JUDGMENT : V. GOPALA KRISHNA RAO, J. 1. This Appeal, under Section 96 of the Code of Civil Procedure [for short "the C.P.C."], is filed by the Appellant challenging the Decree and Judgment, dated 08.05.2006 in O.S. No. 84 of 2005 passed by the Additional Senior Civil Judge, Ongole [for short "the trial Court"]. 2. The appellant herein is the defendant and respondent herein is the plaintiff in O.S. No. 84 of 2005. 3. The respondent /plaintiff filed the suit for recovery of suit amount with costs and future interest as agreed on the foot of the suit promissory note, dated 11.08.2003. 4. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 5. The brief averments of the plaint, in O.S. No. 84 of 2005, are as under: The defendant borrowed a sum of Rs. 6,15,000/- from him on 11.08.2003 for his business purpose by executing suit promissory note on the even date in evidence of the suit transaction agreeing to pay the promissory note amount with interest as and when demanded by him. In spite of personal reminders and also through the mediators, the defendant did not choose to repay the suit promissory note amount and that the plaintiff is constrained to file the suit. 6. The defendant filed a written statement by denying all the averments mentioned in the plaint and further contended as under: - The defendant did not borrow Rs. 6,15,000/- on 11.08.2003 by executing the suit promissory note in favour of the plaintiff. The plaintiff is a practicing Advocate since several years. The plaintiff has no capacity to lend such a large sum to him. Both himself and the plaintiff are from the same village. The plaintiff is in the habit of taking promissory notes for exorbitant amounts as security for due payment of his fees as Advocate and return the same when the clients pay his fees. The plaintiff is in the habit of taking promissory notes for large sums either in his name or in the name of his close relatives. On one occasion when he was due Rs. 25,000/- in the name of his daughter. When he sent the fees through messenger, the plaintiff acknowledged the same stating that it was paid towards interest. When he protested, the plaintiff returned the promissory note. On one occasion when he was due Rs. 25,000/- in the name of his daughter. When he sent the fees through messenger, the plaintiff acknowledged the same stating that it was paid towards interest. When he protested, the plaintiff returned the promissory note. He further pleaded that as he is admitting his executing the suit promissory note, the burden is on the plaintiff in view of his fiduciary relationship with the plaintiff. He further pleaded that there were some other cases also in the Munsiff Courts. He paid the entire fees. But, the plaintiff did not pass receipts in evidence of receiving fees. He had no courage enough to ask for receipt from the plaintiff. As the suit promissory note is not supported by consideration and as it was brought into existence in the circumstances referred above, the defendant pleads to dismiss the suit. 7. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the suit promissory note was not supported by consideration and unenforceable as against the defendant? (2) To what relief? 8. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW.1 to PW.3 were examined and Ex.A.1 to Ex.A.14 were marked. On behalf of the Defendant, DW1 was examined and Ex.B.1 to B.9 and Ex.X.1 to Ex.X.4 were marked. 9. After completion of the trial and hearing the arguments of both sides, the trial Court decreed the suit vide its judgment, dated 08.05.2006, against which the present appeal is preferred by the defendant in the suit questioning the Decree and Judgment passed by the trial Court. 10. Heard Sri Srinivasa Rao Narra, learned counsel for the appellant and heard Sri K.V. Vijaya Kumar, learned counsel, representing Sri Subba Rao Korrapati, learned counsel for the respondent. 11. Learned counsel for the appellant would contend that the judgment and decree of the trial Court is contrary to law and he would further contend that the trial Court erred in decreeing the suit and the trial Court also erred in throwing the burden of proof on the defendant/appellant with regard to the capacity of the plaintiff to lend money and Ex.A.1 promissory note is not supported by consideration and he would further contend that the appeal may be allowed by setting aside the decree and judgment passed by the trial Court. 12. 12. Per contra, the learned counsel for the respondent would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit and there is no need to interfere with the finding given by the learned trial Judge. 13. Now the points for determination are: 1. Whether the trial Court is justified in holding that the plaintiff proved the execution of Ex.A.1 promissory note and receipt of consideration amount by the defendant? 2. Whether the judgment passed by the trial Court needs any interference? 14. Point No. 1 & 2: 1. Whether the trial Court is justified in holding that the plaintiff proved the execution of Ex.A.1 promissory note and receipt of consideration amount by the defendant? 