JUDGMENT : H. B. PRABHAKARA SASTRY, J. 1. The present appellant as a plaintiff, had instituted a suit against the present respondent in the Court of learned I Addl.Civil Judge (Sr.Dn.,), Davanagere, (hereinafter for brevity referred to as 'trial Court'), in O.S.No.262/2004, for recovery of a sum of Rs.1,42,000/- with future interest and for Court costs. 2. The summary of the case of the plaintiff in the trial Court is that herself and defendant are known to each other since ten years and there was friendly relationship developed between them. On 1.1.2003, the defendant had borrowed a loan of Rs.1 lakh for domestic purpose from her and had agreed to repay the same with interest at the rate of 2% per month. The plaintiff paid the said amount to the defendant in the presence of witnesses. On the same day, the defendant had executed an on-demand Promissory Note in favour of the plaintiff. Though the defendant had agreed to repay the said loan amount within six months, however, he committed default by not repaying the loan amount. This made the plaintiff to issue a legal notice dated 24.8.2004 to the defendant calling upon him to repay the loan amount with interest. The defendant gave an evasive reply, but, did not comply the demand made in the notice. This constrained the plaintiff to institute the suit for recovery of the amount due, which according to the plaintiff, was a sum of Rs.1,42,000/-, including the principle amount and the interest. 3. In response to the summons, the defendant appeared and filed his written statement, wherein, he had denied the plaint averments, more particularly, the alleged loan transaction said to have been existing between the plaintiff and himself. He specifically stated that he did not avail any loan from the plaintiff. As such, he being in due of repayment of the loan amount with interest does not arise. He further contended that earlier to the issuance of the legal notice dated 28.4.2004 by the plaintiff, he (defendant) himself had issued a legal notice on 15.7.2004, asking for returning of two blank Promissory Notes that was kept by him in the hands of the plaintiff through her husband about four years back when he had obtained a loan from him. Though the said loan was repaid, however, the plaintiff had retained the said Promissory Notes. Though the said loan was repaid, however, the plaintiff had retained the said Promissory Notes. The same Promissory Note has been now misused by the plaintiff with a wrongful intention and to make wrongful gain. 4. Based on the pleadings of the parties, the trial Court framed the following issues : (1) Whether the plaintiff proves that, on 01.01.2003, the defendant has borrowed the hand loan of Rs.1,00,000/- and has agreed to repay the same with interest @ 2% per month and on the same day has executed an on-demand promissory note in his favour? (2) Whether the defendant proves that, the alleged promissory note is a created document? (3) Whether the suit is barred by limitation? (4) Whether the plaintiff proves that as on the date of suit, the defendant is in due of Rs.1,42,000/-? (5) Whether the plaintiff is entitled for the suit claim? (6) What order or decree? In support of her case, the plaintiff got herself examined as PW-1 and got examined one Sri Chandrappa as PW-2 and documents from Exs.P-1 to P-4 were marked. The defendant got himself examined as DW-1 and got examined one Sri Shiva Kumar and Smt.Shivamma as DW-2 and DW-3 respectively and also got marked the documents from Exs.D-1 to D-4. After hearing both side, the trial Court by its impugned judgment dated 19.4.2006, dismissed the suit of the plaintiff. It is against the said judgment, the plaintiff has preferred the present appeal. 5. The lower Court records were called for and the same are placed before this Court. 6. Heard the learned counsel for the appellant and perused the memorandum of appeal and impugned judgment. 7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 8. The learned counsel for the appellant in his arguments submitted that the trial Court even after accepting that there was a loan transaction between the parties and the suit was filed within limitation, however, on its own and without there being any pleading or evidence, presumed that there were alterations in the Promissory Note and dismissed the suit of the plaintiff, which is erroneous. Learned counsel also submitted that the defendant attempted to amend his written statement in the trial Court by filing an interlocutory application attempting to bring the alleged alteration in the Promissory Note as one of the ground in the written statement, however, the said IA came to be rejected. Learned counsel further submitted that the plaintiff examined an attesting witness to the Promissory Note as PW-2, whose evidence also corroborates the evidence of the plaintiff and proves that defendant had availed the loan as alleged. However, the defendant has not taken any action for claiming back his alleged two blank Promissory Notes from the plaintiff and not filed any police complaint in that regard which also shows that the contention taken up by the defendant was a false one. 9. Inspite of granting sufficient opportunity, learned counsel for the respondent remained absent and did not address his arguments in the matter. 