appellant in the Court Hall. It is contended that in order to appreciate the evidence on record and to pass a proper judgment, the documents now sought to be produced as additional evidence are necessary as it would assist the Court to arrive at the truth and also in appreciating the evidence on record. 12. Even in Misc. Cvl. No. 14673/2009, similar plea has been raised by the appellant. Along with the said application, the appellant has sought to produce the original Pass Book of Kanthamma and a copy of the counter foil for having obtained a demand draft by Kanthamma for a sum of Rs. 50,000/-in favour of the first respondent. 13. The first respondent has filed objections to the first application denying the averments made therein. It is contended that C.C. No. 28691/2000 pertains to a loan of Rs. 50,000/-borrowed by the second defendant/second respondent which has nothing to do with the present case. They are two separate transactions. It is further stated that Vinod Kumar is a chronic diabetic patient, who used to take tablets at 1.00 P.M. everyday and immediately thereafter used to take food. Since he was subjected to cross-examination for a long time at 1.00 P.M. on that day, he was not in a proper frame of mind to identify the appellant who was present in the Court Hall. That is the reason why he could not identify the appellant as contended in paragraph 8 of the application-Misc. Cvl. No. 14135/2009. He has sought for dismissal of the applications. 14. Sri Nagabhushan, Learned Counsel appearing for the appellant would contend that defendant Nos.1 and 2 have executed a promissory note and a consideration receipt as contended in the plaint. However, on the same day, the second defendant issued a cheque dated 8.4.1999 for Rs. 50,000/-with a clear understanding that on payment of the amount in question, the cheque and the promissory note should be returned. However, the plaintiff filed a criminal case on the basis of the cheque and an amount of Rs. 50,000/-was paid in the said case in full and final settlement of the entire claim of the plaintiff. It is further argued that though defendant Nos. However, the plaintiff filed a criminal case on the basis of the cheque and an amount of Rs. 50,000/-was paid in the said case in full and final settlement of the entire claim of the plaintiff. It is further argued that though defendant Nos. 1 and 2 have taken up a specific stand that the claim has been discharged in full and final settlement of the entire dispute, the Court below has failed to frame an issue in this regard. It is further argued that the Court below without appreciating the evidence of the parties on record has decreed the suit. He has taken strong objection to the finding of the Court below at paragraph 13 of the judgment, wherein the Court below has recorded as under: “At the time of arguments, the Learned Counsel for the plaintiff submitted that apart from the payment of Rs. 50,000/-on 16.11.1998, plaintiff had paid another sum of Rs. 50,000/-to defendant No. 2 on 22.2.1999, for which defendant No. 2 had issued a cash receipt Ex.P11 and regarding which there was a criminal proceedings which is ended as settled out of Court and hence, both transactions i.e. the suit transaction dated 16.11.1998 and the cash receipt transaction dated 22.2.1999 are separate and distinct.” 15. The Learned Counsel further submits that the said finding is without a plea. It is further argued that in the counter to the application in Misc. Cvl. No. 14135/2009, the plaintiff/first respondent has admitted that he has the knowledge of filing of the suit by Vinod Kumar against the first defendant/appellant and his mother Kanthamma. In fact, the first respondent is instrumental in creating the said document and responsible for filing of the said case. Therefore, the present suit and the suit filed by Vinod Kumar should be clubbed together and a common trial has to be conducted. In this connection, he has relied on the decision of the Apex Court in Nirmala Devi Vs Arun Kumar Gupta & Others (JT 2000 (4) SC 229). 16. On the other hand, the first respondent has contended that the transactions under Ex.P1 and Ex.P2 and Ex.P11 and Ex.P12 are entirely different. Since the second respondent failed to discharge the amount borrowed under Ex.P11 and failed to honour the cheque-Ex.P12, he had no other option but to file a criminal case against the second respondent. 16. On the other hand, the first respondent has contended that the transactions under Ex.P1 and Ex.P2 and Ex.P11 and Ex.P12 are entirely different. Since the second respondent failed to discharge the amount borrowed under Ex.P11 and failed to honour the cheque-Ex.P12, he had no other option but to file a criminal case against the second respondent. In the said case, the second respondent paid a sum of Rs. 50,000-by way of demand draft. Accordingly, the said case was settled out of Court. It is further contended that the suit filed by Sri Vinod Kumar has nothing to do with the present case. The documents produced along with the applications Misc. Cvl. Nos. 14135/2009 and 14673/2009 are not relatable to this case and they are not required for the disposal of this appeal. Therefore, he prays for dismissal of the appeal as well as the applications. 