Research › Search › Judgment

Telangana High Court · body

2021 DIGILAW 425 (TS)

B. Vishwanth v. D. Sreenivas

2021-12-21

M.LAXMAN

body2021
JUDGMENT : The present Second Appeal has been directed against the judgment and decree dated 16.02.2010 in A.S.No.90 of 2006 on the file of XI Additional Chief Judge, City Civil Court (FTC), Hyderabad, wherein and whereby, the judgment and decree dated 16.12.2005 in O.S.No.471 of 2002 on the file of XI Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad, was reversed. Initially, primary Court decreed the suit. 2. The appellant is the plaintiff and the respondent is the defendant. For convenience, the ranks of the parties as were referred to in the suit, is maintained. 3. The sum and substance of the case of the plaintiff is that the defendant, to meet his business needs, borrowed an amount of Rs.1,35,000/- on 09.05.1999 and executed a promissory note agreeing to repay the amount with interest @ 24% p.a. Subsequently, defendant paid Rs.60,000/- towards interest on different dates and obtained acknowledgements. The defendant did not pay the balance amount. Hence, a legal notice dated 16.03.2002 was issued calling upon the defendant to pay the amount and the defendant gave a reply dated 28.03.2002 with a false claim. Hence, the present suit. 4. The case of the defendant is that the plaintiff engaged him to recover the loan amounts from various debtors advanced by the plaintiff. As a guarantee to the recovery of said amounts, the plaintiff obtained signatures of the defendant on blank and stamped papers towards security. Defendant was paid monthly remuneration of Rs.15,000/-. The defendant has to pay Rs.5,000/-, which he has collected from the customers of the plaintiff. On account of non-payment of such amount, the defendant created the suit documents and filed the present suit. The defendant also initiated criminal case against the plaintiff. 5. The trial Court, on the basis of said pleadings, has framed the following issues : “1. Whether the defendant executed suit pro-note under the circumstances mentioned in the written statement ? 2. Whether the plaintiff is entitled for recovery of suit amount from the defendant ? 3. To what relief ?” 6. The plaintiff, to support his case, examined PWs.1 and 2 and relied upon Exs.A-1 to A-6. The defendant examined DWs.1 and 2. The trial Court, after appreciating the evidence on record, has decreed the suit. As against the said judgment and decree, the defendant preferred the appeal. In the appeal, the judgment of the trial Court was reversed. The plaintiff, to support his case, examined PWs.1 and 2 and relied upon Exs.A-1 to A-6. The defendant examined DWs.1 and 2. The trial Court, after appreciating the evidence on record, has decreed the suit. As against the said judgment and decree, the defendant preferred the appeal. In the appeal, the judgment of the trial Court was reversed. Hence, the present Second Appeal. 7. Heard counsel for both sides. 8. As per the grounds of Memorandum of Appeal, the following substantial questions of law are raised by the appellant : “a) Whether the Lower Appellate Court is justified in reversing the Judgment and Decree made in OS.No.471/2002 on the file of the XI Additional Senior Civil Judge, City Civil Court at Hyderabad, dated 16.12.2005 without considering the facts and law in its perspective ? b) Whether the Ex.A1 Promissory note and Ex.A2 Receipt dated 9-05-99 are not supported by consideration ? c) Whether the Appellant is entitled for recovery of the suit amount ? d) Whether the Judgment and Decree of the Lower Appellate Court is in violation of settled principles of law laid down by this Hon’ble Court as well as the Apex Court ?” 9. The scope of interference of the appellate Court in the Second Appeal is very limited. In order to admit the Second Appeal, the appellant/plaintiff must establish the substantial questions of law involved in the appeal. Now, the question is whether the substantial questions raised in the Memorandum of Appeal really constitute substantial questions of law. To decide the same, a little appreciation of the evidence is required. The judgment of the trial Court was reversed by the first appellate Court on the basis of certain admissions made by PW-2 in the cross-examination. Two admissions have been taken by the first appellate Court to reverse the judgment of the trial Court. The first ground was that there was error in giving the date of the promissory note. The second ground was that the suit promissory note amount was borrowed prior to the execution of the pronote. The plaintiff’s case was that on the date of execution of the promissory note itself, the amount was lent to the defendant, whereas his own witness does not support the said theory. According to the first appellate Court, the trial Court has not considered the said admissions made by PW-2 in the cross-examination. The plaintiff’s case was that on the date of execution of the promissory note itself, the amount was lent to the defendant, whereas his own witness does not support the said theory. According to the first appellate Court, the trial Court has not considered the said admissions made by PW-2 in the cross-examination. The first appellate Court found that on account of such admissions, the defendant has rebutted the presumptions which were initially in favour of plaintiff on account of admissions made by the defendant with regard to execution of the promissory note. Once the rebuttal evidence is established, it is for the plaintiff to establish passing of consideration in support of the promissory note. Absolutely, there is no further evidence from the plaintiff to demonstrate that on the date of execution of the promissory note, the amount covered under the promissory note was paid to the defendant. The conclusion of the trial Court is based on the said admissions and also taking into consideration the defence set up by the defendant that the signatures were obtained on blank promissory note. The said conclusion of the first appellate Court is also possible on account of admissions made by PW-2. The substantial questions raised in the grounds are only pertaining to the appreciation of evidence on record. 10. In view of such findings of the first appellate Court based on the admissions of PW-2, I do not find any perversity in the judgment and decree of the first appellate Court and there is no substantial question of law involved in this appeal. Hence, the appeal is liable to be dismissed and it is accordingly dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.