10. The plaintiff as PW-1 in her examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by her in her plaint. She has stated that the defendant who was known person to her had availed a hand loan of a sum of Rs.1 lakh on 1.1.2003 and had agreed to repay the same with 2% interest per month within six months from the date of the loan. In that regard, he had also executed an on-demand Promissory Note in the presence of the witnesses, who were Sri Chandrappa and Sri Hanchimane Thippanna. Despite receiving the loan amount, the defendant failed to repay the same and sent an evasive reply to her legal notice dated 28.4.2004. This resulted her to institute the present suit. In her support, the plaintiff got marked the Promissory Note at Ex.P-1, copy of legal notice at Ex.P-2, postal acknowledgement at Ex.P-3 and the reply notice at Ex.P-4. She also got marked the signature of defendant and alleged two witnesses to the Promissory Note at Exs.P-1(a), P-1(b) and P-1(c) respectively. In the cross-examination of PW-1, it was further elicited that the family of the defendant was known to the plaintiff and her husband. The defendant was a tenant in a shop premises under the plaintiff. She also got marked the signature of defendant and alleged two witnesses to the Promissory Note at Exs.P-1(a), P-1(b) and P-1(c) respectively. In the cross-examination of PW-1, it was further elicited that the family of the defendant was known to the plaintiff and her husband. The defendant was a tenant in a shop premises under the plaintiff. The witness admitted a suggestion that before she could sent legal notice to the defendant, the said defendant himself has sent a legal notice to her husband alleging that her husband had retained two blank Promissory Notes signed by the defendant without returning them to the defendant. However, the witness though denied the allegation, but, admitted the receipt of legal notice by her husband. However, she stated that her husband had suitably replied to the said notice through his counsel. When it was attempted to elicit from the said witness that neither herself nor her husband had any funds to lend money to the defendant, PW-1 has stated that her husband is working as a Revenue Inspector and as on the date of evidence, he was getting a gross salary of Rs.12,000/- per month. She also stated that, they have two shop premises and two rooms above those two shop premises which are all have been let out and that they have rental income also. She also stated that the entire source of income has been revealed by her husband in his Income-tax returns. PW-1 in her cross-examination has given some more details in reply to the question put to her from the defendant's side about how the loan transaction in question took place. She has stated that on 1.1.2003, she had given the loan amount of Rs.1 lakh to the defendant in cash in the form of ten bundles of Rs.100/- currency notices, each bundle containing 100 such notes. She has stated that she had accumulated the said amount since about seven to eight years. She also stated that Promissory Note was not got written in favour of her husband since her husband told her that the loan amount being her (plaintiff's) money received by her from her maternal home, the Promissory Note to be written in her favour only. She also stated that witnesses - Sri Chandrappa and Sri Hanchimane Thippanna, have put their signatures as witnesses to the transaction being present at the time of the transaction. She also stated that witnesses - Sri Chandrappa and Sri Hanchimane Thippanna, have put their signatures as witnesses to the transaction being present at the time of the transaction. She has identified the signatures of the defendant and the witnesses in the document. 