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2021 DIGILAW 847 (AP)

Kannuri Venkata Rmakrishna Rao v. Chodisetti Hemasankar

2021-12-14

M.VENKATA RAMANA

body2021
JUDGMENT : The defendant is the appellant. The respondent was the plaintiff. 2. The respondent laid the suit against the appellant on the foot of a promissory note dated 09.09.2012 against the appellant alleging that he borrowed Rs.4,00,000/-thereunder on that day agreeing to repay the same with interest at 24% p.a., which he defaulted to repay in spite of repeated demands and issuance of a legal notice on 01.05.2013. 3. The substantial defence of the appellant is one of denial of execution of the suit promissory note while stating that father of the respondent had obtained blank promissory notes with his signatures in connection with sale of a house site and one such blank promissory note was made use of to bring out the suit promissory note. 4. On the pleadings, the trial Court settled appropriate issues for trial. 5. The parties went to trial where the respondent examined himself as P.W.1, a third party as P.W.2 and relied on Ex.A1 and Ex.A2. The appellant examined himself as D.W.1 and no document was marked on his behalf. 6. Basing on the material and evidence the trial Court rejected the defence assigning reasons and accepted the contention of the respondent decreeing the suit. 7. In the appeal, the attempt of the appellant was not successful and the decree and judgment of the trial Court were confirmed. 8. These are the circumstances leading to presenting the second appeal. 9. Sri S.Subba Reddy, learned counsel for the appellant, contended that there is no material establishing that the respondent had capacity to lend such a huge amount on the date of the suit promissory note while referring to the evidence on record supporting the defence of the appellant. 10. Both the Courts below considered the claims of both the parties referring to the evidence on record and consistently came to the conclusion rejecting the defence. Thus, there are concurrent findings on facts. It is a factor to consider, in the appeal presented under section 100 CPC. 11. There is evidence on record from the respondent examined as P.W.1. P.W.2 is stated to be the attestor referred in the judgment of the trial Court. Sri S.Subba Reddy, learned counsel for the appellant, brought to the notice of this Court P.W.2 did not attest Ex.A1 promissory note, who is a third party to the transaction. 11. There is evidence on record from the respondent examined as P.W.1. P.W.2 is stated to be the attestor referred in the judgment of the trial Court. Sri S.Subba Reddy, learned counsel for the appellant, brought to the notice of this Court P.W.2 did not attest Ex.A1 promissory note, who is a third party to the transaction. Nonetheless, when the testimony of P.W.2 is to the effect that he was in attendance at the time of Ex.A1 transaction along with Sri K.Ramana, the appellant, the respondent and another Sri Chalam, it is expected that there should be cross-examination of this witness questioning his presence at the time of the suit transaction. Unfortunately, the tenor of cross-examination of P.W.2 was not on such lines and not even a suggestion was put to this witness disputing his presence at the time of the suit transaction. 12. Ex.A2 is the copy of legal notice issued to the appellant prior to the institution of the suit on behalf of the respondent. No reply was issued to it on behalf of the appellant setting out similar defence as is found in this case. It is one circumstance that was considered by both the Courts below questioning the veracity of the nature of defence. 13. The defence itself offered a circumstance that the signature appearing on Ex.A1 is that of the appellant. In such circumstances, though the appellant flatly denied the entire suit transaction, it is for him to establish as to how his signature is appearing on Ex.A1 suit promissory note. Apparently the signature is at the place on the suit promissory note where it ought to be. Thereby a presumption as such can be raised in terms of Section 114 of the Indian Evidence Act that such signature should have been subscribed in the circumstances stated in Ex.A1 itself basing on its intrinsic worth along with the testimony of P.W.1. In these circumstances, rebuttal is required specifically from the appellant and apparently he failed to establish these facts. 14. Both the Courts below took into consideration these circumstances as factors of reckonance to reject the defence. 15. In these circumstances, rebuttal is required specifically from the appellant and apparently he failed to establish these facts. 14. Both the Courts below took into consideration these circumstances as factors of reckonance to reject the defence. 15. Both the Courts below also considered, basing on the testimony of P.W.1 and P.W.2 about the capacity of the respondent to lend and further both the Courts rightly observed that no steps were taken by the appellant, when the father of the respondent had retained blank promissory notes containing his signatures with him without demanding their return. 16. Thus, the evidence considered and circumstances on record are in the realm of facts. 17. In this backdrop, when the jurisdiction of this Court is considered in terms of Section 100 CPC, there are no such questions much less substantial questions of law sought to be raised on behalf of the appellant in this second appeal to consider. 18. But one disturbing feature in this case is demand of interest at 24% p.a. on the principal amount. The evidence of P.W.1 itself makes out that the appellant had borrowed from him to meet family expenses. Thus, it is not a commercial transaction on the face of it. In such circumstances, claiming interest at 24% p.a,. makes out that an usurious act was adopted by the respondent in this transaction. When the transaction exfacie presented such a scenario of usury, the Court can reopen the entire transaction in terms of Section 3 of the Usurious Loans Act. 19. Though there is no specific defence in this context raised by the appellant, when the transaction is unconscionable and ex-facie usurious, the Court is entitled to reopen the original transaction and is empowered to scale down the rate of interest to a reasonable level. In the facts and circumstances, if the interest claimed by the respondent is reduced to 12% p.a. from the date of borrowing till the date of decree and thereafter to grant interest in terms of Section 34 CPC, it meets the ends of justice. 20. Therefore, in the given facts and circumstances, except to the extent stated above, interference with the decrees and judgments of both the Courts below is not required. 21. 20. Therefore, in the given facts and circumstances, except to the extent stated above, interference with the decrees and judgments of both the Courts below is not required. 21. In the result, this second appeal is disposed of directing reduction of interest to 12% p.a. on Rs.4,00,000/-from the date of the suit promissory note till 11.07.2017 and thereafter at 6% p.a. on Rs.4,00,000/-from the date of the decree, namely 12.07.2017 till realization. No costs. Accordingly a decree be drawn. As a sequel, pending miscellaneous petitions, if any, stand closed. Interim Orders, if any, stand vacated.