17. In the light of the rival contentions of the parties, questions for consideration in this appeal are as under: .(i) Whether the applications filed in Misc. Cvl. Nos. 14135/2009 and 14673/2009 required to be allowed? .(ii) Whether the impugned judgment and decree requires interference? REG. PINT NO. (i): 18. Order 41 Rule 27 of CPC provides for production of additional evidence at the appellate stage. It states that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary at the appellate state. But if the Court from whose decree an appeal is preferred has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, the appellate Court may allow additional evidence at the appellate stage. Further, if the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, the appellate Court may allow additional evidence. Further, if the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, the appellate Court may allow additional evidence. The third circumstance is that, if the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce any judgment or for any other substantial cause, the appellate Court may allow such evidence or document to be produced or witness to be examined. 19. Thus, an appellate Court would not generally travel outside the record of the lower Court, or allow additional evidence. No doubt, it has discretion to allow production of additional evidence, but that discretion is circumscribed by the limitations specified under Order 41 Rule 27 of the Code of Civil Procedure. Additional evidence cannot be allowed to be produced, either for shaking the credit of a witness or for allowing a litigant to patch up the weak parts of his case. Similarly, the mere fact that certain evidence is important is not sufficient for adding that evidence in appeal. The appellate Court is bound to consider the application under Order 41 Rule 27 of the CPC only when the appeal is to be decided on merits North Eastern Railway Administration, Gorakhpur Vs Bhagwan Das (Dead) By Lrs. ( 2008 (8) SCC 511 ). 20. The case of the appellant does not fall within the conditions prescribed in Order 41 Rule 27(a) and 27(aa) of the Code of Civil Procedure. It is not the case of the appellant that notwithstanding the exercise of due diligence, the evidence in question was not within his knowledge or that he could not produce the same or that the Court below has refused to admit the said evidence which ought to have been admitted. Even Rule 27(b) or Order 41 of Code of Civil Procedure does not assist the appellant for production of the documents in question. The additional evidence sought to be produced are in respect of a suit in O.S. No. 7631/2004 filed by one Vinod Kumar against the first defendant and his mother Kanthamma. In the said suit, Vinod Kumar sought to recover a sum of Rs. The additional evidence sought to be produced are in respect of a suit in O.S. No. 7631/2004 filed by one Vinod Kumar against the first defendant and his mother Kanthamma. In the said suit, Vinod Kumar sought to recover a sum of Rs. 86,000/-from the second defendant and his mother on the ground that he had advanced a sum of Rs. 50,000/-to the defendants therein on 12.10.2001 and the defendants executed a promissory note and a consideration receipt on the same day and that they have failed to pay the said amount in terms of the said promissory note. That has nothing to do with this appeal. This appeal arises out of a decree passed in a suit filed by the plaintiff for recovery of the amount in question on the basis of a promissory note dated 16.11.1998-Ex.P1 and a consideration receipt dated 16.11.1998-Ex.P2 respectively executed by defendant Nos.1 and 2 in favour of the plaintiff. Therefore, the documents produced along with the applications-Misc. Cvl. Nos. 14135/2009 and 14673/2009 are not necessary for disposal of the present appeal. The decision in NIRMALA DEVI’s case (spura) has no application to the facts of this case because the transaction between the plaintiff and defendant Nos. 1 and 2 under Ex.P1 and Ex.P2 has nothing to do with the suit filed by Vinod Kumar. Therefore, the applications-Misc. Cvl. Nos. 14135/2009 and 14673/2009 are hereby rejected. REG. POINT NO. (ii): 21. As noticed above, the suit filed by the plaintiff is for recovery of a sum of Rs. 86,056/-with interest thereon at 18% per annum from the defendants on the basis of the pro-note and a consideration receipt executed by defendant Nos. 1 and 2 in favour of the plaintiff. The third defendant filed his written statement on 8.10.2002 denying his liability to pay the amount in question. On the basis of the plaint and the written statement filed by the third defendant, the Court below had framed the issues, which have already been culled out in