11. In the above manner, PW-1 has given more details about the loan transaction and also in whose presence the said loan was given to the defendant. An attempt was also made in the cross-examination of PW-1 from the defendant's side that the writings in Ex.P-1, the Promissory Note, are in different shades of ink, which the witness has not admitted as true. However, the Court has recorded a finding in the deposition sheet that those details are written in different pen. 12. Pw-2 - Sri Chandrappa, in his examination-in-chief, has stated that he knows both the plaintiff and defendant and he visited the house of the plaintiff along with one Sri Hanchimane Thippanna, for the purpose of record of rights of his agricultural land on 1.1.2003. It was at that time, defendant was also present in the said house and requested the plaintiff for hand loan for a sum of Rs.1 lakh, which was given to him by the plaintiff in the form of cash. The witness has also stated that, in that connection, on the very same day and the same place, the defendant executed an on-demand Promissory Note in favour of the plaintiff, for which, he (this witness) subscribed his signature as a witness. He has identified the Promissory Note at Ex.P-1 and his signature at Ex.P-1(b). The witness was put to a detailed crossexamination from the defendant's side, wherein, the witness has adhered to his original version. His presence in the house of the plaintiff on 1.1.2003 was not specifically denied in his cross-examination. On the other hand, even PW-2 also has given the details of giving of the loan to the defendant by the plaintiff by stating that the loan was given in the form of cash of a sum of Rs.1 lakh in the form of ten bundles of Rs.100/- currency notes, with each bundle containing 100 such notes. The evidence of said PW-2 corroborates the evidence of PW-1 about the loan. 13. The defendant as DW-1 in his evidence has reiterated the contentions taken up by him in his written statement. The evidence of said PW-2 corroborates the evidence of PW-1 about the loan. 13. The defendant as DW-1 in his evidence has reiterated the contentions taken up by him in his written statement. Though he has stated that he has seen the plaintiff, but, stated that he had never taken a hand loan of Rs.1 lakh from the plaintiff, much less, on 1.1.2003. On the other hand, he has stated that he had issued legal notice to the plaintiff on 15.7.2004, for returning the two blank Promissory Notes containing his signature. However, it is to be noticed that no where in his examination-in-chief the witness has stated as to when and under what circumstances he had given two blank Promissory Notes containing his signature to the plaintiff. The evidence of DW-1 that he had issued a legal notice to the plaintiff on 15.7.2004 is contrary to his own suggestion made to PW-1 in her cross-examination that such a notice by the defendant was given not to her, but, to her husband. DW-1 in his cross-examination himself once again stated that he had not issued any notice to the plaintiff. Though a suggestion was made to this witness in his cross-examination that he had given two blank signed Promissory Notes to the plaintiff and her husband, but, in the very next sentence, the witness has stated that, he has cleared the loan of a sum of Rs.1,50,000/- to them. Therefore, there is no evidence to come to a conclusion that the alleged two Promissory Notes said to have been given by DW-1, includes the suit subject Promissory Note, which is at Ex.P-1. However, it was further suggested to DW-1 in his cross-examination that he had availed a loan of Rs.1 lakh from the plaintiff on 1.1.2003, in which connection, he has executed a Promissory Note at Ex.P-1. The witness has not admitted the said suggestion as true. 14. Dw-2 - Shiva Kumar has stated that in December 2003, one day he had been to the house of defendant and at that time, plaintiff was in the house of defendant. The mother of the defendant gave a sum of Rs.1,50,000/- in cash to the plaintiff and at the insistence of the plaintiff, the mother of the defendant gave her some money towards interest. The mother of the defendant gave a sum of Rs.1,50,000/- in cash to the plaintiff and at the insistence of the plaintiff, the mother of the defendant gave her some money towards interest. The witness has further stated that mother of the defendant told them that, about four to five years back, father of the defendant had availed a loan, in which connection, he had obtained the signatures of the defendant on two blank Promissory Notes and had given them to the plaintiff. The said statement made by DW-2 creates a doubt with respect to the previous loan transaction, for the reason that, had really there was a previous loan transaction between father of the defendant and the plaintiff and had really the two blank Promissory Notes signed by the defendant were said to have been given by the said father of the defendant to the plaintiff, then, nothing had prevented the defendant to speak about the same both in his pleading, as well in his evidence as DW-1. However, as observed above, the pleading of the defendant, as well his evidence as DW-1 is silent about it. Had really such a previous loan transaction was in existence, then, the same would have been more to the knowledge of the defendant than DW-2. In such an event, definitely the defendant both in his pleading and the evidence should have given more details about the same. 15. Added to the above, another doubt which crops up in the defence of the defendant is that, none of the defendant's witnesses, including DW-1, have any where stated as to why the father of defendant himself who was a salaried person did not execute Promissory Note in favour of the plaintiff when he was said to have availed a loan from the plaintiff about four to five years prior to December 2003, instead, why did he made his son i.e., the defendant, to sign two blank Promissory Notes and gave it to the plaintiff. 