2. Whether the judgment passed by the trial Court needs any interference? 15. The case of the plaintiff is that the defendant borrowed an amount of Rs. 6,15,000/- for his business necessity on 11.08.2003 and executed Ex.A.1 promissory note in favour of the plaintiff and the defendant himself scribed Ex.A.1 promissory note. The defence put forth by the defendant in the written statement itself is that the plaintiff has no capacity to lend money and the plaintiff is in the habit of obtaining promissory notes for exorbitant amounts from his clients towards his fees for conducting the cases. 16. As seen from the evidence of the defendant i.e., D.W.1, the defendant himself admitted his signature on the promissory note and he admits in his evidence that the signature on the promissory note belongs to him. The defendant admitted the execution of Ex.A.1 promissory note but he denied the passing of consideration under Ex.A.1. In order to prove the case of the plaintiff, the plaintiff relied on the evidence of P.W.1 to P.W.3. P.W.1 is the plaintiff and P.W.2 is sole attestor of Ex.A.1 promissory note. According to the defendant, P.W.2 is his colleague and his classmate. 17. As seen from the evidence of P.W.1, the defendant borrowed an amount of Rs. 6,15,000/- for his business needs on 11.08.2003 and executed Ex.A.1 promissory note in favour of the plaintiff. His evidence is clearly goes to show about the borrowing of Rs. 6,15,000/- and also execution of Ex.A.1 promissory note in favour of the plaintiff. 17. As seen from the evidence of P.W.1, the defendant borrowed an amount of Rs. 6,15,000/- for his business needs on 11.08.2003 and executed Ex.A.1 promissory note in favour of the plaintiff. His evidence is clearly goes to show about the borrowing of Rs. 6,15,000/- and also execution of Ex.A.1 promissory note in favour of the plaintiff. Though he was cross examined by the learned counsel for the defendant before the trial Court, nothing was elicited from him to disprove the case of the plaintiff. 18. In order to prove Ex.A.1 promissory note, the plaintiff examined the sole attestor in Ex.A.1 promissory note as P.W.2. His evidence also goes to show about the borrowing of Rs. 6,15,000/- by the defendant from the plaintiff and also execution of Ex.A.1 promissory note in favour of plaintiff. It is not the case of the defendant that he is having enmity with P.W.2 due to that he deposed falsehood against him. According to the defendant, P.W.2 is his colleague and also classmate. Therefore, I see no reason to disbelieve the evidence of P.W.2. 19. It was specifically pleaded by the defendant that the plaintiff has no capacity to lend money. The said defence was taken by the defendant in the written statement itself before the trial Court. In order to prove that the plaintiff is having sufficient capacity to lend money, plaintiff is relying on the evidence of P.W.3 and Ex.A.3 to Ex.A.5. P.W.3 is no other than own brother of the defendant. It is undisputed fact that the defendant had previous money transactions with the plaintiff and the own brother of defendant is continuing money transactions with the plaintiff. It is in the evidence of P.W.1 that the defendant in the earlier occasions used to borrow money from him and used to discharge the same and used to return the discharged promissory notes as and when the defendant discharged the amount. Furthermore, P.W.1 admits that the defendant was his client since 5 to 6 years. It is in the admission of P.W.1 that his son and daughter-in-law are staying in abroad and they are sending large sums of money to him from abroad and he also used to lend the same to others in the name of his son, daughter-in-law and also in his name. The said aspect is not at all disputed by the defendant. The said aspect is not at all disputed by the defendant. Furthermore, the evidence of P.W.3 also goes to show that P.W.3 is still continuing money transactions with the plaintiff and borrowing money under the promissory note and he has to discharge another promissory note amount. It is in the evidence of P.W.3 that in few matters the plaintiff appeared as counsel on their behalf, the plaintiff never insisted for fees due to close intimacy with their family and the plaintiff looked after their family affairs. P.W.3 deposed in his evidence in chief examination that the defendant never attended the cases of their family in Courts, by 1990 itself all the Court cases of their family were closed in the Courts except one case, which was pending before the High Court of Madras and which, was stayed. Furthermore, P.W.3 admits that there was a family partition in the year 2001 through Lok Adalat and Ex.A.2 is the Award passed by the Lok Adalat. It is not the case of the defendant that he is having enmity with his own brother i.e., P.W.3. In cross examination it was not suggested to P.W.3 by the learned counsel for the defendant that the defendant is having enmity with P.W.3 due to that he deposed falsehood against the defendant. 