paragraph 5 of this judgment. The first and second defendants filed written statement on 6.8.2003 along with an application seeking permission of the Court below to file the written statement. The Court below permitted defendant Nos. 1 and 2 file the written statement on payment of cost of Rs. 250/-by its order dated 16.12.2005. Defendant Nos. 1 and 2 have admitted execution of Ex.P1 and Ex.P2. The Court below permitted defendant Nos. 1 and 2 file the written statement on payment of cost of Rs. 250/-by its order dated 16.12.2005. Defendant Nos. 1 and 2 have admitted execution of Ex.P1 and Ex.P2. They have taken a plea of discharge of the amount in question. It is contended that they have paid back a sum of Rs. 22,000/-to the plaintiff towards partial discharge of the amount borrowed from him. It is further contended that the second defendant had issued a cheque-Ex.P12 in favour of the plaintiff for a sum of Rs. 50,000/-and the plaintiff has promised to return the said cheque issued by the second defendant and the promissory note-Ex.P1 on payment of the full amount by defendant Nos. 1 and 2. The plaintiff taking advantage of the cheque, filed a criminal case in CC No. 28691/2000 under Section 138 of the Negotiable Instruments Act. The said matter was settled as per the order in the said case, a copy of which has been marked at Ex.P13. However, the plaintiff contends that the transactions under Ex.P1 and Ex.P2 and Ex.P11 and Ex.P12 are entirely different. The plaintiff filed CC No. 28691/2000 since the cheque issued by the second defendant was dishonoured by the Bank. It is further contended that the second defendant has issued a receipt as per Ex.P11 wherein he has clearly stated his borrowing of Rs. 50,000/-and issuing the cheque at Ex.P12. 22. It is to be noted here that the second defendant has not filed any appeal challenging the judgment and decree of the Court below. It is true that under Order 41 Rule 4 of the CPC, one of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on the ground common to all. However, when the plaintiff has specifically pleaded that the transaction under Ex.P1, Ex.P2, Ex.P11, Ex.P12 and Ex.P13 are entirely different, the second defendant ought to have challenged the judgment and decree. Order 14 of the CPC provides for framing of issues. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Issues are to be framed in respect of only those facts, which have been alleged by one party and either denied or not admitted by the other party. Order 14 of the CPC provides for framing of issues. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Issues are to be framed in respect of only those facts, which have been alleged by one party and either denied or not admitted by the other party. It is no doubt true that the issues have been framed on 5.7.2003 on the basis of the plaint and the written statement filed by the third defendant. The plea of defendant Nos. 1 and 2 is the plea of discharge of the entire amount. Therefore, the burden was on defendant Nos. 1 and 2 to establish that the debt has been discharged. Section 101 of the Indian Evidence Act states that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person bound to prove the existence of any fact, it is said that the burden of proof lies on that person. No issue has been framed casting burden on defendant Nos. 1 and 2 on the question. However, the parties have understood the case and let in their evidence. Therefore, the question is what is the consequence of an omission to frame an issue on fact? Though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the Court and the Court decides the point as if there was an issue framed on it, the decision will not be set aside in appeal on the ground that no issue was framed. The reason is that mere omission to frame an issue is not fatal to the trial of the suit unless it has affected disposal on the merits. The Apex Court in Nedunuri Kameswaramma Vs Sampati Subba Rao (AIR 1963 SCC 884), has held that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. A Division Bench of this Court in Siddegowda Vs Siddegowda And Others (1987 (1) KLJ 62), has held that when a finding has been recorded on appreciation of the evidence lead by the parties, omission to frame the issue does not vitiate the judgment. 23. In the present case, the parties have let in their evidence on the plea of discharge. The plaintiff has produced the documents Ex.P11 and Ex.P12 in his evidence on 23.3.2006. The said documents were marked subject to the production of the originals. The plaintiff has produced the originals of Ex.P11 and Ex.P12 subsequently. He has been extensively cross-examined on this question by the Learned Counsel appearing for defendant Nos. 1 and 2. In the cross-examination, the plaintiff has stated that he has taken receipt from the second defendant for payment of Rs. 50,000/-to him as per Ex.P11. The payments made under Ex.P1, Ex.P2 and Ex.P11 and Ex.P12 are by cash. He has denied the suggestion that he had made galata with the defendants for repayment of Rs. 50,000/-and defendant No. 2 being a Government Servant (Doctor) issued a cheque Ex.P12. He has denied the suggestion that for issuance of the cheque Ex.P12, defendant Nos. 1 and 2 have not taken any amount and that they were not liable to pay any amount as shown in the cheque. He has further denied the suggestions that taking advantage of the cheque Ex.P12, he has filed a criminal case and that since defendant No. 2 is a Government servant in order to void all complications he gave Rs. 50,000/-and got the case settle before the Criminal Court as per Ex.P13. 