16. Therefore, the evidence of DW-1 and DW-2 that two blank Promissory Notes signed by the defendant were given to the plaintiff does not inspire confidence to believe it. 16. Therefore, the evidence of DW-1 and DW-2 that two blank Promissory Notes signed by the defendant were given to the plaintiff does not inspire confidence to believe it. Moreover, the very same DW-2 in his cross-examination, apart from stating that there are no documents to show that mother of the defendant has paid a sum of Rs.1,50,000/- to the plaintiff, has also stated that, when that money was given by the defendant's mother to the plaintiff, he was not present. The said statement of DW-2 takes away the entire value of his examination-in-chief and makes his evidence unsafe to believe. 17. Dw-3 Smt.Shivamma, who is admittedly the mother of the defendant also in her examination-in-chief has stated that her husband had availed a loan from the plaintiff about five years back. It was at that time, signature of his son i.e., defendant was taken by her husband on two blank Promissory Notes. Even the said witness has also not stated as to why did the son was made to sign blank Promissory Notes rather than the alleged borrower who was also a salaried person. In her cross-examination, the witness has stated that she has no document to show that she had a sum of Rs.1,50,000/- with her on the day when she is said to have paid the said amount to the plaintiff in December 2003 towards repayment of alleged loan. Therefore, the evidence of DW-3 is also to be treated as the evidence of an interested person and not giving some essential details about the alleged previous loan transaction by her and also about the alleged repayment of the said loan makes her evidence unsafe to believe. 18. In view of the above analysis of the prosecution witnesses, when the plaintiff, apart from leading her evidence which inspires confidence to believe, could able to examine PW-2 also who was an attesting witness to the Promissory Note at Ex.P-1 and when his evidence could inspire confidence to believe, the unreliable evidence of DWs.1 to 3 goes to the background and the plaintiff's case has to be treated as proved. 19. 19. An additional factor which also to be considered at this juncture is the fact that the defendant has not taken any action against the plaintiff by filing police complaint or any other action in a manner known to law to get his alleged blank Promissory Notes back from the plaintiff. After issuing notice to her husband, the defendant has kept quite and has not taken any further action. These aspects, the trial Court has not considered at all. On the other hand, merely because there appears to be some change in the colour of the ink or the pen in writing Ex.P-1, the trial Court by itself assumed many things, including the one that the name of the promisee in the Promissory Note was also altered or tampered and proceeded to dismiss the suit of the plaintiff. 20. Since in view of the analysis made above, which has shown that the plaintiff could able to prove her case and has shown that the finding given by the trial Court is erroneous, I have to hold that the judgment under appeal deserves to be set aside and the suit of the plaintiff deserves to be decreed. At the same time, considering the fact that the loan given by the plaintiff to the defendant was for personal need and not for any commercial purpose, the rate of interest claimed by the plaintiff, which is at 2% per month, is very much on the higher side and the same requires to be confined to at the rate of 6% p.a. 21. Accordingly, I proceed to pass the following order: ORDER The Appeal is allowed. The judgment and decree dated 19.4.2006, passed by the learned I Addl. Civil Judge (Sr.Dn.), Davanagere, in O.S.No.262/2004, is set aside. The suit of the plaintiff is decreed. The plaintiff is entitled to recover a sum of Rs.1,00,000/- (Rupees One lakh only), together with interest thereupon at the rate of 6% p.a. from the date of the loan, which is 1.1.2003, till its realisation from the defendant. Draw the decree accordingly. The refund of the Court fee to the appellant would be in accordance with law. The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.