20. The evidence of P.W.1 and P.W.2 clearly goes to show about passing of consideration under Ex.A.1 promissory note from the plaintiff to the defendant. As per the case of the plaintiff, P.W.2 is the only attestor to Ex.A.1 promissory note. To discharge his burden and passing of consideration under Ex.A.1 promissory note, the plaintiff examined the sole attestor in the promissory note as P.W.2. The evidence of P.W.2 proves about passing of consideration under Ex.A.1 promissory note. As per the own case of the defendant, he himself scribed Ex.A.1 promissory note, the same is admitted by him in his evidence itself. In order to disprove the case of the plaintiff, the defendant examined himself as D.W.1. In cross examination, D.W.1 admits that the signature on Ex.A.1 promissory note belongs to him and he himself scribed the promissory note. Even though the initial burden is on the defendant to prove the non-passing of consideration under Ex.A.1 promissory note, the plaintiff to discharge his burden examined the sole attestor in the promissory note as P.W.2. In cross examination, D.W.1 admits that the signature on Ex.A.1 promissory note belongs to him and he himself scribed the promissory note. Even though the initial burden is on the defendant to prove the non-passing of consideration under Ex.A.1 promissory note, the plaintiff to discharge his burden examined the sole attestor in the promissory note as P.W.2. On the other hand, to disprove the evidence produced by the plaintiff, nothing was produced by the defendant except relying on his self-testimony as D.W.1. The evidence on record clearly undertakes after borrowing money under Ex.A.1 promissory note, the defendant himself scribed the Ex.A.1 promissory note and executed Ex.A.1 promissory note in favour of the plaintiff. 21. In R. Puthunainar Alhithan vs. P.H. Pandian and others 1996 (3) SCC 624 the Apex Court held that; "an inference from the proved facts must be so probable that if the Court believes, from the proved facts, that the facts do exist, it must be held that the fact has been proved. The inference of proof of that fact could be drawn from the given objective facts, direct or circumstantial". To prove the passing of consideration under Ex.A.1 promissory note, the plaintiff examined the sole attestor in the suit promissory note as P.W.2. As stated supra, his evidence clearly supports the case of the plaintiff. As noticed supra, the plaintiff also proved about the lending of money under Ex.A.1 promissory note. 22. In Pottem Subbarayudu and another vs. Kothapalli Gangulu Naidu and others 2000 (5) ALD 764 the composite High Court of Andhra Pradesh at Hyderabad held that; "There can be no straightjacket formula for the appreciation of oral evidence of the witnesses. The credibility of the witness is the paramount consideration for the Court. After passing the three legal tests viz., relevancy, admissibility, and competence of the witness, while considering the credibility of the witness, the Court has to consider various parameters so as to appreciable the oral evidence on the point by testing the same on the touch stone of two important yardsticks viz., the probabilities and surrounding circumstances among various other parameters. Even when no rebuttal is adduced by the adversary the ocular testimony of the witnesses examined on the side of the party on whom the burden lies, cannot implicitly be relied upon without testing the same with reference to the probabilities and surrounding circumstances". Even when no rebuttal is adduced by the adversary the ocular testimony of the witnesses examined on the side of the party on whom the burden lies, cannot implicitly be relied upon without testing the same with reference to the probabilities and surrounding circumstances". The trial Court accepted the evidence of P.W.1 and P.W.2 and also the trial Court held in its judgment by giving cogent reasons that the said promissory note is supported by consideration. Therefore, I am of the considered view that Ex.A.1 promissory note is proved by the plaintiff and the plaintiff also proved the passing of consideration under Ex.A.1 promissory note. 23. It was contended by the learned counsel for the appellant that the trial Court awarded interest at 12% per annum from the date of suit till the date of realization which is against law. 24. In the case of Central Bank of India v. Ravindra (2002) 1 SCC 367 , a Constitutional Bench of Apex Court held as follows: "Though interest can be capitalized on the analogy that the interest falling due on the accrued date and remaining unpaid, partakes the character of amount advanced on that date, yet penal interest, which is charged by way of penalty for non-payment, cannot be capitalized. Further interest, i.e. interest on interest, whether simple, compound or penal, cannot be claimed on the amount of penal interest. Penal interest cannot be capitalized. It will be opposed to public policy." The