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2013 DIGILAW 82 (AP)

Kanipakam Kannaiah v. Sudhala Sankaraiah

2013-02-11

L.NARASIMHA REDDY

body2013
Judgment : The respondent filed O.S.No.16 of 2006 in the Court of the Senior Civil Judge, Srikalahasti against the appellant for recovery of amount on the strength of a promissory note, dated 02.03.2000. It was stated by the respondent that being acquainted with him, the appellant borrowed a sum of Rs.57,700/- and he did not repay the same in spite of repeated demands. His further case was that when he went to the appellant, residing at Chittoor, for repayment of the amount, he paid a sum of Rs.100/-on 01.03.2003, acknowledging the debt covered by the promissory note. He ultimately prayed for a decree for the suit amount. The appellant filed a written statement. It was pleaded that he borrowed Rs.7,700/- from the respondent through Ex.A1 and that the respondent has clandestinely added the figure ‘5’ before the amount. He denied the endorsement, Ex.A2, dated 01.03.2003. In addition to that, the appellant has stated that the respondent got issued a notice, Ex.B1, on 22.10.2003 by taking a false plea that a sum of Rs.100/- was paid on 01.02.2003 and still, he did not make any reference to Ex.B1 either in the plaint or in the affidavit filed in lieu of chief-examination. The trial Court dismissed the suit through judgment, dated 13.02.2007. Aggrieved by that, the respondent filed A.S.No.54 of 2007 in the Court of the III Additional District Judge, Tirupathi. The appeal was allowed on 31.08.2010. Hence, this second appeal. The learned counsel for the appellant submits that there was no justification on the part of the lower appellate Court in reversing the decree passed by the trial Court. He contends that a clear discrepancy exists as to the very making of endorsement, Ex.A2, and read in the context of Ex.A1, the suit is clearly barred by limitation. He contends that if Ex.A2 is excluded, the suit is barred and if Ex.A2 is compared with Ex.B1, it emerges that there is a clear discrepancy leading to a situation where the suit is barred by limitation. In the suit filed by the respondent, the following issues were framed for consideration: 1. Whether the suit pronote is true, valid and binding on the defendant? 2. Whether the part payment pleaded by the plaintiff is true and binding on the defendant? 3. Whether the suit pronote is void for material alteration? 4. Whether the rate of interest is excessive and usurious? Whether the suit pronote is true, valid and binding on the defendant? 2. Whether the part payment pleaded by the plaintiff is true and binding on the defendant? 3. Whether the suit pronote is void for material alteration? 4. Whether the rate of interest is excessive and usurious? The respondent deposed as P.W.1 and on his behalf P.Ws.2 to 4 were examined. As observed earlier, promissory note was marked as Ex.A1 and the endorsement thereon as Ex.A2. Except that the appellant deposed as D.W1, he did not examine any other witness. The legal notice got issued by the respondent is marked as Ex.B1. The trial Court took the view that the respondent failed to prove Ex.A2 to its satisfaction and on that basis, dismissed the suit as barred by limitation. The lower appellate Court framed the following points for its consideration: (1) Whether the part payment under Ex.A2 is true, valid and binding on the defendant? (2) Whether the plaintiff is entitled for the suit amount? The lower appellate Court answered all the points in favour of the respondent. The second appeal arises out of a reversing decree passed by the lower appellate Court and accordingly, needs a close and careful scrutiny. The appellant did not dispute the execution of Ex.A1. His only plea was that the figure mentioned therein was Rs.7,700/-, whereas, the figure ‘5’ was added by the respondent. In this regard, it needs to be observed that apart from mentioning the amount in figures, it is stated in words also. In case the appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert. No such steps were taken. The appellant raised the plea that he has already repaid the amount covered by Ex.A1 with interest at 24% per annum. Even as regards this, it is only self-serving statement and no person, who has any knowledge about payment or has witnessed the act, was examined. Ex.A2 plays an important role in the suit. If there is no acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000. It is only Ex.A2, which is a connecting link. Ex.A2 plays an important role in the suit. If there is no acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000. It is only Ex.A2, which is a connecting link. According to the respondent, Ex.A2 endorsement was made on 01.03.2003. Though in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination. The only basis for the appellant to deny the existence of Ex.A2 is that having made a mention about that in Ex.B1, the respondent did not refer to the notice at all realising that it cannot be substantiated. That plea is as weak as any other contentions advanced by the appellant. Mere omission on the part of the respondent to make a reference to Ex.B1 in the plaint cannot be treated as fatal. Further, the appellant did not elicit anything in the cross-examination of P.W.1 as to the alleged fabrication of Ex.A2. At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert. Here again, he repeated the same performance vis-à-vis the contents of Ex.A2. The lower appellate Court has taken the correct view of the matter and this Court is not inclined to interfere with the judgment in the appeal. The second appeal is accordingly dismissed. There shall be no order as to costs. The miscellaneous petition filed in this appeal shall also stand disposed of.