24. The first defendant was examined as D.W1. In his examination-in-chief, he has stated that the plaintiff has deliberately filed CC No. 28691/2000 and in the said case, amounts due to the plaintiff has been settled. The entire evidence of the parties goes to show that the parties have understood their case, let in their evidence on the plea of discharge. Merely because an issue has not been framed casting the burden on defendant Nos. 1 and 2 regarding plea of discharge is not fatal to the case. Therefore, the submission of the Learned Counsel for the appellant that judgment and decree impugned herein is bad since no issue relating to plea of discharge has been framed is hereby rejected. 25. Merely because an issue has not been framed casting the burden on defendant Nos. 1 and 2 regarding plea of discharge is not fatal to the case. Therefore, the submission of the Learned Counsel for the appellant that judgment and decree impugned herein is bad since no issue relating to plea of discharge has been framed is hereby rejected. 25. It is the specific case of the plaintiff that the transaction under Ex.P1 and Ex.P2 and Ex.P11 and Ex.P12 are entirely different. Since the cheque issued by the second defendant at Ex.P12 was dishonoured, the plaintiff filed CC No. 28691/2000 under Section 138 of the Negotiable Instruments Act. The matter was settled in so far as the dishonour of the cheque-Ex.P12 is concerned. It is an admitted fact the second defendant has issued a receipt as per Ex.P11, which is as under: “RECEIPT Received a sum of Rs. Fifty thousand (50,000/-) only from B. Srinivasa Naik residing at No. 423, 6th Block, Rajajinagar, Bangalore-10 to meet my urgent requirements in connection with the construction of house 968, 2nd Main Road, M.C. Layout, Vijayanagar, Bangalore-40. I have issued a cheque bearing No. 0376917 dated 8.4.1999 for likesum to ensure repayment of the said hand loan.” 26. It is evident from the aforesaid receipt that the second defendant has admitted having issued a cheque. It is not in dispute that the receipt is in the handwriting of the second defendant dated 22.2.1999 and the cheque is dated 8.4.1999. The compromise entered into between the parties is at Ex.P13. The said order does not state anything about the execution of the promissory note and consideration receipt at Ex.P1 and Ex.P2. Therefore, there is no merit in the contention of the Learned Counsel for the appellant that the cheque issued by the second defendant in favour of the plaintiff is in discharge of the amount received by defendant Nos.1 and 2 under Ex.P1 and Ex.P2. 27. As discussed above, the plaintiff has filed a suit on the basis of Ex.P1 and Ex.P2-promissory note and consideration receipt respectively. Defendant Nos.1 and 2 have filed their written statement admitting the execution of the pro-note and consideration receipt at Ex.P1 and Ex.P2. However, they have taken a plea of discharge. It is the case of the plaintiff that there is no relationship between the two transactions under Ex.P1, Ex.P2 and Ex.P11 and Ex.P12. Defendant Nos.1 and 2 have filed their written statement admitting the execution of the pro-note and consideration receipt at Ex.P1 and Ex.P2. However, they have taken a plea of discharge. It is the case of the plaintiff that there is no relationship between the two transactions under Ex.P1, Ex.P2 and Ex.P11 and Ex.P12. Therefore, question of raising a plea relating to the transaction under Ex.P11 and Ex.P12 by the plaintiff does not arise. The Court below on consideration of the facts and circumstances of the case, has decreed the suit. The findings of fact recorded by the Court below is on proper appreciation of the evidence on record and there is no perversity, illegality or irregularity in those findings. There is no merit in this appeal. It is accordingly dismissed. Respondent No. 1 (Plaintiff in the suit) is permitted to withdraw the amount in deposit in this appeal. 28. Learned Counsel for the appellant submits that he may be permitted to take back the documents produced along with the applications-Misc. Cvl. Nos. 14135/2009 and 14673/2009. The first respondent has no objection for the same. Therefore, Registry is directed to return the documents produced along with Misc. Cvl. No. 14135/2009 and 14673/2009 to the Learned Counsel for the appellant after retaining their Xerox copies. No costs.