Apex Court further held as follows: "Subject to the above, we answer the reference in following terms: (1) Subject to a binding stipulation contained in a voluntary contract between the parties and/or an established practice or usage interest on loans and advances may be charged on periodical rests and also capitalized on remaining unpaid. The principal sum actually advanced coupled with the interest on periodical rests so capitalized is capable of being adjudged as principal sum on the date of the suit. (2) The principal sum so adjudged is "such principal sum" within the meaning of Section 34 of the Code of Civil Procedure, 1908 on which interest pendente lite and future interest i.e. post-decree interest, at such rate and for such period which the Court may deem fit, may be awarded by the Court." 25. (2) The principal sum so adjudged is "such principal sum" within the meaning of Section 34 of the Code of Civil Procedure, 1908 on which interest pendente lite and future interest i.e. post-decree interest, at such rate and for such period which the Court may deem fit, may be awarded by the Court." 25. In the case of Andhra Bank, Sultan Bazar, Hyderabad v. M/s. Manney Industries AIR 1993 (AP) 53 , the composite High Court of Andhra Pradesh held as follows: "This Bench is of the view that the discretion has to be exercised judiciously and supported by reasons for granting interest at 6% p.a. from the date of filing of the suit or rate higher than 6% p.a., and below the contractual rate of interest. In this case the unit has become sick immediately after its commencement and thereafter they could not pay the due amount and another person has taken over the unit and created an equitable mortgage and so under these circumstances and taking into consideration that they have not earned any yield or profit out of the transactions even from the inception of the unit itself and in view of the fact that the unit had become sick immediately after its commencement, the learned judge thought it fit and granted interest at 6% p.a., from the date of suit till the date of realization. Normally, this Court would not interfere with the discretion exercised by the Court below regarding the rate of interest, provided it satisfied the reasons that have been given by it are sound and reasonable. We fortified our view even by the decision reported in State of M. P. v. Nathabhai Desaibhai ( AIR 1972 SC 1545 ), wherein the Supreme Court took into account the conduct of the parties and the reasons given by them which are as follows: "Coming to the question of interest subsequent to the date of the institution of the suit, it was found that the appellant had unlawfully withheld the amount due to the respondent even after coming to know that the collection made was an illegal one. Before instituting the suit, the respondent had issued a notice to the appellant, calling upon the appellant to pay the money illegally collected from it; but despite that notice, the appellant failed to pay back the amount illegally collected from the respondent. Before instituting the suit, the respondent had issued a notice to the appellant, calling upon the appellant to pay the money illegally collected from it; but despite that notice, the appellant failed to pay back the amount illegally collected from the respondent. That being so, in our opinion, the High Court was justified in awarding interest on the principal amount from the date of the suit". In the special circumstances of the case, as found by the Court below, which are sound and well founded, granting interest at 6% p. a. from the date of filing of the suit till the date of realization is perfectly justified and does not warrant any interference by this Court." 26. On considering the aforesaid case law and in view of the aforesaid reasons, I am of the considered view that the respondent/plaintiff is entitled to an amount of Rs. 7,01,140/- with subsequent interest at the rate of 12% per annum on Rs. 6,15,000/- from the date of suit till the date of decree as ordered by trial Court, but the plaintiff is entitled the rate of interest at 6% per annum on Rs. 6,15,000/- from the date of decree till the date of realization. 27. The findings arrived by the trial Court on appreciation of the evidence in this case, therefore, are correct and do not call for any interference, except the rate of interest as indicated above. 28. In the result, the appeal suit is allowed in part by modifying the judgment and decree, dated 08.05.2006 in O.S. No. 84 of 2005 passed by the Additional Senior Civil Judge, Ongole, as the suit is decreed with costs for an amount of Rs. 7,01,140/- (Rupees seven lakh one thousand one hundred and forty only) with subsequent interest at 12% per annum from the date of suit till the date of decree on Rs. 6,15,000/- as ordered by trial Court and thereafter at 6% per annum on Rs. 6,15,000/- till the date of realization. Each party do bear their own costs in this appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.